Opinion
NO. 01-10-00844-CR
08-11-2011
DAMION ROBERTS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1253272
MEMORANDUM OPINION
A jury found appellant, Damion Roberts, guilty of the offense of aggravated robbery and assessed his punishment at confinement for fifty years. In his sole point of error, appellant contends that the evidence is legally insufficient to support his conviction.
See TEX. PENAL CODE ANN. § 29.03 (Vernon 2011).
We affirm.
Background
Jose Acosta, a branch manager of a bank in Houston, testified that on June 11, 2009, appellant and another man entered the bank. Appellant approached Acosta, showed him a handgun, and threatened to kill him if he pushed an emergency button. Appellant then approached another bank teller, Unyime Ibiok, and when Acosta attempted to push the emergency button, appellant again threatened to kill him if he pushed the button. Appellant told Acosta and Ibiok to open the bank's vault and give him money. Acosta filled an old pillowcase with money, but placed a tracking device in the pillowcase before giving it to appellant. As appellant and his accomplice left the bank, appellant told Acosta and Ibiok to remain in the vault. Once the assailants exited the bank, Acosta and Ibiok called for emergency assistance.
Several weeks, or "maybe" a month later, police officers contacted Acosta and asked him to observe a "live lineup." Acosta and Ibiok drove together to a police station for the lineup and met with Houston Police Department ("HPD") Sergeant B. Madden and one other police officer. The lineup consisted of five or six men, and the officers instructed each of these men to repeat the phrase, "If you push the button, I'm going to kill you." Acosta explained that he identified appellant "as soon as [he] came out" into the lineup. After the lineup, the officers asked Acosta and Ibiok individually whether they could identify any of the men, and Acosta informed the officers that he was "positive" that appellant was the man who had robbed the bank.
Acosta noted that he had spent five to ten minutes with appellant during the course of the robbery, he was in close proximity to appellant during this time, and he was within one foot of appellant's gun and two to three fee of appellant. Acosta explained that he identified appellant during the lineup based on both his "appearance and voice." Acosta agreed that, as reflected in surveillance pictures from the bank that were introduced into evidence, the man who robbed him was wearing a hat, sunglasses, and a bandana on his head, which came down to "above his eye level." However, Acosta stated that he could see through the sunglasses and he could see appellant's "nose and the bottom of his face." Acosta then identified appellant in the courtroom as the man who robbed him.
Ibiok testified that she noticed two men enter the bank who were acting suspiciously. One of the men was shorter and "stocky" and wore a buttoned shirt, black hat, and sunglasses. The other man wore "one big overall" with a cap and sunglasses. The stocky man approached her carrying a handgun and told her not to move. Ibioik pressed an emergency button, and the stocky man instructed her to open an internal door to get inside the bank area and then open the vault with Acosta. The man, who was pointing the gun at both Ibiok and Acosta, gave Ibiok a pillowcase in which Acosta was to place money. Ibiok was standing "close" to the man, but she did not "look at his face."
Ibiok, with Acosta, subsequently observed a lineup at a police station, where they met with Sergeant Madden and another officer. She noted that the officers did not suggest who the suspect might be or if there was a suspect in the lineup. Ibiok explained that most of the individuals in the lineup were "similar" and she identified appellant as one of the men who robbed the bank. She remembered that appellant had been wearing a cap with sunglasses at the time of the robbery. When presented with surveillance photographs, Ibiok acknowledged that appellant was also wearing a rag across the top part of his head and the "only part" of his face that was visible was his "cheek and nose and mouth area." She did not look at appellant's face and only noticed "his physical, as in his weight," including his weight, height, and build. Ibiok explained that she "picked who best fit what [she] remembered," she based her identification on "the physical aspect," and she did not recognize appellant's voice during the lineup. When asked if she could identify appellant in the courtroom as the person who robbed her, she said that she was "not certain."
Sergeant Madden testified that after the robbery, officers received a tip upon which they determined that appellant was a suspect in the robbery. Two days after the robbery, officers went to a residence where appellant was reportedly residing. Officers met appellant's grandmother, who lived at this residence, and upon showing her surveillance pictures from the bank, she "started crying." Madden determined that appellant stayed at her residence, and he recovered a shirt and a pillowcase "with some flowers on it," which he believed matched the description of the pillowcase used in the robbery.
