Opinion
No. 05-06-00861-CR
Opinion Filed January 8, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court Dallas County, Texas, Trial Court Cause No. F05-23539-H.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
A jury convicted David Lee Goldine of aggravated robbery and assessed punishment at ten years in prison. In three issues, appellant complains about the legal and factual sufficiency of the evidence to support his conviction and the admission of evidence. We affirm. Glenda Bolton testified she went to Kroger's grocery store in Duncanville at about 11:15 p.m. on July 1, 2005. While walking into the store, she noticed two males standing outside. When she left the store about an hour later, she walked past the same two males. While putting the groceries in her car trunk, one of the men ran toward her. The man pulled out a shiny revolver and demanded her purse. Bolton said she handed her purse to the man, who then fled on foot. Bolton said the parking lot was well-lit and she saw the robber's face and what he was wearing. She described him as tall and slim and wearing black shorts, shirt, and a "doo-rag." At trial, she identified appellant as the robber. Bolton went back into the store and told an employee to call the police. Within minutes, Duncanville police officer Jessie Boleman of the K-9 unit arrived with his Belgian Malinois, Stone. Among other things, Stone had been trained to track a "fear scent," which is the scent left when a person is "highly stressed, running." According to Officer Boleman, Stone immediately picked up a scent and tracked it to a nearby apartment complex and, in particular, a building containing apartment 164. Officer Boleman knew from previous dealings with appellant that he lived at apartment 164. Officer Boleman said he knocked on the door of the apartment, but no one answered. Officer Boleman acknowledged that he could not say that appellant left the scent picked up by Stone. He denied telling other officers that the dog tracked to apartment 192, although Boleman and other officers testified appellant was also associated with apartment 192. Officer James Vignali testified that he arrived at work at 5 a.m. July 2. While checking the crimes that had occurred over the previous twelve hours, Officer Vignali saw the aggravated robbery of Glenda Bolton. Officer Vignali spoke with Officer Boleman, who told him what had happened and that the dog had tracked a possible suspect. Vignali, who was also familiar with appellant, put together a photographic lineup. He showed the photographs to Bolton that afternoon, less than fifteen hours after the robbery. Officer Vignali said she "almost immediately" identified appellant's photograph. Similarly, Bolton testified she looked at each photograph before selecting appellant's. She testified she had no hesitation in identifying appellant as the man who robbed her. That night, police arrested appellant. His mother gave consent to search the apartment, and police found a black revolver in appellant's bedroom. The revolver was in a backpack and was wrapped in a wet sock. Two months after he was booked into the county jail, jail employees confiscated a doo-rag from appellant. The doo-rag was not listed on property taken from appellant at the time he was placed in jail. The State also presented the testimony of a Kroger employee and customer who were at the store on the night of the robbery. The employee, seventeen-year-old Brandon Wheeler, testified that he saw two males outside the store between 11 and 11:30 p.m. One was on a bicycle and the other was seated on a bench. The men were not talking, "like they didn't know each other or something." He said he could not identify either man. Vicky Wade, a customer, testified she was at Kroger on the night of the robbery. As she drove up, she saw some "young guys" in the parking lot. One was on a bicycle, and the other two were "[j]ust standing around." As she was walking toward the store, she heard a woman scream. She turned and saw a young man running off with the woman's purse; the other two males also fled. Although she did not see the robber's face, she said he had "real short" hair and did not see a doo-rag. She testified she could not identify the robber. Several witnesses, including appellant, testified that appellant was at the birthday party of fifteen-year-old Kiki Ellis at the time of the robbery. The party was attended by about thirty children and was chaperoned by several adults. One rule of the party precluded anyone who left from returning to the party. Witnesses generally testified that appellant arrived at the party between 8:45 and 9 p.m. and left at about 1 a.m. Appellant's teen-age cousin Dy'Mond Caviness, Kiki, Kiki's mother Racinda Ellis, Kiki's cousin Markus Jones, and Kiki's uncle Fred Ashe, who was one of the adult chaperones, all testified that appellant did not leave the party until it was over. Both Racinda Ellis and Fred Ashe testified that appellant could not have left through another door, because the only other door was blocked. At about 1 a.m. Dy'Mond called appellant's mother to pick them up. Ashe drove appellant and several friends to a Blockbuster parking lot, where they waited in Ashe's car for appellant's mother, Angela Tooke. Tooke said she arrived five to ten minutes later and took them to her apartment. Dy'mond also testified that the gun found in appellant's room by police was not appellant's. According to Dy'Mond, a friend named Kurt gave the gun to another friend, Lundun, earlier in the day on July 1. Dy'Mond said Lundun put the gun in his backpack and took the backpack to appellant's because Lundun was spending the night there. Lundun did not testify at trial. Appellant denied robbing Glenda Bolton. He testified he went to the party, "stayed in the house the whole time," and never left. He said he got home that night at about 1:30 a.m. after his mother picked him up. He denied that the gun found in his room belonged to him. With respect to the doo-rag found in his possession after he had been in jail for two months, appellant said he bought it from another inmate for "[t]wo soups and a honeybun." In rebuttal, prosecutor Messina Madson, who was not involved in this case, testified that she heard