Opinion
No. 2-06-199-CR
Delivered: August 16, 2007. DO NOT PUBLISH TEX. R. APP. P. 47.2(b).
Appeal from the 213th District Court of Tarrant County.
PANEL F: MCCOY, DAUPHINOT, and HOLMAN, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
I. Introduction
In two points, Appellant Aundre Ross Williams a/k/a Aundre Williams appeals his conviction of aggravated robbery with a deadly weapon, to wit: a firearm. We affirm.II. Factual and Procedural Background
This is the case of Cinderella's slipper.A. The Robbery
On December 30, 2004, Abbas Habib, the owner of Mr. A Beer Beverage and Sandwiches ("Mr. A's") in Arlington, Texas, left his store in the care of an employee and drove to the bank to withdraw a considerable sum of money. Shortly before 4:00 p.m., Habib returned to the store and parked his car in its usual spot. As he exited his car, another vehicle pulled up beside him and an African-American man got out on the passenger's side. The man pointed a gun at Habib and demanded that he hand over the money bag. Habib refused and a struggle over the money bag ensued. The man struck Habib over the head with the butt of the gun ten to fifteen times until Habib relinquished control over the money. Before jumping back into the getaway car, the man fired a single shot into a nearby car to scare approaching bystanders. After beating Habib and leaving him bleeding in the parking lot, the man attempted to make a clean getaway from Mr. A's. However, his shoe got caught on the tire of Habib's car and it slipped off his foot. Like Cinderella, the man failed to stop for the shoe, jumped in the getaway car, and fled the scene. He also dropped a nearly empty Newport cigarette pack.B. The Witnesses
Eyewitness Ramon Garay had been stopped in traffic on Abram Street in front of Mr. A's and had seen the attack on Habib from a distance of twenty to thirty feet. Garay testified that he had a clear line of sight to the man with the gun and the car that he got into. Garay followed the getaway car as it sped out of the parking lot. Garay testified that after the car turned on Gay Street, Williams jumped out of the car and ran off in the direction of the railroad tracks. He further testified that the driver of the car abandoned the vehicle a few blocks later and fled on foot before being picked up by a dark-colored minivan. Garay flagged down Arlington Police Department Detective Bill Pino, a patrol officer at the time, and led him to the abandoned car before returning to Mr. A's. Garay identified Williams in a photo line-up and in open court as the man he saw attack Habib with a gun and jump into the getaway car. Meanwhile, back at Mr. A's, Arlington patrol officers Jeff Pue and Jennifer Moffit, and crime scene investigator Ignacio Acosta, were processing the scene and speaking to eyewitnesses about the attack on Habib. Officer Pue arrived first and spoke with Habib and his employee, Mahendro Cheta. Officer Pue also photographed and marked with cones the shoe and cigarette pack left by the assailant. Officer Moffit maintained the crime scene log, detailing who entered and left the scene, and spoke to three additional eyewitnesses of the attack' David DeRocha, Jean Givens, and Jake Driver. C. The Investigation Investigator Acosta arrived on the scene to collect and seal the shoe and cigarette pack left by the assailant during his hasty departure from Mr. A's. Acosta sent the shoe to the Tarrant County Medical Examiner's Office for testing. He also collected money found near the abandoned car. No usable fingerprints were found on the money or the car. However, using black magnetic powder, two usable latent prints were lifted off the cigarette pack. Comparing the prints lifted from the cigarette pack with those of Williams, Acosta testified that based on his analysis Williams was the source of the latent prints. Detective Brian Johnson was in the "crimes against persons" unit of the Arlington Police Department at the time of the attack on Habib. It was Detective Johnson's job to work leads from his investigation of this and similar offenses and develop a suspect. Detective Johnson spoke to eyewitnesses of the attack, including Douglas Burnett. Burnett identified Williams in open court as the man who jumped from the car, though he admitted he told the police during their investigation that he couldn't pick the man out of a line-up. Detective Johnson also created the initial photo line-up of suspects, which included the photograph of a man suspected of committing offenses similar to the attack on Habib. He showed the line-up to Habib and a half-dozen eyewitnesses of the attack. No positive identification was made by any of the witnesses, including Habib. After further investigation of the DNA found inside the shoe and the fingerprints on the cigarette pack, Detective Johnson finally had a substantial lead on the man who attacked Habib. Unlike the search for Cinderella, investigators