Nos. 05-04-00149-CR, 05-04-00150-CR, 05-04-00151-CR
Opinion issued October 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-52421-MU, F03-52422-MU, and F03-52423-MU. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MORRIS, Justice.
A jury convicted Gustine Gaston, Jr. of three robbery offenses. In a single issue on appeal, appellant contends the evidence is factually insufficient to support the convictions. We affirm the trial court's judgments.
Factual Background
On June 6, 2003, Olivia Galindo was about to close Jiffy Cleaners, where she worked, when a man Galindo had seen walking back and forth outside the store came in and asked what time they closed. Galindo later identified appellant as that man. After Galindo told appellant the store closed at seven o'clock, appellant said he would come back because he had to get his clothes. When appellant returned, Galindo asked appellant for his telephone number. Another customer came into the store and stood behind appellant. Appellant told Galindo he would have to go get the telephone number, then he left again. A short time later, appellant returned and handed Galindo a note that said, "I got a gun. Give me all your money or die." Galindo saw the handle of a gun sticking out of appellant's waistband. Appellant said, "If you yell or say anything, I'll blow your head off." Galindo gave appellant cash, credit card receipts, and checks that totaled over $100. Appellant ordered Galindo to get on the floor. Appellant then left through the front door. Galindo called Joon Kim, the store's owner, and told him about the robbery. Galindo did not call police. Kim told Galindo to get out of the store and go home. On June 9, 2003, Galindo was having lunch at Jiffy Cleaners with Joon Kim and Beatrice Caballero. Caballero's two-year-old son was playing near the cash register. Suddenly Galindo saw appellant standing near them. Galindo said to Kim, "That's him, that's him," meaning the man who had previously robbed the store. Appellant then said he had a gun and ordered them to give him all the money. Appellant also said he would "hurt the baby" if they did not give him the money. Kim opened the cash register, and appellant took about $300. Appellant left the store through the back door. Galindo called the police. When the police arrived, Galindo also told them about the June 6 robbery and said the same man had committed both robberies. Kim, who had run to the business next door to tell them to call the police, saw appellant coming around the corner of the building from the back. Upon seeing Kim, appellant turned and ran to a nearby wooded area. Kim followed. He saw appellant get into a car, then he returned to Jiffy Cleaners and talked with police. Dallas police officer Paul Varghese responded to the June 9 robbery call at Jiffy Cleaners. Varghese spoke to Kim, who told Varghese the same person had also robbed the cleaners on June 6. Kim gave Varghese a description of the suspect, told Varghese where the suspect went, and said that the suspect got into a car on the other side of a nearby wooded area. Varghese later learned that other officers had stopped a car fitting Kim's description and found three occupants inside. Varghese took Kim to the location to see if he could identify anyone. Kim said the suspect was not in the vehicle. After interviewing the occupants of the vehicle, the police determined the suspect had been dropped off at a house on a nearby street. The officers went to that house. The man who answered the front door at the house, later identified as appellant's brother, refused to let police search inside. Police later discovered that appellant lived at the residence. On June 10, 2003, Shirley Bambico was working the front counter of Comet Cleaners near the robbed Jiffy Cleaners location. A man came into the store at 11:30 a.m., motioned to Bambico that he could not talk, and handed her a note. Bambico later identified appellant as the man who had given her the note. The note said, "I have a gun. If you don't want to die, give me the money." Appellant raised the handle of a gun from his waistband, then handed Bambico a blue bank bag. Bambico took the bag and filled it with money from the register. She then gave the bag and the note back to appellant. The bag contained about $200. Appellant left the store through the front door. Bambico called the police. When the police arrived, she gave them appellant's description. About fifteen minutes later, an officer took Bambico to a nearby wooded area to possibly identify a person who was already in custody. Bambico identified appellant as the man who had robbed the cleaners that morning. A customer who had witnessed the robbery also identified appellant at that time. In addition, Galindo — who had been driven to the location by police — identified appellant as the man who had robbed the Jiffy Cleaners on June 6 and June 9. Varghese testified he also responded to the robbery call at the Comet Cleaners. After talking to witnesses who gave a description of the suspect, Varghese drove toward the nearby wooded area. Varghese saw a suspect matching the description Bambico had given him. Varghese noted the suspect's description was similar to the description given to him by Kim and Galindo the previous day. Varghese identified appellant as the man he saw in the wooded area. When Varghese first approached, he saw appellant drop something to the ground. Appellant was sweaty and acted evasive. Varghese handcuffed appellant, then told other officers where appellant had dropped the object. The officers found what appeared to be a gun. The item was actually a tool used to attach rivets that looked like a gun. Officers also found a blue bank bag in the wooded area. On June 11, 2003, police detective William Smith went to Jiffy Cleaners and showed a photographic lineup to Galindo, Caballero, and Kim. Galindo translated Smith's instructions into Spanish for Caballero because Caballero did not speak English and Smith did not speak Spanish. Galindo, Caballero, and Kim each separately identified appellant as the man who had robbed the Jiffy Cleaners. Discussion
Appellant complains in his sole issue on appeal that the evidence is factually insufficient to support his convictions. Appellant specifically complains the evidence is factually insufficient to support the convictions because no physical evidence, such as fingerprints or DNA, linked him to the robberies. He further contends the witnesses' identifications were tainted by procedures used by police because some of the witnesses were together when they identified appellant in the wooded area, some of the witnesses were not separated when viewing the photographic lineup, and one witness was used to translate the officer's instructions for the photographic lineup to another witness. In reviewing the factual sufficiency of the evidence, we 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). 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, No. 539-02, 2004 WL 840786, *7 (Tex.Crim.App. Apr. 21, 2004). Evidence can be factually insufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough the beyond-a-reasonable-doubt standard could not have been met. See id. Despite appellant's complaints, he was linked to all three offenses by eyewitnesses. Galindo identified appellant as the robber of the Jiffy Cleaners on June 6 and June 9. Caballero and Kim identified appellant as the robber of the Jiffy Cleaners on June 9, and Bambico identified appellant as the robber of the Comet Cleaners on June 10, ten minutes after the robbery. Bambico identified appellant at the scene of his arrest, and Galindo, Caballero, and Kim identified appellant from a photographic lineup shown to them individually at the cleaners two days after the June 9 robbery. Moreover, Bambico and Galindo saw a gun in appellant's waistband when he robbed them, and Varghese saw appellant drop an object that looked like a gun. Officers found the blue bank bag near the spot where appellant was arrested. The jury, as the exclusive judge of the facts and of the weight to be given to the testimony, was responsible for weighing witness credibility in light of the allegedly tainted identification procedures. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). After conducting a neutral review of the record, we conclude the evidence of guilt is not too weak to support a finding of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 2004 WL 840786, at *7. Accordingly, we resolve appellant's sole issue against him. We affirm the trial court's judgment in each case.