No. 05-08-01069-CR
Opinion Filed February 26, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the Criminal District Court Number 1, Dallas County, Texas, Trial Court Cause No. F-04-73231-TIH.
Before Justices MOSELEY, RICHTER, and FRANCIS.
Opinion By Justice RICHTER.
A jury convicted Stoney Horace of aggravated robbery and assessed punishment, enhanced by a prior felony conviction, at forty-five years' imprisonment. In three issues, appellant argues the evidence was legally and factually insufficient to support his conviction and the trial court erred in allowing improper jury argument during the punishment phase of the trial. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Sufficiency of the Evidence
Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence to support a criminal conviction, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The State was required to prove beyond a reasonable doubt that in the course of committing theft and with the intent to obtain and maintain control of property, appellant intentionally or knowingly threatened Moore or placed him in imminent fear of bodily injury or death and used or exhibited a deadly weapon. See Tex. Penal Code Ann. §§ 29.02 (2), 31.03 (Vernon Supp. 2009-2010); Tex. Penal Code Ann. § 29.03(a) (2) (Vernon 2003). Evidence Presented
On August 2, 2004, Howard Moore and Rachel Kirby arrived for work at a Starbucks store at 5:00 a.m. When he entered the store, Moore turned off the alarm, re-locked the front door, and entered the back office. Approximately five minutes later, he heard Kirby scream. When Moore came out of the office, he saw a man who had grabbed Kirby by the collar. Moore described the man as skinny, about six feet tall, African-American and dressed in dark jeans with a white bandanna over the lower part of his face. The man, who was not wearing gloves, pointed a .22 six-shot revolver at Moore and said, "Take me to the money." Moore took the robber to the store's safe and entered the code to unlock it. The safe had a ten-minute delay on the locking system, so it would not immediately open. Annoyed that the safe would not open right away, the robber threatened to kill Moore if he did not open it immediately. Moore cried, begged for his life, and gave the robber forty dollars out of his own pocket. The robber ordered Moore down on the floor where he had placed Kirby and ordered the two not to look at him. Four security cameras were on at the time of the robbery, and at some juncture, the robber noticed the monitor for the cameras in the office. The robber "messed with" the monitor for a minute and then turned the switch to the "off" position. When the safe could be opened, the robber handed Moore a blue canvas bag and told him to put the money inside the bag. When Moore reported that the money would not fit in the bag, the robber picked up a trash can and told Moore to put the money in the plastic liner. Moore complied, placing the money from the cash till and a bag containing tip money into the plastic bag. Moore omitted to inform the robber, however, that a top compartment in the safe contained the majority of the cash receipts. Therefore, the robber did not take the money in the top of the safe. The robber left the blue canvas bag in the store. As he prepared to exit, the robber told Kirby and Moore that he would come back and kill him if they tripped a silent alarm or called the police before he was "out of there." Kirby and Moore waited for five to ten minutes after the robber left before calling the police. When the police arrived, both Kirby and Moore provided a description of the robber. Later that day, Moore discovered that a low window by the back door had been broken. But the broken glass was not by the window; it had been removed from the area and placed in a dumpster. Neither Moore nor Kirby were aware of how the broken glass ended up in the dumpster, but believed it was possible that the robber had cleaned up the glass. Subsequently, Moore and Kirby were shown a six-man photographic array, and both identified appellant as the robber. At trial, Moore testified that he did not get a good look at the robber's face. He also said that he saw the robber's face for a few seconds when the bandanna fell. In the courtroom, Moore identified appellant as the robber and stated that he was one hundred per cent sure about his initial identification of appellant because of his eyes. Moore had never seen appellant in the store prior to the robbery. His certainty concerning his identification of appellant stemmed from having spent fifteen minutes with appellant during the commission of the offense and from looking straight into appellant's eyes. Moore stated, "I will never forget those eyes." Moore admitted that he had forgotten some of the details of what he had discussed with the police in the four-year lapse between the time of the offense and the time of trial. Moore testified that on the day of the robbery he received a call at about 4:30 a.m. from an employee who was scheduled to work that day. The employee informed Moore that he was unable to work, so Moore called his girlfriend, Kirby, to replace the absent employee. Kirby also testified about her identification of appellant in the photographic array. Kirby stated that she only observed the robber for thirty seconds to a minute, and never saw the bandanna slide down the robber's face. Kirby recognized appellant because of his eyes. On cross-examination, Kirby denied that her initial identification of appellant was tentative, and claimed that at the time she selected appellant's photograph from the array, she was "100 per cent sure" and "positive" that appellant was the robber. Kirby further