No. 05-09-00145-CR
Opinion Filed November 30, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-41174-KM.
Before Chief Justice WRIGHT and Justices FITZGERALD and MURPHY.
Opinion By Justice MURPHY.
Ernest Tate waived a jury and pleaded not guilty to robbery. After finding appellant guilty, the trial court assessed punishment, enhanced by a prior felony conviction, at twelve years' imprisonment. 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.
Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, 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. 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). In a factual sufficiency review, an appellate court views 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.), cert. denied, 552 U.S. 920 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 552 U.S. 842 (2007). 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). To obtain a conviction for robbery, the State was required to prove beyond a reasonable doubt that appellant, in the course of committing theft and with intent to obtain or maintain control of the property of Jeffrey Michelle, intentionally or knowingly threatened or placed Michelle in fear of imminent bodily injury. See Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003). Evidence Presented
Jeffrey Michelle, the complainant, testified that on September 16, 2007, appellant robbed him as he left a convenience store. Michelle had stopped at the store for a soft drink around 1:00 a.m. on his way home. He had parked his car on the right side of the building. There was lighting in the area. As he walked back to his car, he had his drink in one hand and money in the other hand. While he was putting the money in his shirt pocket, "[i]t felt like something hit [him] on the side of the head and then [he] was tackled." Michelle testified he saw a "blur coming at [him] and [he] got hit." They both fell to the ground, but appellant got away with $214. Michelle testified he sustained a "busted lip" during the robbery, and he was in fear because appellant was a "big guy" who stood at least six feet four inches and weighed about 250 pounds. Michelle initially chased appellant on foot through a field and into a muddy creek, then he ran back to his car, got in, and drove into the field after appellant. He saw appellant run into a motel parking lot. Michelle got out of his car and chased appellant on foot through the lot. He was also on his cell phone calling the police. At one point, Michelle lost sight of appellant. Michelle ran to the front of the motel and encountered a security guard, who told him to stop. Michelle stopped and continued talking to the police on his cell phone, giving them appellant's description. Several days later, officers showed Michelle a photographic lineup. Michelle identified appellant as the man who had robbed him and knocked him down. Michelle also testified he had prior felony convictions for aggravated assault and burglary of a habitation and was on parole at the time of the robbery. Daniel Taylor testified he worked as a security guard at the motel. One of the things he was hired to prevent was a constant prostitution problem. When he arrived the evening of September 16, 2007, he saw appellant "going" from a truck to one of the motel rooms. Taylor drove around to the front of the motel and parked. A few minutes later, he saw appellant running past him off the property toward Interstate-80. About a minute later, Michelle came running to the front of the motel and said he "just got robbed." Michelle was talking on his cell phone when he was at the front of the motel. Taylor testified the motel parking lot is well lit and he saw both appellant and Michelle clearly. Michelle said he was chasing appellant. Appellant denied robbing Michelle, testifying instead that a man named Charles Holmes was the suspect. Appellant testified he had a chronic problem with blood clots in his left leg and he has been under medical care at the Veteran's Hospital for six or seven years. Appellant showed the trial judge surgery scars on his legs. Appellant testified that he, Charles Holmes, and one of Holmes's female friends rented a room at the motel. The room was in appellant's name because he was the only person who had identification. Holmes had told appellant that the woman would help out on the rent if they "watched over her — so to speak," because she had some prior bad experiences when bringing men to a motel room. According to appellant, he and Holmes are both six feet-six inches tall, but Holmes weighs about 280 pounds and appellant weighs about 350 pounds. Appellant testified that he and Holmes were both in the motel room bathroom and the woman brought Michelle into the room for "business." When Michelle asked to use the bathroom and opened the door, appellant shocked Michelle when he "kind of sprung out on [Michelle]." Appellant left the room and went out to his truck, but Holmes stayed inside the bathroom. After a few minutes, Michelle came outside yelling that the woman had robbed him and demanding that she give him back his cell phone. The woman handed Michelle a cell phone, and appellant watched Michelle call "911." Holmes and the woman then got into appellant's truck, trying to leave. Appellant went back into the motel room to get his keys and wallet. When he came back out, everyone was gone. Appellant could hear police sirens, so he drove away from the scene. He was arrested two days later. Holmes was not arrested. During cross-examination, appellant testified he had prior felony convictions for robbery, evading arrest, theft, and possession of a controlled substance. Appellant also testified that his medical condition did not prevent him from committing the previous offenses. Discussion
Appellant contends the evidence is legally and factually insufficient because he was not physically capable of performing the offense, did not match the suspect's description, and could not run even a short distance. Appellant asserts there is no evidence he threatened or said anything to Michelle, and that Michelle had multiple felony convictions and was not credible. The State responds that the evidence is legally and factually sufficient to support appellant's robbery conviction. The evidence presented to the trial court shows that Michelle identified appellant as the man who robbed him. Taylor also identified appellant as the man who left the motel room, ran toward the highway, and returned running while being chased by Michelle. Although appellant testified he could not run even a short distance due to a blood clot condition in his leg, he admitted on cross-examination that his medical condition had not prevented him from committing the prior offenses. As the fact-finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The trial judge was free to accept or reject any and all of the evidence presented by either side. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Viewing all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support's appellant's conviction. See Roberts, 220 S.W.3d at 524; Vodochodsky, 158 S.W.3d at 509. We overrule appellant's two points of error. We affirm the trial court's judgment.