Madden later placed appellant in a live lineup in which he included five other males "with similar characteristics," but he agreed that the other men "may not [have been] as stocky" as appellant. Madden presented the lineup to Acosta and Ibiok and admonished them that a suspect might or might not have been in the lineup. Madden spoke with Acosta individually after the lineup, and he positively identified appellant as the person who had robbed him. Ibiok also identified appellant, and Madden did not recall Ibiok saying anything about not being able to recognize his face.
Standard of Review
We review the legal sufficiency of the evidence "by considering all of the evidence in the light most favorable to the prosecution" 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, 318-19, 99 S. Ct. 2781, 2788-89 (1979). Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). However, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id.
Sufficiency of the Evidence
In his sole point of error, appellant argues that the evidence is legally insufficient to support his conviction because the State "failed to show that [he] was one of the people who robbed" the bank and the facts that "tend to show that [he] did not rob" the bank "overwhelmingly outweigh the evidence [that] shows that he did." Appellant asserts that the "robber's clothing masked his identity," Ibiok did not see the robber's face, Ibiok's identification was based on "his stocky build," he was not one of the men "taken from the apartment complex who had been standing near the red Dodge to the bank for possible identification," and the DNA evidence "suggest[ed] a low probability of guilt."
A person commits a robbery if, in the course of committing theft and with intent to obtain or maintain control of property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. TEX. PENAL CODE ANN. § 29.02(a)(2) (Vernon 2011). A person commits aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Id. § 29.03(a)(2) (Vernon 2011). A firearm is considered a deadly weapon. Id. § 1.07(a)(17)(A) (Vernon Supp. 2010).
Here, Acosta positively identified appellant in a lineup as the man who robbed the bank. Acosta testified that he immediately identified appellant "as soon as [he] came out" for the lineup. Acosta noted that, during the robbery, he had been in close proximity to appellant for five or ten minutes. Acosta explained that although appellant was wearing a hat, sunglasses, and a bandana, he could see through the sunglasses and he could see appellant's "nose and the bottom of his face." Acosta also noted that he identified appellant based on both his "appearance and voice," and he again identified appellant in the courtroom as the man who robbed him. It is well established that the testimony of a single eyewitness may be legally sufficient to support a conviction of a criminal offense. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (upholding a conviction for attempted murder where only one witness saw appellant with a gun); Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (affirming a conviction for aggravated robbery where central issue involved a single witness's credibility); see also Proctor v. State, 319 S.W.3d 175, 185 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex. Crim. App. 2006).
Additionally, Sergeant Madden explained that he presented the lineup, which included appellant and five other males "with similar characteristics," to Acosta and Ibiok and that both complainants identified appellant as the man who robbed the bank. Madden denied that Ibiok had qualified her identification by telling him that she could not identify appellant's face. Madden also stated that, two days after the robbery, officers received a tip about appellant's potential involvement, he went to appellant's grandmother's house where appellant was reportedly residing, and he recovered a shirt and a pillowcase "with some flowers on it" that matched the description of the pillowcase used in the robbery.
As noted by appellant, during trial, Ibiok did testify that she had informed officers that she could not identify appellant by his face, but, rather, could only identify him based upon physical characteristics such as body build. This testimony does conflict with Madden's about the strength of her identification. Ibiok also agreed that she could not be certain of identifying appellant in the court room. In regard to the lineup, Madden, on cross-examination, agreed that none of the other individuals included in the lineup were as "stocky" as appellant. But he did testify that the men were similar, and Ibiok supported this testimony. Finally, HPD criminalist Davis agreed that, based upon his review of biological samples taken from appellant and from the hat found in the Dodge, there was "not a high probability, but [appellant] could not be excluded from the hat." The jury was entitled to consider all of this evidence, resolve any conflicts in the testimony, and evaluate the credibility of the witnesses. See Williams, 235 S.W.3d at 750 (stating that it is the function of the trier of fact to resolve any conflict of fact, to weigh any evidence, and to evaluate the credibility of any witnesses). Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction.
We overrule appellant's sole point of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Bland, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).