Opinion
No. 05-19-00510-CR
08-11-2020
On Appeal from the Criminal District Court No. 5 Dallas County, Texas
Trial Court Cause No. F-1358240
MEMORANDUM OPINION
Before Justices Osborne, Partida-Kipness, and Pedersen, III
Opinion by Justice Pedersen, III
A jury convicted appellant Joan Nois of aggravated robbery and assessed his punishment at forty years' confinement and a fine of $10,000. Appellant raises a single issue in this Court, challenging the sufficiency of the evidence supporting the jury's verdict. We affirm the trial court's judgment.
Background
Alejandra Jasso was working as a sales representative at a T-Mobile store the morning of July 2, 2013. Jasso noticed a green Honda back up in front of the store; after some time passed, two men got out of the car and rushed into the store holding guns. Jasso, who was pregnant at the time, was afraid and ducked under a desk. One of the men grabbed her wrist and pulled her to the back of the store where a locked, caged area held the store's inventory of cell phones. The man wore a hat, sunglasses, and gloves, and he had a scarf pulled up over his face. While he held the gun, he ordered Jasso to fill the trash bags he had brought with phones. At one point while she was loading the bags, the scarf fell down; Jasso was able to see the man's beard and, when he looked down, his eyebrows. He ordered her to look away, and she did. After approximately fifteen minutes, having filled two or three bags with phones, the men left the store.
The only other person in the store at the time was Jasso's co-worker. She did not testify at trial.
Jasso locked the door and watched the men load the bags in the trunk of the Honda before a third man drove the car away. She wrote down the Honda's license plate and then called the police. Detective Angela Nordyke responded to the call and oversaw the subsequent investigation. Jasso reported the details of the robbery to Nordyke, including the facts that one of the men had a beard and that the trash bags he brought were white with orange ties. While the detective was still at the store, she received a call concerning a car fire. Officers found the car: a green Honda with a license plate almost identical to the number Jasso had written down. The car had been stolen and abandoned in a parking lot not far from the T-Mobile store.
The police obtained a surveillance video from the store, but because the robbers had covered their faces and heads, it was of little help to the investigation. About two weeks later, the police released information about the Honda and the robbery, hoping to get assistance through the media. The following day, an anonymous tip informed the police that someone had seen people transferring property from the Honda to a light-colored SUV. They were told that the SUV "was linked to several different aggravated robbery offenses" and that it was parked in an apartment complex parking lot at an address given by the caller. The tip also identified a particular apartment in that complex. A police deployment unit began surveillance at that address. The officers observed a woman repeatedly leave the apartment, place items in the SUV, and then return to the apartment. They later observed appellant leave that apartment, get into an Audi that was parked next to the SUV, and drive away.
During the time officers were surveilling the SUV and apartment, Detective Nordyke and Officer Daniel Mulvihill researched the SUV and determined that appellant had been issued a number of traffic tickets while driving it. Accordingly, Mulvihill stopped appellant after he left the parking lot in the Audi and arrested him on outstanding traffic warrants. When he was arrested, appellant had a cell phone and $2,600 in cash in his possession. Subsequent investigation determined that the cell phone was one taken during the robbery and that appellant had purchased the Audi by making a $5,000 cash down payment. Appellant was not employed at the time. With the consent of appellant's mother—who shared the apartment with appellant—Nordyke searched the apartment and found white trash bags with orange ties in appellant's room. Police sent a photograph of appellant to the T-Mobile store and informed Jasso that they believed he was the man who had robbed her.
Appellant was charged with aggravated robbery. At trial, Jasso identified appellant as the robber. The jury found appellant guilty of aggravated robbery and assessed his punishment at forty years' confinement and a $10,000 fine.
This appeal followed.
Sufficiency of Evidence of Identity
In his single issue, appellant contends there is insufficient evidence to support the verdict. Specifically, he argues that the evidence is insufficient to prove that he was the man who robbed Jasso at the T-Mobile Store. The State is required to prove beyond a reasonable doubt that the accused is the person who committed the crime charged. See Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App.1984).
In conducting a review of the legal sufficiency of evidence, we do not evaluate the weight of the evidence. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Nor do we replace the factfinder's judgment with our own. Id. We review appellant's challenge by examining the evidence in the light most favorable to the verdict 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). "[T]he identity of the perpetrator of an offense can be proved by direct or circumstantial evidence." Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986).
Jasso identified appellant at trial as the man who grabbed her wrist and pointed a gun at her. Appellant challenges that identification as unreliable because, he contends, it was based upon Jasso's earlier viewing of the single photo of appellant rather than a photo lineup. Jasso testified that she spent approximately fifteen minutes close to appellant while he filled bags with cell phones. At one point during that time, the scarf covering his face dropped, and she saw his mouth area and facial hair; he looked down, and she saw his eyebrows. When defense counsel challenged her ability to identify appellant as one of the men in the surveillance video, Jasso testified: "For what I [saw] when we were in the cage, I do identify him." At the close of her testimony, defense counsel again asked her "but you cannot be sure that that was Mr. Nois on that video, correct?" This time, appellant answered "yes." We acknowledge that Jasso's identification was equivocal. However, "an equivocal identification will not make a verdict improper for lack of evidence if other evidence corroborates it." Anderson v. State, 813 S.W.2d 177, 179 (Tex. App.—Dallas 1991, no writ). Here, so long as there is corroborating evidence, Jasso's uncertainty goes to the weight of her testimony, which was a matter for the jury. See id.
Appellant relies on cases that address the admissibility of unreliable identifications. See, e.g., Brown v. State, 64 S.W.3d 94, 99 (Tex. App.—Austin 2001, no pet.) (reviewing trial court's ruling on pretrial motion to suppress identification). However, there was no objection to the admissibility of Jasso's identification of appellant. Instead, this appeal is predicated on a challenge to the sufficiency of the evidence of appellant's identity as the perpetrator of the aggravated robbery, which is governed by a different standard than admissibility of evidence.
The State developed and presented evidence of appellant's guilt that was independent of Jasso's in-court identification. Jasso described the color and make of the car in which the robbers fled and recorded its license plate correctly within a single digit. Her description of the car was released to the public, and it generated the tip that led to appellant's location and arrest on outstanding traffic warrants. The State presented evidence that, when appellant was arrested, he was in possession of one of the cell phones stolen in the robbery as well as $2600 in cash. There was also evidence that he had purchased the Audi he was driving at the time of his arrest with a $5,000 cash down payment, although Nordyke testified that appellant was not working at that time. Jurors could have reasonably inferred that appellant's cash represented the proceeds from selling the stolen cell phones. Police also discovered trash bags—matching Jasso's description of the bags used in the robbery—in appellant's room in the apartment he shared with his mother. Thus, ample circumstantial evidence corroborated Jasso's identification of appellant as the robber. See id.
Detective Nordyke testified that only two internet searches had been made on the phone; one was for information about robberies in the Dallas area.
Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found appellant was the perpetrator of the aggravated robbery with which he was charged. The evidence was legally sufficient to support the jury's verdict. We overrule appellant's single issue.
Conclusion
We affirm the trial court's judgment.
/Bill Pedersen, III//
BILL PEDERSEN, III
JUSTICE 190510f.u05
Do Not Publish
TEX. R. APP. P. 47
JUDGMENT
On Appeal from the Criminal District Court No. 5, Dallas County, Texas
Trial Court Cause No. F-1358240.
Opinion delivered by Justice Pedersen, III. Justices Osborne and Partida-Kipness participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 11th day of August, 2020.