No. 05-03-00404-CR
Opinion Filed November 26, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-53354-JN.
Before Justices MORRIS, WRIGHT, and RICHTER.
MARTIN RICHTER, Justice.
A jury convicted Gregory Duane Hicks of aggravated robbery of an elderly person. During the punishment phase, the jury found one enhancement paragraph true and sentenced appellant to sixty-five years confinement. In two points of error, appellant contends the evidence is legally and factually insufficient to support the jury's verdict. We affirm the trial court's judgment.
Background
At 3:15 p.m. on July 28, 2002, seventy-year-old Edna Bland drove to a Carnival grocery store located on South St. Augustine. After purchasing a few items, Bland walked back to her car, got into the driver's seat, then leaned over the passenger seat to place the groceries on the floor. She had one leg on the ground and one leg inside the car, and the straps of her purse were wrapped around her left arm. Bland felt something hit her leg, then felt someone squeeze her arm. A man pulled Bland's purse and grabbed her around the throat. The man said "give me your purse" as he choked Bland Bland testified that while the man choked her, he twisted her neck and head in the opposite direction. She could not see his face. The man said "I want your money" several times, and he covered her nose and mouth with his hand so she would not scream. When the man did move his hand from her mouth, Bland yelled for help. Bland saw a woman get out of a car and walk toward her, and a man walked toward her car from the rear. Her attacker told them, "This is my auntie." The man who had come to help her told the attacker he was going to call the police. The attacker let go of Bland's neck and purse and walked away from the area. Bland testified that when police later brought a man back to the scene, she told police the man in the back seat of the patrol car looked like the man who had choked her and tried to take her purse. Paramedics treated Bland at the scene, but she did not go to a hospital. Bland testified she sustained pain and blurred vision during and after the attack. Bland further testified she was not completely sure appellant was the man who choked her and tried to take her purse, but appellant looked like her attacker. Charmaine Montanye testified appellant was the man she saw with his hands around Bland's neck and mouth. Montanye parked in a space directly in front of Bland's car when she heard a woman scream. Montanye got out of her car and asked appellant what he was doing. Appellant said, "This is my auntie. She's a crazy lady." Appellant continued to choke Bland even though Montanye told him several times to stop. A man came to the car and told appellant he was going to call police. Appellant took his hands from Bland's throat and arm, then he walked away from the parking lot. Montanye got back in her car and followed appellant. She saw appellant run into a house that was up the street from the store, then come outside again. Montanye flagged down a patrol car and told police a man who was up the street had tried to hurt a woman at the store. The officers arrested appellant and took him back to the store parking lot. Montanye identified appellant at the scene as the man she saw choking Bland and trying to take Bland's purse. Montanye testified she did not remember what clothing appellant was wearing on that date. David Wiese testified he was removing equipment from a trailer in the store parking lot when he heard someone screaming. Wiese saw two people struggling at a car. Wiese approached the rear of the car and saw Bland sitting in the driver's seat with one foot on the ground. Appellant was leaning inside the car with his left hand around Bland's throat and his right hand pulling on Bland's purse. Wiese told appellant to stop. Wiese testified he did not see anyone else trying to intervene or talk to appellant. Appellant repeatedly stated the woman was his "auntie." Wiese testified he stood only six feet away from appellant and demanded that appellant let Bland go. After a few moments, appellant stopped choking Bland and walked away. Wiese did not see where appellant went, nor did he see anyone follow appellant in a car. A short time after appellant left the parking lot, an officer brought appellant back to the scene. Wiese identified appellant at the scene as the man he saw choking Bland and trying to take Bland's purse. Dallas police officer Joe Morin testified he was on his way to a call when Montanye flagged him down at the parking lot of a store in the 300 block of South St. Augustine. When he stopped, both Montanye and Wiese told him a man just robbed a woman and the man walked down the street. They gave Morin a good description of the suspect, including the height, weight, age, clothing, and direction of travel of the suspect. Morin drove a short distance up the street and saw appellant, who matched the description given to him by Montanye and Wiese. Morin handcuffed appellant and drove him back to the scene of the offense. Morin testified both Montanye and Wiese identified appellant at the scene as the man they saw choking Bland and trying to take her purse. Morin further testified he did not recall anyone in a vehicle trying to flag him down, and both Montanye and Wiese were standing in the parking lot when he stopped. Appellant did not testify during the guilt/innocence phase of the trial. Applicable Law
A person commits robbery if, in the course of committing a theft, and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. Pen. Code Ann. § 29.02(a)(1) (Vernon 2003). A person commits aggravated robbery if, in the course of committing a robbery, he causes bodily injury to a person sixty-five years of age or older or places a person sixty-five years of age or older in fear of imminent bodily injury or death. Id. § 29.03(a)(3). In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.307, 318-19 (1979). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000). The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see also Johnson, 23 S.W.3d at 9. While the reviewing court has some authority to disregard evidence that supports the verdict, it may not substitute its own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex. App.-Dallas 1996, no pet.). Discussion
Appellant argues the evidence is legally and factually insufficient to prove he was the individual who committed the offense because Bland never positively identified appellant as the man who robbed her, and the testimony from other witnesses contradicted one another. The State responds the evidence is legally and factually sufficient to support appellant's conviction because two eye witnesses positively identified appellant at the scene and in open court as the assailant. We agree with the State. Montanye and Wiese both identified appellant at the scene as the person they saw choking Bland and trying to take Bland's purse. Montanye testified she talked to appellant for a few minutes trying to get him to let Bland go, and she followed appellant when he left the scene. Wiese testified he was only six feet away from appellant when he saw appellant choking Bland Bland testified she could not be certain that appellant was her assailant, but that he looked like the man who choked her. Bland also testified that while the man choked her, her neck and head were twisted in a direction away from the attacker's face. However, Montanye and Wiese positively identified appellant in open court as the man they saw who choked Bland and tried to take Bland's purse. Having reviewed the evidence under the appropriate standards, we conclude it is legally and factually sufficient to support appellant's conviction. See Jackson, 443 U.S. at 318-19; Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's two points of error. We affirm the trial court's judgment.