Opinion
Nos. 05-04-00925-CR, 05-04-00926-CR, 05-04-00927-CR
Opinion issued October 19, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th District Court, Collin County, Texas, Trial Court Cause Nos. 380-81373-02; 380-81374-02; 380-81375-02. Affirmed.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
OPINION
Brad Michael Childers appeals his three aggravated robbery convictions. A jury convicted appellant, and the trial court sentenced appellant to fifty years' confinement in each case. In two issues, appellant argues the evidence is factually insufficient to support his convictions, and the trial court erred in denying his motion for mistrial after the prosecutor's comment on his failure to testify. We affirm the trial court's judgments. On June 3, 2002, at approximately 1:00 p.m., Mohammad Jamal was working alone in his ice cream store in Plano when appellant entered the store. After asking about the prices of various products for a "long time," appellant ordered an ice cream cone. While Jamal was ringing up the purchase at the cash register, appellant came behind the counter and pulled out a gun. Appellant conveyed to Jamal that he wanted Jamal to open the register. Appellant took approximately $100 from the register. Another customer entered the store, and appellant demanded a bag from Jamal, put the money in the bag, and left the store. The customer appeared to realize something was "funny," and she also left the store. Jamal locked himself in his office and called 911. Jamal later identified appellant from a photographic lineup. At trial two years later, Jamal testified appellant was "very close" to the person who robbed him. At approximately 1:19 p.m. on June 3, 2002, appellant entered Parkland Cleaners, located three or four minutes by car from Jamal's store. Tara Ricklifs was working at the cleaners when appellant walked in and asked if she had a job for him. Ricklifs handed appellant a piece of paper and a pen, and appellant lifted his shirt, pulled out a black gun, and said it was a robbery. Appellant told Ricklifs to stay where she was and open the cash register. Ricklifs opened the cash register, and appellant began "screaming and yelling for a bag." Appellant grabbed a bag and took approximately $360 from the cash register. A customer came in, and appellant ran out the front door. The customer went back outside and watched appellant run away before calling police. Police arrived on the scene and took Ricklifs' statement. The next day, detectives came to the store and showed Ricklifs a photographic lineup. Ricklifs identified appellant as the man who robbed her both in the photographic lineup and at trial two years later. At approximately 2:00 p.m. on June 3, 2002, Sheela Singh was working in her General Nutrition Center store when appellant entered the store and began looking at some products. Singh approached appellant, who said "This is a hold up" and showed her a black gun. Appellant demanded money, and Singh unlocked the cash register and told appellant to take the money. Appellant took "one or two" hundred-dollar bills, Singh's phone, and two bottles of nutritional supplements before leaving the store. Singh called police from a phone in the back of the store. Subsequently, Singh identified appellant's photograph in a photographic lineup. At trial two years later, Singh again identified appellant as the man who robbed her. A jury convicted appellant of aggravated robbery in each case, and this appeal followed. In his first issue, appellant argues the evidence is factually insufficient to support his aggravated robbery convictions. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). Here, the record shows all three robbery victims saw appellant during the robberies and identified him from a photographic lineup shortly after the robberies. At trial two years later, Jamal testified appellant was "very close" to the person who robbed him, but Ricklifs and Singh testified they had no doubt appellant was the man who robbed them. The witnesses' description of appellant's clothing and facial hair varied slightly. In addition, appellant presented his father's testimony that, several days before the robberies, appellant had bleached white hair with dark roots approximately an inch to two inches long and a severe case of acne on his face. However, the fact that the record contains some inconsistencies in the descriptions given of appellant does not render the evidence insufficient to support a conviction. Cooks v. State, 844 S.W.2d 697, 708 (Tex.Crim.App. 1992). Reconciliation of conflicts and inconsistent evidence are matters for consideration by the members of the jury. Id. We conclude the evidence is sufficient to support the jury's conviction of appellant. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. We overrule appellant's first issue. In his second issue, appellant argues the trial court erred in denying his motion for mistrial when the prosecutor commented on appellant's failure to testify. A mistrial is required only when improper evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). The trial court's instruction to disregard is presumed efficacious unless consideration of the facts of the particular case suggests the impossibility of withdrawing the impression produced on the minds of the jury. Waldo v. State, 746 S.W.2d 750, 754 (Tex.Crim.App. 1988). Here, appellant complains of the prosecutor's statement during closing argument that "if [appellant] didn't do it, okay, if he was working, show us his work records. If he was out at a restaurant with somebody. . . ." Appellant objected, and the trial court sustained the objection and instructed the jury to disregard. Even assuming the prosecutor's argument amounted to an improper comment on appellant's post-arrest silence, the error, if any, was cured by the trial court's instruction to disregard. See Waldo, 746 S.W.2d at 754. After reviewing the record, we cannot conclude the prosecutor's concerning whether appellant could produce work records or evidence that he was "out at a restaurant with somebody" was so emotionally inflammatory that a mistrial was warranted. We overrule appellant's second issue. We affirm the trial court's judgments.