were able to identify the wearer of the lost shoe by taking a DNA swab from the shoe and running it through the Combined Offender Data Information System (CODIS) database. The DNA in the shoe was a match to Williams. Three to four months after the attack, Detective Johnson created a second line-up containing Williams's photograph among the suspects. Garay picked Williams out of the second line-up as the assailant. Habib could not make a positive identification of the assailant, but testified in court that he could only say that Williams "looks very similar." Detective Johnson could not locate any of the other witnesses by the time he had created the second line-up. Detective John Bell took over the investigation from Detective Johnson after Johnson was promoted. Detective Bell checked with Harris County and the Texas Department of Corrections to confirm that Williams had not been in custody at the time of the offense. He then prepared a search warrant for Williams's saliva based the DNA profile match from CODIS. After a magistrate issued the warrant, he went to the Green Bay detention facility in Tarrant County and took four buccal swabs from Williams's mouth. Each sample was sealed in sanitary packaging and marked with evidence tape. Detective Bell took the swabs to the Medical Examiner's office for testing and comparison. Once again, Patton generated a DNA profile, this time from Williams's buccal swabs. Patton's analysis provided a match between the DNA from the shoe and the samples taken from Williams. She testified that her statistical analysis indicated that the DNA profile would not be repeated in a population many times more than the Earth's population. In short, she concluded that the DNA from the shoe could have only come from Williams or an identical twin.D. The Trial
At the close of the State's case, Williams moved for a directed verdict. The court denied his motion, and the defense proceeded with its case by calling one witness before resting. Williams's step-father and pastor, Robinson Tracy Burleson, testified that Williams often donated shoes to their church in Houston to be sold at its regular garage sales. He testified that it was possible that the black Reebok found at Mr. A's in Arlington was one of the shoes Williams had donated in Houston. Burleson also testified from his own personal knowledge that Williams had been working at the church in Houston on December 30, 2004, from 10:00 a.m. to 6:00 p.m., and on December 31, 2004, from 10:00 a.m. to 3:00 p.m. He testified that he had provided proof of Williams's employment to his parole officer, but nothing was provided to officers or detectives in Arlington or to prosecutors in Tarrant County. After hearing arguments and evidence from both the State and Williams, the jury found Williams guilty of one count of aggravated robbery with a deadly weapon, as charged in the indictment. Following the jury's guilty verdict, Williams entered a plea of "not true" as to the repeat-offender allegation. At the punishment hearing, the State presented evidence to substantiate the repeat-offender notice of the indictment. The jury subsequently found the allegation of prior convictions true, and assessed Williams's punishment at thirty-eight years' confinement. This appeal followed.III. Sufficiency of the Evidence
In his first point, Williams contends that the evidence presented by the State was factually insufficient to prove the identity of Williams as the actor in the charged offense. We disagree.A. Standard of Review
When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder's determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact-finder's determination is manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, though legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417. In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court "harbor a subjective level of reasonable doubt to overturn [the] conviction." Id. We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the fact-finder's. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury's determination of the weight to be given contradictory testimonial evidence because resolution of the conflict "often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered." Johnson, 23 S.W.3d at 8. Thus, we must give due deference to the fact-finder's determinations, "particularly those determinations concerning the weight and credibility of the evidence." Id. at 9. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).B. Application
