Opinion
No. 05-03-01631-CR
Opinion Issued August 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F03-53462-TI. Affirm.
OPINION
The trial court convicted Christopher Anderson of robbery and assessed a five-year sentence. In three issues, appellant complains the evidence is legally and factually insufficient to support his conviction and the judgment incorrectly reflects an "Open" plea agreement. We modify the judgment to delete "Open" regarding "Terms of Plea Bargain" and affirm the trial court's judgment as modified. BACKGROUND On July 12, 2003, sometime between 2:00 a.m. and 4:00 a.m., the complainant was waiting in his car at 7030 Fair Oaks for his wife to return from a friend's apartment. Two men assaulted the complainant and his wife and took his wallet and money, his wife's purse, and their automobile. The complainant identified appellant as one of the two men. He recognized appellant as the man from whom he had bought crack cocaine earlier that same evening. WAS THE EVIDENCE LEGALLY AND FACTUALLY SUFFICIENT? In his first two issues, appellant complains the evidence was factually and legally insufficient because no physical evidence connects appellant to the robbery. Specifically, he argues he was not identified as the person who was found driving the complainant's stolen car. Additionally, appellant points to the lack of any marks on his hands to indicate he had been in a fight, poor lighting in the area, and security guard Nicholas Marquez's unfamiliarity with appellant. 1. The Evidence a. The Complainant The complainant testified that he and his wife went to an apartment complex in the early morning hours to buy cocaine. Earlier, appellant had sold the complainant a "$20 piece of cocaine." Although the complainant did not know appellant's name, he referred to him by his street name, Alcoa. The complainant's wife did not approve of the amount of cocaine Alcoa had sold her husband While the complainant waited in their car, his wife went to a friend's apartment to obtain more cocaine. As he was waiting, an unknown man approached the car, got in the passenger side, and asked for a ride. The complainant told the man that he could not give him a ride because their car had only two seats. By that time, the complainant's wife returned and could not get in the car. During the ensuing argument, appellant approached the driver's side window and "all hell broke loose." Appellant began hitting the complainant in the face through the open window. He heard appellant tell the other man, "I seen $100. I seen $100." The complainant realized appellant had seen his money when he bought the cocaine from appellant. The man in the passenger seat hit the complainant once or twice then got out of the car. The complainant crawled across the passenger seat and got out of the car, falling down because he was "really beat pretty bad." Appellant "went in [the complainant's] pocket" and took his billfold and his money-approximately $160. When the complainant managed to get to his feet, he called "911" from a telephone at a nearby laundry facility. While he was on the telephone, his car was taken. He did not know who took his car, but he knew appellant took his money. The complainant suffered a "busted eyelash," which caused his eye to stay closed for four or five days, and a black eye. An ambulance and the police arrived at the scene. The complainant described the men who had attacked him. He also identified the man who took his wallet as wearing a green silk tank top and beige "cut" pants or shorts. Around noon, the complainant and his daughter returned to the apartment complex to verify the apartment complex's address for the police. He parked at the laundry facility and waited, looking for appellant and the other man because he knew they usually sold drugs in that area. The complainant called the police when he saw appellant. The police told him to stay there. When the police arrived, the complainant directed them to a specific apartment. The complainant had viewed a video tape before testifying. He identified the car in the tape as his car, a black Datsun, and the man getting out of his car as the man who had been in his passenger seat the night of the robbery. The complainant described himself as a casual drug user although he had not taken drugs the evening of the robbery. He thought appellant lived at the apartment complex because appellant was there "24/7," and it would surprise him to know that appellant actually did not live at the complex. b. The Complainant's Wife The complainant's wife testified that she was with her husband the night of the robbery. They had gone to an apartment complex to buy drugs, and she had gone into an apartment. When she returned to the car, appellant-whom she identified in court and referred to as "Alcoa" — and another man were at the car with her husband The men wanted a ride, but she told them they could not have a ride because she and her husband were on their way out of town. Although both men began "scratching [the complainant] and hitting him and kicking him," appellant did the "worst damage." When the complainant went to call 911, she tried to retrieve the car keys from the ignition. The "young