Opinion
No. 01-03-00786-CR
Opinion Issued September 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.4.
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 929,218.
Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
MEMORANDUM OPINION
Hershel Franks, appellant, was charged with the offense of aggravated robbery. After pleading not guilty to the offense and true to both enhancement paragraphs — one for robbery and the other for aggravated robbery — the trial court found appellant guilty and assessed his punishment at 45 years' confinement. In his sole issue, appellant challenges the factual sufficiency of the evidence to sustain his conviction. We affirm.
See TEX. PEN. CODE ANN. § 29.03 (Vernon 2003).
Facts
On the morning of November 1, 2002, Ismail Badat was working as a cashier at a convenience store in north Houston when a man came into the store and asked for two packs of cigarettes. Once Badat put the packs of cigarettes on the counter, the man pulled out a knife, dropped a glove and a bag he was holding, walked behind the counter, held the knife to Badat's neck, and demanded money. Badat opened the register, and the assailant stole approximately $70. The assailant then asked Badat to lock the store entrance. When Badat was near the entrance, he ran out of the store; his assailant followed behind him. Immediately after the robbery, as appellant and Badat were running out of the store, Willie Greer approached the store and saw Badat chasing appellant. Greer testified that he saw appellant climb over a nearby fence and run through the woods. Greer then drove to an adjacent street to try to locate appellant's position. Officer Orus Baldwin with the Houston Police Department was called to the scene. Greer told Baldwin that the robber had run into the woods. Baldwin found appellant hiding in a drainage pipe. Appellant was subsequently arrested and charged with aggravated robbery. At trial, Baldwin testified that he recovered a glove and some money from appellant. Nearby, officers also recovered the knife used in the robbery. After appellant was arrested, he was taken back to the store where both Badat and Greer identified appellant as the person who had committed the robbery.Discussion
In his sole issue presented, appellant contends the evidence is factually insufficient to support his conviction because the State failed to identify him as the person who committed the robbery. We review the factual sufficiency of the evidence by reviewing all the evidence as a whole neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In a factual sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). The Court of Criminal Appeals has recently stated:There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex.Crim.App. Apr. 21, 2004) (footnote omitted). We must consider the most important evidence that the appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Appellant contends the evidence is insufficient because (1) no one gave a sufficient description of the robber that could be used in comparison to him; (2) the money found on him was not identified as the same money that was stolen from the register; (3) he did not have the money or the knife on him when he was arrested; and (4) the two gloves found, one on his person and the other at the store, were not compared. However, Badat clearly identified the appellant as the individual who had robbed him at knife-point, and Greer identified appellant as the person he saw fleeing the store after the robbery; the knife used to carry out the robbery was found within 15 to 20 feet from the drainage pipe where appellant was hiding; appellant was found to be in possession of some money; and he was wearing one glove while another was recovered from inside the store. The question of whether the money on the appellant was the same money stolen from the register, the comparison of the gloves, and the credibility of the witnesses who identified the appellant as the individual carrying out the robbery are all factors for the fact finder to consider in weighing the evidence. A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Although appellant testified that he was not the robber, what weight to give contradictory testimonial evidence is within the sole province of the fact-finder, as it turns on an evaluation of credibility and demeanor. Id. at 408-09. Thus, the fact-finder was free to believe or disbelieve all or any part of the testimony of the State's witnesses and appellant. After examining all of the evidence neutrally, we hold that the proof of guilt was not so obviously weak as to undermine confidence in the jury's determination; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant's sole point of error.