Dy'Mond coaching Markus in the hall outside the courtroom about his cross-examination. Madson, who did not overhear the entire conversation, heard Dy-Mond say "he was grilling me" and "so you better be ready on that." A little while later, she saw Kiki walk out of courtroom after she testified and "talk to the entire group," which included Fred Ashe. Madson could not recall specifically what Kiki was telling the group, but said it concerned the trial. In addition to Madson's testimony, the State called police officer Ron Willcotts in rebuttal. Officer Wilcotts testified he was familar with appellant and that appellant was "somewhat" of a ringleader who tended to get the younger kids in trouble. In his first and second issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. On a legal sufficiency challenge, this Court reviews the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim, App. 2000). On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). Evidence that rationally supports a verdict of guilt beyond a reasonable doubt under the Jackson legal sufficiency standard can still be factually insufficient when the verdict "seems clearly wrong or manifestly unjust" or "against the great weight and preponderance of the evidence." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S. Ct. 87 (2007). The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury on these questions but only "to a very limited degree." Id. (explaining that factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determination). A factual sufficiency review is "barely distinguishable" from a Jackson legal sufficiency review. Id. Appellant argues he was misidentified as the robber and relies on the testimony of defense witnesses who provided an alibi. To discredit Bolton, he argues that she saw her assailant only briefly and was "scared." The evidence showed that Bolton was adamant that appellant was the person who robbed her at gunpoint. Bolton said the parking lot was well-lit and she saw the robber's face and looked into his eyes. She selected appellant's photograph from a lineup less than fifteen hours later. Bolton said that when she was shown the lineup, she carefully looked at each photograph and had no doubt that appellant was her assailant. Additionally, within minutes after the robbery, a police dog tracked a "fear scent" to the apartment building in which appellant lived. While there was conflicting evidence as to whether the dog tracked to apartment 164 or 192, there was evidence that appellant was connected to both apartments. During a search of appellant's bedroom, officers found a black revolver. Whether the black revolver was, in fact, the shiny revolver that Bolton said was used to rob her was an issue for the jury, and in particular, the weight to be given to the evidence. While appellant did present several witnesses to support his alibi defense, the State also presented rebuttal evidence that defense witnesses were discussing their testimony with each other, in violation of the judge's admonishments. From this, a jury could infer that the witnesses were trying to make sure their story of an alibi was consistent. In sum, it was the jury's role to resolve credibility issues and conflicting evidence. Although this Court is entitled to substitute its judgment for the jury "to a limited degree" when considering the factual sufficiency of the evidence, this case does not warrant such action. Considering the evidence under the appropriate standards, we conclude it is both legally and factually sufficient to support appellant's conviction. We overrule the first and second issues. In the third issue, appellant argues the trial court reversibly erred in admitting the doo-rag confiscated from appellant while in jail. Appellant contends admission of this evidence violated Texas Rule of Evidence 403. A trial court is entitled to broad discretion in ruling on a rule 403 objection. State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App. 2005). Rule 403 allows for the exclusion of otherwise relevant evidence when its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. A proper rule 403 analysis includes, but is not limited to four factors: (1) probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Mechler, 153 S.W.3d at 440. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Gallo v. State, No. AP-74900, 2007 WL 2781276, *1 (Tex.Crim.App. Sept. 26, 2007). "Unfair prejudice," as contemplated by rule 403, refers only to relevant evidence's tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged. Mechler, 153 S.W.3d at 440. Initially, we note that appellant complains that evidence was inadmissible under rule 403 but has made no attempt to analyze any of the appropriate factors. Regardless, we have reviewed the evidence and conclude its probative value was not substantially outweighed by unfair prejudice. The evidence was probative, given Bolton's testimony that her assailant wore a doo-rag. That the doo-rag was found on appellant in jail, rather than at his arrest, does not negate its probative value. As for its potential to impress the jury in some irrational way, no such potential existed because the jury heard all the facts surrounding the doo-rag. The State presented evidence that the doo-rag was confiscated from appellant while he was in jail. Appellant then testified that he went through multiple searches before being booked into the jail and did not have the doo-rag at that time. He testified he bought the doo-rag from another inmate for soup and a honeybun. Clearly, the jury could weigh this evidence and could draw its own conclusion as to whether the appellant had the doo-rag when arrested or bought it in the jail. It took the State very little time to develop its evidence, although appellant spent more time explaining how he obtained the doo-rag and when. Finally, while the State's need for the evidence probably was not critical, it was relevant to a highly contested issue in the case, identity. Having considered all the factors, we conclude the sum of the factors weigh in favor of admissibility. Accordingly, the trial court did not abuse its discretion in allowing the doo-rag into evidence. We overrule the third issue. We affirm the trial court's judgment.