Opinion
No. 05-06-00715-CR
Opinion Filed February 26, 2007. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 282nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F06-00173-WS.
Before Justices MORRIS, LANG, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted Torrance Renard Flemings of aggravated robbery with a deadly weapon. Appellant pleaded true to two prior felony convictions. The jury assessed punishment at 70 years' confinement. In two issues, appellant argues the evidence is factually insufficient to support the verdict, and asks that we modify the Zuniga standard of review for factual insufficiency claims. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4.We affirm. In his first issue, appellant contends the State's case turned on the identification by Betty Tippit, the victim, and argues there was enough contrary evidence that the State could not have met its beyond-a-reasonable-doubt burden of proof. In reviewing a challenge to the factual sufficiency of the evidence, we will reverse only if the verdict is clearly wrong or manifestly unjust. See Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). In doing so, we consider all of the evidence. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). We afford due deference to the jury's determinations of credibility and weight of the evidence and may substitute our judgment for the jury's only if we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. (citing Watson, 204 S.W.3d at 414, 417). A person commits aggravated robbery, as in this case, if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and uses a deadly weapon. Tex. Pen. Code Ann. §§ 29.02(a)(2), .03(a)(2) (Vernon 2003). A firearm is a deadly weapon. Tex. Pen. Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2006). Tippit testified that she had been parking cars for patrons attending the State Fair of Texas when she saw appellant come onto the lot around 9:30 p.m. and walk past her twice. She thought he was waiting for someone who had parked a car in her lot. But then appellant approached her and ordered her to give him her money. When she told him she did not have any money, appellant cursed at her and displayed a gun he had tucked into his waistband. He ordered her to come over to him where it was dark. Tippit feared that if she did, he would kill her. Tippit gave appellant $16 and a very small roll of toilet paper, both of which she had in her pocket, and her cell phone. Appellant ran up the street, and Tippit followed him in her car. She drove on a parallel street and watched him as he crossed each intersection. When she caught up with him, she saw his face, but she did not think he saw her. She saw police officers in the parking lot of a dry cleaners and told them she had just been robbed. She described the robber as a dark-complected black male, not too tall, slim with "little muscles," and wearing a white tank top and blue jeans. She said he had short-cut hair and beady eyes and reminded her of a Jamaican. The police took Tippit with them and drove around looking for a suspect. They located someone who loosely fit the description, but Tippit said it was not him because he was too old and he had a "stomach." Then the officers got a call that other officers had detained a suspect at an apartment complex about six blocks from the robbery scene. They drove Tippit over there and, when she saw appellant, she immediately identified him as the person who robbed her. She said, "I never will forget him. That's him." She told the jury that appellant is the man who robbed her "[w]ithout a doubt. I'll never forget him." Appellant was wearing a white tank top and blue jeans and had a roll of toilet paper in his back pocket that Tippit identified as hers. Appellant also had $51 in his possession, but he did not have a gun or a cell phone. The officer who drove Tippit to the scene testified that Tippit was both scared and excited when she saw appellant, immediately identified him as the person who robbed her at gunpoint, and did not want to be anywhere near him. The officer testified they located appellant less than thirty minutes after Tippet reported the crime. Appellant's book-in photo stated he is five feet ten inches tall and weighs 165 pounds. It shows he is wearing a white tank top. Appellant called five witnesses to testify on his behalf. Four of the five witnesses testified they were with appellant and a group of friends and neighbors sitting outside their apartment complex and drinking beer the night of the robbery. Appellant said he was going to his grandmother's house, about a block over and in the opposite direction from the robbery scene, to get a sandwich. He was gone, at the most, ten minutes. Depending upon which witness was testifying, appellant left around 8:30 p.m. or 9:00 p.m.; 8:45 p.m. or 9:00 p.m.; or 10:00 p.m. All of them testified it was either dark or getting dark. "Little Man," one of these witnesses, testified appellant told him he had to go to his grandmother's house to get toilet paper because the people downstairs did not have any. Little Man testified that, after appellant was arrested, he went to appellant's grandmother's house and told her and appellant's uncle, who also lived there, that appellant had just been arrested. Appellant's uncle testified it was around 6:00 p.m. and daylight when appellant came over to the house to get a sandwich and some toilet paper. He said he walked with appellant about a block when appellant left and as soon as he got back to the house, appellant's grandmother told him appellant had been arrested. On rebuttal, the State offered evidence that Little Man offered Tippit's daughter a bribe if Tippit would "squash that shit" and drop the case against appellant. Having reviewed all of the evidence, we cannot conclude that the great weight and preponderance of the evidence contradicts the jury's verdict. As a result, we conclude the evidence is factually sufficient to support the verdict. We overrule appellant's first issue. In his second issue, appellant asks us to modify the factual sufficiency standard as announced in Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004). After appellant filed his brief in this case, the Texas Court of Criminal Appeals issued an opinion modifying the factual sufficiency standard of review. See Watson, 204 S.W.3d at 417; see also Marshall, 210 S.W.3d at 625. Appellant concedes we are bound to follow decisions of the Texas Court of Criminal Appeals. See State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex.Crim.App.), cert. denied, 404 U.S. 910 (1971); Sherman v. State, 12 S.W.3d 489, 494 (Tex.App.-Dallas 1999, no pet.). We overrule appellant's second issue. We affirm the trial court's judgment.
Tippit testified she and her sister, who helped her park cars during the Fair, would go to the restroom behind a car and that is why they needed the toilet paper.