No. 05-09-00959-CR
Opinion Filed April 1, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 1 Dallas County, Texas, Trial Court Cause No. F08-61507-H.
Before Justices MORRIS, FRANCIS, and MURPHY. Opinion By Justice MURPHY.
MARY MURPHY, Justice.
A jury convicted Jason James Bailey of aggravated robbery and assessed punishment, enhanced by a prior conviction, at ninety-nine years' confinement and a $10,000 fine. The trial court also ordered appellant to pay $5000 in restitution. In two points of error, appellant challenges the sufficiency of the evidence to support his conviction and the amount of restitution ordered by the trial court. We affirm the trial court's judgment.
BACKGROUND
Around 11:30 p.m. on September 25, 2008, Ross Godwin and his two friends, Rachel Pleasant and Maurice Allen, went to an area in West Dallas to purchase marijuana. Godwin was driving a rented white Dodge Caliber; Allen was in the front passenger seat, and Pleasant was seated directly behind Godwin. Once they arrived in the area, Godwin dropped off Allen near some apartments on Chattanooga Place and then drove down the street and parked in front of the Rosemont Apartments, where he and Pleasant waited for Allen's return. As Godwin and Pleasant sat in the car, a man later identified as appellant approached and tapped on Godwin's window. After the man asked for money, Godwin collected some change and handed it to the man. The man stood there for a few minutes and then walked away. Godwin testified that although the area where they were parked was dimly lit, Godwin had a good view of the man and got a "pretty good look" at his face. Shortly thereafter, the same man returned, tapped on the window, and tried to start a conversation. Pleasant testified that while the man was talking to Godwin, she was sitting and "looking up at [the man]." She told Godwin "something didn't seem right," and she was "getting really extremely nervous." Godwin testified he was also "getting a little nervous" and decided to "ignore [the man] and roll up the windows and lock the doors." At that point, the man "raised his voice" and "started asking [Godwin] for money." Godwin testified the man then reached into his pocket, pulled out a revolver, and pointed it at Godwin through the window. The man demanded Godwin get out of the car. Godwin testified he "was starting to panic" and Pleasant was "really freaking out in the back." Godwin explained he "kind of put [his] hands up" and told the man he did not have any more money. Godwin testified the man persisted in demanding money and then moved to the front driver's side wheel and "fired the gun once over the hood of the car." The man moved back to Godwin's window, and Godwin "gave in" and opened the door. Once Godwin opened the door, the man immediately "pistol-whipped" Godwin twice on his left cheek. Not wanting to be hit again, Godwin got out of the car and stood facing the man about a foot away. Godwin testified the man was still shouting "give me your money" and had the gun "directly up against [Godwin's] forehead." The man continued to demand money, fired the gun at Godwin's feet, and put the gun back at Godwin's head. Pleasant got out of the car, stood behind the man, and begged him not to hurt Godwin. As the man turned to tell Pleasant to get back in the car, Godwin "nudged off" the man and tried to step backward "so that the gun wasn't directly up against [his] head." The man turned back to Godwin, and Pleasant ran toward Allen, who had just returned. Godwin testified that he shouted to Allen for help and was going to run to Allen, but the man "fired the weapon again and this time it struck [Godwin] in the forehead." Godwin "took off" and ran in the direction of Allen's and Pleasant's voices. As Pleasant called 911, Godwin heard a car door close and "saw [his] vehicle, a white Dodge Caliber leave in the opposite direction." Both Godwin and Pleasant testified they saw another man standing in the shadows at the back of Godwin's car during the encounter. Pleasant first noticed the other man when they drove into the parking lot; Godwin did not notice the other man until Pleasant got out of the car. Although they generally could describe the way the other man was dressed, neither Godwin nor Pleasant could see the other man's face. Godwin testified the other man was "just standing there" with his arms crossed. Pleasant testified the man did not move much from his position behind Godwin's car and "when the shooter [got] in the car," the "other guy disappear[ed] at the same time." She "assumed both of them got in the car together." A couple of days later, the Dallas police department received information about a possible homicide. Specifically, an anonymous caller informed the police of a car with a body inside submerged in water. After finding the car within five to ten miles from the location of the robbery and pulling it from the water, the police determined it was the car taken from Godwin. No body was found inside the car. Appellant became a suspect in the robbery based on information provided in the anonymous tip. The officers investigating the robbery found no physical evidence connecting appellant to the robbery or shooting. Detective Ed Lujan was assigned to investigate Godwin's case. Three days after the robbery, Lujan met with Godwin, had Godwin complete an affidavit, and showed Godwin a six-person photographic lineup, which included a photograph of appellant. Godwin testified he "looked at every picture carefully" and picked appellant's photograph from the lineup. Godwin also testified he was "100 percent" sure of his identification. That same day, Lujan met with Pleasant and showed her a six-person photographic lineup. From that lineup, Pleasant identified appellant as the "shooter from that night." Lujan testified that Godwin and Pleasant did not hesitate or show uncertainty in selecting appellant from the photographic lineup. At trial, both Godwin and Pleasant again identified appellant as the man who shot and robbed Godwin. Lujan testified to the procedures he followed in showing the lineup to Godwin and Pleasant. Lujan explained before he shows the lineup, he has the witness read a form, which states the person may or may not be in the lineup. He also tells the witness to let him know if