man" took the keys, refused to give them to her, and hit her lip. She ran to the telephone her husband was using and did not see which way the young man went. When they returned from using the telephone, their car was gone. She did not see who drove the car away. On cross-examination, she testified she had not taken any drugs that evening and did not use drugs regularly. Before the robbery, she too had seen appellant around the apartment complex. c. Brad Williams Williams, a Dallas Police Officer, responded to the initial call at the apartment complex around 4:00 or 4:30 a.m. The complainant had a swollen and bleeding eye and was bleeding "out of both of his lips." Williams obtained a description of the suspects and the missing car. He could not recall the description the complainant and his wife gave him. Williams believed the wife was intoxicated but was unable to determine if the complainant was intoxicated. When asked if it was possible that the complainant was intoxicated, he agreed it was possible. d. Vincent T. McDaniel McDaniel, a Dallas Police Officer, responded to the complainant's telephone call the day after the robbery. After meeting with the complainant, McDaniel went to a specific apartment. The person who opened the door told McDaniel that only he and his wife were in the apartment. However, from the open door, McDaniel saw another man, appellant, who fit the complainant's description of his attacker. When asked for identification, appellant gave his name as Maurice Jackson and date of birth as March 3, 1977. McDaniel separated appellant from the others in the apartment and asked him if he knew what was going on. Appellant said "no. But I know I didn't do s____." When McDaniel told appellant about the complainant's accusation, appellant admitted he was there but "never laid a hand on [the complainant]." McDaniel called the complainant to the apartment, and he identified appellant as the man who robbed him. McDaniel arrested appellant but found nothing on him associated with the robbery. Appellant remained cooperative, and McDaniel saw nothing on appellant's hands to indicate he had been in an altercation. When McDaniel took appellant in to be fingerprinted, he admitted his true name, Christopher Latroy Anderson, born October 28, 1977. e. Nicholas Marquez Marquez, a security guard for several apartment complexes in the area, was familiar with those who normally belong at the complex. He did not, however, recognize appellant. He also said that he would know someone who was at the complex "24/7" if he had made contact with the person. The security officers look for people out "after curfew" to determine if they belonged there or were visiting. He patrolled the area three times within an eight-hour period and he had worked with the security company for eight months. On July 12, 2003, about 4:00 a.m., he was patrolling the apartment complex located at 7222 Fair Oaks when he saw a black Datsun "driving around with no headlights on." Marquez followed the car until it parked. He then turned his spotlight on the car. The driver got out and approached Marquez. He asked the driver what he was doing, and the driver told Marquez that he lived in the neighboring complex. When Marquez asked the driver "whose car it was," the driver "ran off." Marquez called the police department to see if the vehicle had been reported stolen. It had not, but when Marquez called again the next day, someone had reported the car as stolen. The video played in court of the exchange between Marquez and the driver was captured on Marquez's in-car video camera. Marquez described the driver as wearing a black shirt and black shorts. Marquez did not identify appellant as the man he encountered driving the black Datsun. The apartment area had a high activity for prostitution and drugs. Marquez was familiar with 7030 Fair Oaks's parking lot. The lighting in the front parking lot would go off periodically which made it "very difficult" to see at night. f. Tim Stewart Stewart, a Dallas Police Department Detective in the Crimes Against Persons division, became involved in the case the day after the robbery. Stewart said he recovered fingerprints from the exterior of the complainant's car, but they were not associated with appellant. Appellant's book-in photograph showed the clothing that appellant was wearing when arrested. Appellant was wearing "like a green silk tank top" in the photo. Stewart, who had also viewed the video taken from Marquez's car, said the person in the tape looked like appellant "or like his twin." g. Appellant Appellant testified that he was at a friend's house the entire evening of July 12, 2003. On the morning of July 12, he went to an apartment on Fair Oaks to look for his girlfriend. She was not there, so appellant waited at the apartment. A short time later, the police arrived, asked him about the robbery, and handcuffed him. When the police asked complainant if appellant was "the one," the complainant answered, "[H]e was like, I really can't tell. And he was like, yeah, that's him. And that was it." Appellant said he was not familiar with the apartments at 7030 Fair Oaks, but he knew he could find his girlfriend there. He