testified that she lived with Moore and spent the night prior to the robbery with Moore at their apartment. According to Kirby, Moore had known for several days that the employee scheduled to work that day was unable to do so, and she had volunteered to work in his place. Detective Michael Epple testified that he was dispatched to the Starbucks store on the morning of the robbery. He talked to Moore and Kirby, took photographs, and collected evidence. Detective Epple noticed that a window near the side door had been broken "from the outside in," and there were glass shards leading from the window to the dumpster. Inside the dumpster, the detective found a box and pieces of glass of the same texture and color as the broken glass. The detective processed the glass for fingerprints. Nine latent prints were retrieved from the inside of the broken glass, and five latent prints were lifted from the exterior side of the glass and were submitted to Detective Blank for identification. Detective Epple also retrieved the blue canvas bag from the scene. Although the bag was processed for fingerprints, no prints were successfully lifted. Detective Michael Swain testified that he investigated the offense. After being informed that appellant's fingerprint had been identified in evidence found at the crime scene, he placed appellant's photograph in a lineup and met with Moore and Kirby. He described Kirby's identification of appellant as "tentative" and reported that Kirby said she thought appellant was the robber. On the other hand, Moore was very firm in his identification of appellant and stated that he was sure. Swain further testified that both Kirby and Moore stated that they could see the robber's face all the way down to his upper lip because his face was only partially covered by the bandanna. Swain did not recall whether Moore told him the bandanna had fallen off of the robber's face. Swain also explained that although the robbery was videotaped by security cameras, the video was lost after an unsuccessful attempt to reproduce it in a technologically updated form. Detective Kenneth Blank testified that he examined latent fingerprints he received from Detective Epple, and concluded that appellant's right thumb print and left middle finger appeared on the interior surface of the broken glass evidence. Some of the other fingerprints deposited on the exterior of the glass pieces were of such poor quality that he could neither identify nor eliminate appellant. Detective Blank confirmed, however, that the good quality prints that were removed from the exterior surface of the broken glass did not belong to appellant. Appellant did not present any evidence at the guilt-innocence phase of trial. Discussion
In his first two issues, appellant contends the evidence is legally and factually insufficient to support his conviction because he was misidentified as the robber. Specifically, appellant challenges Moore and Kirby's identification of him based on his eyes because he maintains there is nothing unusual or unique about his eyes. Appellant also argues the evidence is insufficient because: (1) Moore was not truthful about Kirby residing with him and the fact that he did not call her in to work on the morning of the robbery; (2) the robber touched the video monitor and the trash can, but the investigating officers made no attempt to lift fingerprints from these items; (3) appellant's fingerprints were found only on the interior side of glass that had been broken from the outside; (4) the videotape of the robbery was not available for the jury to view; and (5) the evidence failed to establish how and by whom the broken glass was deposited in the dumpster. The jury heard Moore's testimony that he was certain appellant was the robber. Although the robber's facial features were partially obscured by the bandanna, the bandanna slipped for a few seconds and provided Moore with an opportunity to briefly view the robber's entire face. Moore assured the jury that he was able to see the robber's facial structure. Moore also testified that he looked directly into the robber's eyes, and was certain of his identification because he spent fifteen minutes with appellant during the commission of the offense. Despite Detective Swain's characterization, Kirby denied that her identification of appellant was "tentative." Like Moore, she was positive in her identification of appellant as the robber. It was the jury's function to determine if there was insufficient time to make an identification or the robber's face was sufficiently visible to make a positive identification. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). It was also the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Id.; Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Moreover, even if Kirby's testimony were to be discounted, Moore's testimony alone would be sufficient to support the conviction. See Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd). The jury also heard testimony concerning the positive identification of two of appellant's fingerprints on the inside of the broken window glass. Thus, there was an evidentiary connection between appellant and the broken glass. Even though the evidence showed the window had been broken from the outside, Detective Blank testified that he could neither identify nor eliminate appellant's prints from the poor quality prints deposited on the exterior side of the glass. As the sole judge of the facts, the jury was free to make reasonable inferences concerning how appellant's fingerprints were deposited at the scene. Appellant's challenge to Moore's credibility is similarly unpersuasive. The jury was free to believe or disbelieve any portion of Moore's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the jury resolved the conflicts in favor of the prevailing party. See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Finally, we reject appellant's argument concerning the evidence the State did not present. A lack of physical evidence does not necessarily render the evidence insufficient. See Santos v. State, 116 S.W.3d 447, 459 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (rejecting argument that lack of fingerprints connecting appellant to robbery rendered evidence insufficient). Instead, a lack of physical or forensic evidence is simply a factor for the jury to consider in weighing the evidence as a whole. See Lee v. State, 176 S.W.3d 452, 458 (Tex. App.