No. 05-04-01281-CR
Opinion Filed June 28, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-73750-PT. Affirmed.
Before Justices WRIGHT, MOSELEY, and LANG.
Opinion By Justice MOSELEY.
A jury convicted Shannon Shermod Jones of aggravated robbery. During the punishment phase, appellant pleaded true to one enhancement paragraph. The trial court found the enhancement paragraph true, sentenced appellant to thirty-five years' confinement, and made an affirmative finding that appellant used or exhibited a deadly weapon, a firearm, during the commission of the offense. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
Steven Vo, a cashier at South Side Grocery store, testified that on September 15, 2003, he was robbed at gunpoint while working in the store. Vo testified that at approximately 8:45 p.m., he had turned from the cash register and walked to a television sitting on the counter near the register. Another employee had been watching a game, but that employee had gone to the restroom. After Vo turned off the television, he turned back around toward the register and saw a man standing at the counter. The man pointed two guns at Vo and demanded money. Vo identified appellant as the gunman. Vo testified appellant wore a mask that covered the lower part of his face, but Vo could see a teardrop tattoo under appellant's eye and noticed appellant had tattoos on his arms. Vo described the tattoos as praying hands and a candle. Appellant took the money from the register and took money and a gun from a drawer below the register. Vo testified that appellant's actions showed he already knew where the money was located. Vo testified the front door was a double door: one side was locked and one side was open. When appellant tried to run from the store with the money, appellant slammed into the locked side of the door and the gun went off. Appellant's mask came off and Vo saw that appellant had gold teeth at the front of his mouth. Appellant got up and ran from the store. Vo called the police. Vo testified that when the police arrived, he was "in a deep state of shock and was still scared," so he did not tell the officer about appellant's arm tattoos at that time. Vo told the officers the gunman had a teardrop tattoo under his eye, gold front teeth, and a hairstyle with a little hair in front with the rest shaved so close it appeared almost bald. A few days later, Vo was shown a photographic lineup, and he identified appellant as the man who had robbed him at gunpoint. Vo testified he had seen appellant in the store three or four times before the robbery, but never saw appellant in the store again after the robbery. Vo testified that a man who resembled appellant came into the store a few days after the robbery, but he left the store quickly. Vo told an officer who had come into the store to shop that a man who looked like the robber had just left the store. Vo told the officer that he was not 100-percent sure that man was the robber because the man did not open his mouth or show his arms. During the trial, Vo identified a photograph of appellant's arm tattoos as the ones he had seen during the robbery. Vo positively identified appellant in court as the man who had robbed him at gunpoint. Vo testified he based his identification of appellant upon the gold teeth and the tattoos on appellant's face and arms. Marcus Hester, a cook at the store, testified that after he had gone to the restroom while Vo turned off the television. When Hester was returning to the front, he saw a man pointing a gun at Vo and taking the money. Hester saw the gunman hit the locked side of the door. The gun went off once. Hester testified the gunman had a "do rag" covering the lower part of his face, but it came off when the gunman slammed into the door. Hester did not get a good look at the gunman's face, but he did see that the gunman had gold teeth. Detective James Smith testified he lifted fingerprints and palm prints from a display case inside the store and a pay telephone outside the store. None of the prints matched appellant. Officer Joshua Cordes testified that when he responded to the robbery call, he spoke with Vo, who was shaking and appeared scared and nervous. Vo told Cordes the gunman had a "tuft" of hair in front. Officer Willie Byrd testified that on September 18, 2003, he went into the store to purchase a drink. Vo told him about the robbery that had occurred a few days earlier. Byrd testified that Vo described the robber as a man with a bald haircut with the front part "similar to like Peewee Herman, the front part sweeping up." Vo also told Byrd the robber had a teardrop tattoo under his eye and tattoos of praying hands and a candle on his arms. Byrd testified he had seen appellant around the neighborhood and believed appellant fit the description. Byrd approached appellant, who was on foot nearby, because appellant had the hairstyle described by Vo. When appellant showed Byrd his arms, Byrd saw the tattoos that Vo had described. Byrd testified that Vo never told him a person who resembled the robber had just come into the store right before Byrd had entered the store. Latasha Pennington testified on appellant's behalf that she had known appellant for about four months before the robbery. Appellant lived within walking distance of the store that was robbed. Pennington testified she was not with appellant on September 15, 2003 and did not know what appellant did that day. A few days after the robbery, Pennington drove appellant to the store. She waited in the car while appellant went inside. Appellant stayed in the store about five minutes, then came outside and talked to a man for about five minutes. When appellant got in the car, Pennington drove him home. Later that same day, appellant told her a police officer had told him Pennington's car was involved in a robbery. Appellant did not testify at trial. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and 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); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened or placed Steven Vo in fear of imminent bodily injury or death while in the course of committing theft, and appellant used or exhibited a deadly weapon. See Tex. Pen. Code Ann. §§ 29.02, 29.03 (Vernon 2003). A "deadly weapon" means a firearm. Id. § 1.07(a)(17). Discussion
Appellant argues Vo misidentified appellant as the gunman. Appellant contends that because Vo never told the police the gunman had tattoos until after Vo saw appellant in the store several days after the robbery, Vo's testimony was based solely on what Vo saw after the robbery. Appellant further argues the State did not present any physical evidence or statements made by appellant that linked appellant to the robbery. Vo positively identified appellant as the man who robbed him at gunpoint. Vo told the responding officer on the date of the offense that the gunman had gold teeth, a teardrop tattoo on his face, and a distinctive hairstyle. Vo identified appellant from a photographic lineup a few days after the robbery. Vo testified he had seen appellant several times in the store before the robbery had occurred, and the robber seemed to know where the money was located. Vo also testified that he saw appellant's arm tattoos during the robbery and described those tattoos to the police. Appellant essentially asks us to find that Vo's testimony is not credible. However, the jury was the sole judge of the weight and credibility of the witnesses and their testimony, and it was the jury's function to resolve the conflicts in the evidence. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); see also Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd). We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Having reviewed all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support the conviction. See Sanders, 119 S.W.3d at 820; Zuniga, 144 S.W.3d at 484. We overrule appellant's points of error. We affirm the trial court's judgment.