he sees the person in the lineup, but "it's okay" if the witness does not see the person. The six photographs are presented to the witness all at one time. Lujan further testified that the Dallas police department changed the procedures for conducting photographic lineups on April 1, 2009, based on a study involving other ways to conduct photographic lineups. Lujan explained that under the "new way," the photographic lineup is shown by a person unrelated to the case and the photographs are shown one at a time. Lujan testified the procedures he followed when he showed the lineup to Godwin and Pleasant in September 2008 were valid. The jury also heard testimony from appellant's girlfriend, Sheena James. James testified appellant was a patient at the mental health and mental retardation center in Tarrant County where she worked. She further testified appellant lived with her in Fort Worth, but she could not "exactly say where [appellant] was at [the] time [of the robbery]." Appellant's mother testified appellant was staying with her in Dallas the week before his arrest. The jury found appellant guilty of aggravated robbery with a deadly weapon and sentenced him to ninety-nine years' confinement and assessed a $10,000 fine. After a brief hearing, the trial court also ordered appellant to pay $5000 in restitution to Godwin. SUFFICIENCY OF THE EVIDENCE
In his first point of error, appellant complains the evidence is factually insufficient to establish he committed the crime because (1) there was evidence of another person at the crime scene, (2) there was no physical or forensic evidence tying him to the robbery, and (3) Godwin's and Pleasant's identifications of him as the robber were not credible or reliable. Since appellant filed his brief, the Texas Court of Criminal Appeals limited our evidentiary review to the Jackson v. Virginia, 443 U.S. 307 (1979), legal-sufficiency standard. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's issue under that standard. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899-900. Because the fact finders are the sole judges of the witnesses' credibility and the weight to be given their testimony, we defer to those determinations. Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 900. A person commits the offense of robbery if, in the course of committing theft and with the intent to obtain and maintain control of property, that person "(1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Penal Code Ann. § 29.02 (West 2003). The offense becomes aggravated robbery if the person committing the robbery uses or exhibits a deadly weapon, id. § 29.03(a)(2), such as a firearm. Id. § 1.07(a)(17)(A) (West 2003). Evidence of "Two Possible Suspects"
Appellant first argues the evidence is insufficient to support his conviction because there were "two possible suspects." He contends, based on the presence of another person at the crime scene and other evidence such as the dimly-lit conditions, similar clothing, appellant's mental health and intelligence, and appellant's history of "waiting in the background during the commission of a crime" (referring to a previous conviction for a robbery appellant committed with a family member, which was described only in the punishment phase of the trial), it is more likely that appellant "was the second man at the scene as opposed to being the shooter." The identification of appellant by an eyewitness is sufficient to support appellant's conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); see also Johnson v. State, 176 S.W.3d 74, 77-78 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (holding evidence was sufficient to support conviction based on complainant's testimony and identification). Here, Godwin and Pleasant unequivocally identified appellant, not another man, in both a photographic lineup and in court, as the person who shot and robbed Godwin. Godwin testified he got a "pretty good look" at appellant when appellant came up to Godwin's car window and he stood facing appellant when appellant had a gun to his head. Similarly, Pleasant testified she was looking up at appellant when he was talking to Godwin at the car window. Although both testified there was another man present at the time, neither testified the other man came to the car. Rather, Godwin testified he only saw the other man standing in the shadows when Pleasant got out of the car; Pleasant testified the other man did not move much. Importantly, at no point did either Godwin or Pleasant testify they were uncertain as to which man committed the crime. Additionally, this evidence relating to the presence of another person at the crime scene, the light conditions, and the clothing worn by appellant and the other man was before the jury for its consideration. With regard to his "two possible suspects" argument, appellant also maintains his conviction cannot stand because the State "failed to charge Appellant with a parties charge"; yet both Godwin and Pleasant identified appellant, not the "second man," as the person who committed this offense. Thus, appellant was prosecuted for his own conduct, and a parties charge was not required. See Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996); McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974) ("[I]f the evidence of the conduct of the defendant then on trial would be sufficient, in and of itself, to sustain the conviction, no submission of the law of [parties] is required."). Physical or Forensic Evidence
Appellant next argues there is a "complete lack" of physical or forensic evidence, such as casings, bullets, and blood, connecting appellant to the crime scene or to any weapon used during the robbery. He claims the lack of physical evidence, combined with testimony that he had been living in Fort Worth at the time, leads to the conclusion he was never at the scene of the crime. The lack of physical or forensic evidence, however, does not render the evidence supporting appellant's conviction insufficient. See Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd). Rather, the lack of physical or forensic evidence is simply a factor for the jury to consider in weighing the evidence. See 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). Here, the jury heard evidence that the gun used in the robbery was a revolver and the casings would likely still be inside the revolver. In addition, although appellant's girlfriend testified he was living with her in Fort Worth, she admitted she was not sure where appellant was at the time of the robbery; appellant's mother testified he was living with her in Dallas around the time of the robbery. Given the total circumstances, including Godwin's and Pleasant's identifications of appellant as the robber and the anonymous tip revealing the location of Godwin's car and implicating appellant in the crime, a rational jury could have found appellant guilty of the offense without any physical or forensic evidence. Eyewitness Identifications