-Houston [1st Dist.] 2005), aff'd, 206 S.W.3d 620 (Tex. Crim. App. 2006). Significantly, appellant does not claim there was no forensic or physical evidence-he simply asserts there should have been more. But even without the videotape and the canvas bag, a rational jury could have found the elements of the crime beyond a reasonable doubt. Viewing all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Vodochodsky, 158 S.W.3d at 509. We resolve appellant's first two issues against him. Improper Jury Argument
In his third issue, appellant asserts the trial court erred in allowing improper jury argument. Specifically, appellant contends the trial court erred in overruling his objection to a comment made by the State that was not based on evidence admitted before the jury. The State counters that the comment was not outside the record and constituted a proper plea for law enforcement. We agree with the State. Applicable Law
We review a claim of improper jury argument for an abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Permissible jury argument falls into one of four general areas: (1) summation of evidence; (2) reasonable deductions from evidence; (3) answers to arguments of opposing counsel; and (4) pleas for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). To be reversible error, the remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Discussion
During final arguments at the punishment hearing, the State argued, ". . . it is time to put a stop to him. We cannot have this criminal master mind training people how to do aggravated robbery." When appellant objected that the argument was outside the record, the court overruled the objection. Prior to final arguments, the State introduced evidence of appellant's criminal history, which included a felony conviction for "aggravated battery," a felony conviction for escape, a misdemeanor conviction for assault, a conviction for the state jail offense of burglary of a building, and a misdemeanor conviction for evading arrest. There was also evidence that appellant was involved in an aggravated robbery/capital murder at an Ace Check Cashing store. Detective Kenneth Mackenzie testified that he interviewed appellant in connection with the Ace case. Before the interview, Mackenzie had concluded that a clever person had been involved in the crime. Someone had figured out how to go through sheet rock walls inside empty businesses next to the Ace store so as to gain entry in the Ace restroom. When Mackenzie questioned appellant, he admitted to participation in and management of the offense. The perpetrator was not very smart, so appellant had to help him. Appellant admitted that on the day before the offense, he visited the Ace store to survey its layout. Appellant told Mackenzie that he had cut the lock on the suite next to the Ace store, and was involved in cutting through the wall to enable the robber to get into the Ace restroom. Appellant also admitted that he accompanied the robber on the day of the offense and was stationed outside in the parking lot. Appellant counseled the robber to wear his socks on his hands because he did not have gloves. During the commission of the offense, appellant spoke with the robber many times by cell phone from his station in the parking lot. Appellant told the robber he was taking too much time and advised him to leave the store because there was too much activity in the parking lot. Appellant also provided the robber with advice when the robber told him someone was on the floor bleeding. Appellant testified at the punishment phase and denied his participation in the Ace crime. According to appellant, he was threatened during his post-arrest interrogation. But this merely establishes that there is contrary evidence; it is not instructive to our analysis of whether there was any evidence in the record to support the prosecutor's comments. Having reviewed the arguments and the evidence, we conclude the prosecutor's comment was permissible. The statement may have contained a characterization of appellant as a "criminal master mind," but the characterization was based on evidence adduced at trial. The State is allowed wide latitude in drawing inferences from the evidence, so long as the evidence is reasonable and offered in goof faith. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997). In addition, the prosecutor's statement was made as part of an argument that justice would be best served by the imposition of a life sentence. Given this context, the statement was not an argument outside the record, but rather a proper plea for law enforcement. See Huseman v. State, 96 S.W.3d 368, 376-77 (Tex. App.-Amarillo 2002, pet. ref'd).Therefore, we conclude the trial court did not abuse its discretion in overruling appellant's objection to the argument. Appellant's third issue is overruled. Having resolved all of appellant's issues against him, we affirm the trial court's judgment.