As detailed above, the State presented a substantial amount of evidence against Williams at trial. The State presented evidence that Williams's fingerprints matched those found on the cigarette pack dropped at the scene and that his DNA matched that lifted from a shoe that witnesses testified came off his foot while he was trying to flee. The State further offered the testimony of eyewitnesses, who identified Williams both in and out of court as the assailant in the attack on Habib outside Mr. A's. Williams proffered an alternative theory as to how his DNA may have ended up on the evidence collected from Mr. A's after the attack on Habib. Specifically, Williams's pastor and step-father testified that Williams often donated his shoes to their church in Houston to be sold at its garage sales. Accordingly, he testified that a pair of Williams's donated shoes from Houston could have been worn by someone else in commission of the offense against Habib which happened in Arlington. Williams's step-father presented an alibi for Williams on the day of the offense, stating that Williams was working at the church in Houston. However, the jury agreed with the State. We may not simply substitute our judgment for the jury's. Johnson, 23 S.W.3d at 12; Cain, 958 S.W.2d at 407. Under these facts, the record does not clearly reveal that a different result is appropriate; therefore, we must defer to the jury's determination of the weight to be given contradictory testimonial evidence. Johnson, 23 S.W.3d at 8. Resolution of the conflict "often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered." Id. Therefore, we hold that the evidence supporting Williams's conviction was not so weak that the jury's determination was clearly wrong or manifestly unjust. Furthermore, we hold that the conflicting evidence did not so greatly outweigh the evidence supporting Williams's conviction that the jury's determination was manifestly unjust. See Watson, 204 S.W.3d at 416-17; Johnson, 23 S.W.3d at 11. Accordingly, we hold the evidence factually sufficient to prove the identity of Williams as the actor in the charged offense of aggravated robbery with a deadly weapon. We overrule Williams's first point.IV. Admission of Prior Convictions
In his second point, Williams contends that the trial court erred by allowing the admission of judgments of prior convictions at the punishment phase. In sum, Williams argues that the State did not present independent evidence that he was the person named in the prior judgments. We disagree.A. Standard of Review
An appellate court reviews the admission of evidence for an abuse of discretion. See Griffin v. State, 181 S.W.3d 818, 820 (Tex.App.-Houston [14th Dist.] 2005, pet. ref(d). So long as the trial court's decision was within the zone of reasonable disagreement, the appellate court will not disturb it on appeal. See id. B. Applicable Law During the punishment phase of a criminal trial, the court may admit evidence of prior criminal convictions. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(l) (Vernon 2006). The State may introduce authenticated copies of state prison records and certified copies of a judgment and sentence to show that a defendant committed another crime. See TEX. R. EVID. 901(b)(7); Beck v. State, 719 S.W.2d 205, 210 (Tex.Crim.App. 1986). However, these documents alone are not sufficient to prove a prior conviction. See Beck, 719 S.W.2d at 210. The State must present independent evidence that the defendant is the person named in the prior conviction. Id.; Howard v. State, 896 S.W.2d 401, 405 (Tex.App.-Amarillo 1995, pet. ref(d); Rosales v. State, 867 S.W.2d 70, 72-73 (Tex.App.-El Paso 1993, no pet.). The Texas Court of Criminal Appeals recently reaffirmed that there are a number of ways for the State to prove a prior conviction.To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction. No specific document or mode of proof is required to prove these two elements. There is no "best evidence" rule in Texas that requires that the fact of a prior conviction be proven with any document, much less any specific document. While evidence of a certified copy of a final judgment and sentence may be a preferred and convenient means, the State may prove both of these elements in a number of different ways, including:
(1) the defendant's admission or stipulation,
(2) testimony by a person who was present when the person was convicted of the specified crime and can identify the defendant as that person, or
(3) documentary proof `such as a judgment) that contains sufficient information to establish both the existence of a prior conviction and the defendant's identity as the person convicted.
Just as there is more than one way to skin a cat, there is more than one way to prove a prior conviction.Flowers v. State, 220 S.W.3d 919, 921-22 (Tex.Crim.App. 2007) (citations omitted). Moreover, the court of criminal appeals has also stated that one manner of proving a prior conviction is through "introduction of certified copies of the judgment and sentence and record of the [Texas Department of Corrections] or a county jail, including fingerprints of the [accused], supported by expert testimony identifying them as identical with known prints of the defendant." Littles v. State, 726 S.W.2d 26, 28 (Tex.Crim.App. 1984).