had been there only once before because he was "not very fond of going to people's houses." Appellant denied ever seeing complainant or his wife and did not rob them. He also denied selling drugs. When initially asked if he was employed at the time of the robbery, appellant said yes. With further questioning, appellant said he was not employed and was applying for disability for asthma. Appellant stated he had not lied about his name to McDaniel. The name appellant used in Mississippi was the name he gave McDaniel. After further questioning, appellant then said he had lied about his name and his date of birth. He admitted he had also gone by the name of Alonzo Gibson. Appellant denied he told McDaniel that he had been present, but did not rob the complainant. Appellant agreed that if McDaniel said that happened, "he'd be lying about that one thing" although McDaniel had been truthful about all else. Appellant admitted to having been convicted of possession of a controlled substance as well as receiving stolen property. 2. Standard of Review a. Legal Sufficiency In evaluating the legal sufficiency of the evidence, we view all 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. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The factfinder is the exclusive judge of the witnesses' credibility and of their testimony's weight, and it is within the factfinder's exclusive province to resolve any evidentiary conflicts. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim. App. 2000). A claim of legal insufficiency is, in effect, an argument that the case should never have even been presented. Id. b. Factual Insufficiency In reviewing the factual sufficiency of evidence to support a verdict, we must answer one question-"[c]onsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt." Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting this review, we must not "substantially intrude upon" the factfinder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the jury's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). 3. Applicable Law A person commits robbery if, in the course of committing theft, and with intent to obtain or maintain control of property, he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. § 29.02 (a)(1) (Vernon 2003). 4. Application of Law to Facts Both the complainant and his wife identified appellant as one of the men who robbed them. Although the security guard thought the lighting in the front parking lot at 7030 Fair Oaks made it difficult to see at night, the complainant said the lighting conditions were "medium" and there was "no chance" he was mistaken in his identifying appellant. The complainant knew appellant from having purchased cocaine from him shortly before the robbery and on other occasions. The complainant's wife also had seen appellant before the robbery and identified appellant as the man she saw hitting her husband through the window. Although appellant had none of the complainant's property on him when arrested, he was arrested more than eight hours after the robbery. No one identified appellant as being in the stolen car after the robbery, but neither the complainant nor his wife knew which man took the complainant's car. Marquez stated he would be familiar with a person only if he had previously needed to make contact with him. Appellant admitted to using one name in Mississippi and another in Texas. The complainant and his wife knew him by the street name of Alcoa. Appellant also admitted he lied about his name, his employment status, and his date of birth. Viewing the evidence in the light most favorable to the verdict, we conclude any factfinder could have found the essential elements of the offense beyond a reasonable doubt. The trial court was the exclusive judge of the witnesses' credibility and it was within the court's exclusive province to resolve any evidentiary conflicts. We resolve appellant's first issue against him. Under the Zuniga standard, after reviewing and weighing the evidence supporting the judgment and the evidence contrary to the judgment, we cannot conclude that the contrary proof is so strong that the State did not meet the beyond-a-reasonable doubt standard. Nor can we conclude that the contrary proof outweighed the proof of guilt. The evidence was factually sufficient. We resolve appellant's second issue against him. JUDGMENT In his third issue, appellant claims the judgment erroneously reflects a plea bargain agreement. This Court may correct and reform an error in the judgment when the record before us includes the necessary data and information to do so. Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); McCoy v. State, 81 S.W.3d 917, 920 (Tex. App.-Dallas 2002, pet. ref'd). Here, appellant entered a plea of "not guilty." The record contains no evidence of a plea bargain agreement. The judgment, however, indicates the plea was "Open." We, therefore, conclude the judgment is in error. We resolve appellant's third issue in his favor. We modify the judgment to delete "Open" in reference to the plea bargain section and instead substitute the word "None." As modified, we affirm the trial court's judgment.
7030 Fair Oaks was "one complex over."