Finally, appellant contends the evidence is insufficient because of the unreliable and flawed eyewitness identifications made by Godwin and Pleasant. First, appellant argues the identifications were "not based on a fair and unbiased procedure for picking a suspect out of a lineup" and the photographic lineup administered by Lujan was "impermissibly suggestive." Yet nothing in the record shows the photographic lineups administered by Lujan were suggestive or "induced an irreparable misidentification." Godwin testified to getting a "pretty good look" at appellant's face during the commission of the crime, and Pleasant testified she looked up at appellant while appellant was talking to Godwin. Both Godwin and Pleasant were certain of their identification of appellant as the person who committed the crime. Further, although Lujan testified the Dallas police department changed procedures for conducting photographic lineups, he also testified the procedures used by the department before that time were valid. Appellant also challenges the reliability of the identifications, asserting Godwin and Pleasant were drug users whose descriptions of appellant's clothing and height differed. Appellant emphasizes that neither Godwin nor Pleasant mentioned the presence of tattoos on appellant, who has tattoos on his arms and neck. It was the jury's role to reconcile conflicts, contradictions, and inconsistencies in the evidence, and to judge the credibility of witnesses. See Brooks, 323 S.W.3d at 900; Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008). We afford almost complete deference to these determinations. See Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008). The inconsistencies in the descriptions of appellant as well as Godwin's and Pleasant's histories of drug use were before the jury, and the jury was entitled to resolve evidentiary weight issues and credibility determinations in the State's favor and to reject appellant's evidence. See Hester v. State, 909 S.W.2d 174, 178 (Tex. App.-Dallas 1995, no pet.) (discrepancies in height given for perpetrator merely a factor for jury to consider in assessing weight of testimony). After reviewing the evidence under the appropriate standard of review, we conclude the evidence is sufficient to support appellant's conviction. See Jackson, 443 U.S. at 319; see also Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1983) (op. on reh'g) (evidence sufficient to support conviction despite inconsistencies between description of robber given by victim to police at time of robbery and description of robber given by victim at trial). We overrule appellant's first point of error. RESTITUTION
In his second point of error, appellant contends the trial court erred in ordering appellant to pay $5000 in restitution because such amount is speculative and has no factual basis in the record. We review restitution orders for an abuse of discretion. See Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). In addition to any fine authorized by law, the sentencing court may order the defendant to make restitution to any victim of the offense. Tex. Code Crim. Proc. Ann. art. 42.037(a) (West Supp. 2009). The State bears the burden of proving, by a preponderance of the evidence, "the amount of the loss sustained by a victim as a result of the offense." Id. art. 42.037(k). The court resolves any dispute relating to the proper amount or type of restitution. Id. The amount of restitution, however, must be just and have "a factual basis within the loss of the victim." Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999) (citing Cartwright, 605 S.W.2d at 289). Because due process concerns are implicated, this means "there must be evidence in the record to show that the amount set by the court has a factual basis." Cartwright, 605 S.W.2d at 289. A trial court abuses its discretion when it sets restitution in an amount that is unjust or unsupported by facts. Campbell, 5 S.W.3d at 696. During the punishment phase of the case, Godwin's mother, Beverly Godwin, testified her son's health insurance had "been used up" by Parkland Memorial Hospital, the hospital that treated Godwin the night he was shot. She explained, the health insurance "only went up to $10,000 and [Parkland] had run it out." She added, "the hospital immediately started calling about the bills." She also testified Lujan told them about the Victims of Crime Fund, to which Godwin applied. In addition to the medical services provided by Parkland, Godwin also had two surgeries performed by a retina specialist at Johns Hopkins in Baltimore, Maryland. At the hearing on restitution, Beverly testified, without objection, they incurred monetary expenses of about $5000 as a result of the offense. She testified the amount was "an estimate based on not knowing what the Victims of Crime [Fund] will cover and not cover and things that we know they don't cover." Appellant did not cross-examine Beverly to obtain a more detailed breakdown of the losses or challenge the accuracy of her testimony. Nor did appellant provide any evidence controverting her testimony. Testimony from a witness like Beverly, the victim's mother with personal knowledge of the amount of expenses incurred, is adequate to support a restitution order. See Davis v. State, 757 S.W.2d 386, 389 (Tex. App.-Dallas 1988, no pet.). Thus, we conclude the trial court did not abuse its discretion by ordering appellant to pay $5000 in restitution. We overrule appellant's second point of error. CONCLUSION
Having resolved appellant's two points of error against him, we affirm the trial court's judgment.