Opinion
No. 05-07-01344-CR
Opinion Filed May 27, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(B)
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F06-70895-JI.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted James Earl Henley of aggravated robbery and, after finding an enhancement paragraph true, assessed punishment at seventy years' confinement. Henley appeals arguing the evidence is legally and factually insufficient to show he was one of the two robbers, and that the trial court erred by admitting (a) a video of the robbery that had been enhanced and (b) hearsay testimony during the punishment hearing. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. Henley's first and second points of error challenge the legal and factual sufficiency of the evidence to prove he was one of the robbers. We apply the appropriate standard of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (legal sufficiency). See also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (factual sufficiency); Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) (factual sufficiency); Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App. 2002). A person commits the offense of aggravated robbery if he commits robbery and causes serious bodily injury to another or uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(1), (2) (Vernon 2003). A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property; appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(a), (b)(1) (Vernon Supp. 2008). A firearm is a deadly weapon. Id. § 1.07(a)(17). The record contains evidence that two men armed with handguns and with bandanas over their faces robbed the clerk and customers of a convenience store. One man wearing a dark shirt pointed a black handgun at the clerk, demanded money, and took money out of the cash register. The other man, wearing a white shirt, pointed a grey handgun at customers at the back of the store and took money from them. The men fled on foot and were pursued by two witnesses in a vehicle. The witnesses saw two men running from the store across a field. They later saw the men enter a nearby house. Police surrounded the house and contacted its residents, Benie Valentine and his girlfriend, Laronda Franklin. Valentine gave consent to Officer Freeman to enter the house. Freeman noticed attic insulation on the carpet and asked Valentine if anyone was hiding in the attic. Valentine said there were people hiding in the attic. Freeman removed the residents from the house and contacted the SWAT team for assistance. After negotiations with SWAT officers, Henley and Robert Burrough came out of the house and were arrested. Henley was wearing a black shirt and Burrough a long white shirt when they came out of the house. Both men had attic insulation on them. Valentine testified he picked up Burrough, a friend of his, and they picked up Henley, who Valentine had not met before that day. The three men went back to Valentine's house. Later, Burrough and Henley left saying they would be right back. About twenty-five minutes later, Henley and Burrough came back, beating on the door. When police arrived, Valentine said everyone started to panic. At some point, Valentine thought he saw Henley and Burrough holding guns. After fifteen minutes, Valentine opened the door to police. Franklin testified that before the police arrived, two men began beating on the door that day and Valentine let them in. She identified Henley as one of the men and said he was wearing a black shirt and carrying a black gun. Video recordings from two different cameras in the store were shown to the jury. The recordings show two men with guns and their faces covered enter the store and point guns at customers and the clerk. One man was wearing a dark shirt. He pointed a gun at the clerk, went behind the counter, and took money from the cash register. The other man was wearing a long white shirt. He motioned for the customer to get on the floor, then reached down and took something. The men then left the store on foot. The arrest was filmed by a television show that was with the SWAT unit that responded to the scene. The video was shown to the jury. The video shows Henley coming out of the house with his hands in the air. He was wearing a black shirt and had attic insulation on his clothing and face. The video shows another man coming out of the house sometime later wearing a long white shirt. Police found two handguns, one black and one grey, under a mattress in the house and two baseball caps and a bandanna on top of the bed. Police were unable to obtain fingerprints from either handgun. Under the insulation in the attic, police found a black baseball cap with over $400 in it. Considering all the evidence (including that summarized above) in the light most favorable to the verdict, we conclude a rational trier of fact could have found the accused guilty of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95. Thus, we decide Henley's legal sufficiency issue against him. Henley contends the evidence is factually insufficient to support his conviction because one of the witnesses who followed the men running from the store said he thought one of the men was wearing a blue shirt and the other a white shirt. Henley argues Valentine was wearing a blue shirt the day of the robbery and Franklin tried to protect Valentine by saying Henley came to the house with a gun. However, the clerk testified the man who robbed him wore a dark colored shirt and the video recordings show one of the robbers wore a dark shirt. The jury was in the best position to determine the credibility of the witnesses and resolve conflicts in the evidence. We give due deference to their determinations. See Marshall, 210 S.W.3d at 625. Considering all the evidence in a neutral light, we conclude the fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson, 204 S.W.3d at 415; Fuller, 73 S.W.3d at 254. We need not further detail the rest of the evidence. See Roberts v. State, 221 S.W.3d 659, 664-65 (Tex.Crim.App. 2007). We decide Henley's factual sufficiency issue against him. Henley's third point of error argues the trial court erred by admitting the video recordings from the convenience store security cameras because they were not the original recordings and had been enhanced. A forensic analyst testified he took one black and white and one color video file from security cameras in the store, enhanced the color to bring it back to normal and bring up the levels to better see what was taking place, and transferred them to a DVD. He testified he did not alter any video and the video was exactly as the original video except that it had been lightened to enable the image to be seen more clearly. Henley objected to admission of the enhanced DVD because it had been altered and enhanced and was not the original. The trial court overruled the objection. We conclude the trial court did not abuse its discretion by admitting the video recordings as duplicates of the original. See Narvaiz v. State, 840 S.W.2d 415, 431 (Tex.Crim.App. 1992) (trial court did not abuse discretion by admitting enhanced audio recording of 911 call as duplicate under Tex. R. Evid. 1003). We overrule Henley's third point of error. Henley's fourth point of error argues the trial court erred by admitting hearsay evidence over his objection during the punishment phase of the trial. The State offered evidence about Henley's conduct while in jail awaiting trial. A detention officer was asked why Henley was moved from one housing location to another in the jail. The officer testified other inmates complained Henley was stealing from the commissary and taking their breakfast trays. Henley was moved because the inmates were threatening to jump him. Henley's hearsay objection was overruled. The State argues the officer's testimony about what other inmates said is not hearsay because it was not offered for the truth of the matter asserted. See Tex. R. Evid. 801(d). The State contends the evidence was offered to show a pattern of Henley antagonizing jail officers and other inmates and his tendency to draw negative attention. We conclude any error in overruling Henley's hearsay objection was harmless. See Tex. R. App. P. 44.2(b); Tex. R. Evid. 103(a). Other evidence was admitted of Henley's improper conduct in jail and his prior criminal history. We conclude any error did not affect Henley's substantial rights. Tex. R. App. P. 44.2(b); see Motilla v. State, 78 S.W.3d 352, 357 (Tex.Crim.App. 2002) (substantial rights not affected if appellate court after examining entire record has fair assurance error did not influence jury or had but slight effect). We overrule Henley's fourth point of error. We affirm the trial court's judgment.