No. 05-05-01117-CR
Opinion Filed June 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-00841-UR. Affirm.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
Opinion By Justice RICHTER.
Ricky Dwayne Holloway appeals his conviction for aggravated robbery. In three points of error, Holloway challenges the legal and factual sufficiency of the evidence to establish his identity as the robber and the trial court's determination that his prior aggravated robbery convictions were admissible for impeachment purposes during the guilt-innocence phase of trial. Finding against Holloway, we affirm.
Background
Holloway was arrested after leading several police officers on a chase. The officers were responding to a "burglary-in-progress" call from the manager of a Dollar General store and had seen Holloway speeding away from an alley directly behind the store. Although Holloway was shorter and smaller than the store manager's estimate of the robber's height and weight, the officers saw Holloway discard during the chase a dark shirt, a butcher knife, and a "State Bank of Texas" money bag containing several hundred dollars. The store manager later identified the shirt as the shirt the robber wore and the butcher knife as the knife the robber used during the robbery. The store manager also identified the money bag as the bag the robber demanded from him. However, the store manager was unable to identify Holloway as the robber because the robber held a towel to his face during the robbery. No other witness was able to identify Holloway as the robber either. Holloway did not testify and unsuccessfully rested his defense at trial on this lack of evidence. Sufficiency of the Evidence
In his first two points of error, Holloway challenges the legal and factual sufficiency of the evidence to support his conviction. In arguing these points, Holloway does not dispute a robbery occurred at the Dollar General store nor that he was in possession of the knife and shirt used during the robbery and the money bag stolen from the store. Rather, his complaints stem from the lack of evidence showing he was the person who entered and robbed the store. Holloway maintains this lack of testimony renders the evidence legally and factually insufficient to support the conviction. We disagree. We review challenges to the legal and factual sufficiency of the evidence under well-known standards. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In reviewing a factual sufficiency challenge, we view all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In both sufficiency reviews, we must be appropriately deferential to the fact-finder's role as the exclusive judge of the witnesses' credibility and the weight given to the evidence. Jones v. State, 944 S.W.2d 642, 647-49 (Tex.Crim.App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App. Dallas 2003, no pet.). Based on the indictment in this case, to obtain a conviction, the State had to prove Holloway committed robbery and used or exhibited the knife as a deadly weapon. See Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 2003). The State could prove identity through direct evidence and inferences, and through circumstantial evidence such as evidence of flight and recent and unexplained possession of stolen property. See Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986); Hardesty v. State, 656 S.W.2d 73, 77-78 (Tex.Crim.App. 1983); Roberson v. State, 16 S.W.3d 156, 157 (Tex.App. Austin 2000, pet. ref'd). Viewing the evidence here under the appropriate standards, we conclude the evidence is legally and factually sufficient to support the conviction. Although no witness identified Holloway as the robber, other evidence connected Holloway to the robbery: his fleeing from the alley behind the store, the dark shirt, the butcher knife, and the money bag. From this evidence a rational juror could have inferred and found beyond a reasonable doubt that Holloway was the person who committed the robbery. See Hardesty, 656 S.W.2d at 77-78 (evidence of recent and unexplained possession of stolen property and evidence of flight circumstances from which guilt can be inferred); Sosa v. State, 177 S.W.3d 227, 230-32 (Tex.App. Houston [1st Dist.] 2005, no pet.) (evidence legally and factually sufficient to establish identity and support conviction even though witnesses unable to describe robber's facial appearance where witnesses identified appellant as robber based on clothing, height, and build, and appellant seen fleeing scene). Moreover, no other explanation for Holloway's possession of those items was offered. See Hardesty, 656 S.W.2d at 77. That Holloway did not exactly match the height and weight description the store manager provided was a matter for the jury to weigh. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. [Panel Op.] 1978) (discrepancy in description of robber's height compared to defendant's actual height and discrepancy in description of hair length affects weight and not admissibility of evidence). By returning a verdict of guilty the jury necessarily gave that matter little weight in light of all the other evidence, and we will not disturb that finding. See Jones, 944 S.W.2d at 647-49. We overrule Holloway's first and second points of error. Admissibility of Prior Convictions for Impeachment Purposes
Holloway's third point of error stems from the trial judge's ruling trial that the State could impeach Holloway with two prior aggravated robbery convictions should he testify during the guilt-innocence phase of trial. Based on the judge's ruling, Holloway chose not to testify. Holloway now complains the judge abused his discretion in making that determination. However, to complain on appeal of a trial judge's determination that the prosecutor may impeach the defendant with a prior conviction, the defendant must actually testify. Luce v. United States, 469 U.S. 38, 43 (1984); Jackson v. State, 992 S.W.2d 469, 479-480 (Tex.Crim.App. 1999). Because Holloway chose not to testify, he has not preserved his complaint. Jackson, 992 S.W.2d at 479-80. We overrule his third point of error. We affirm the trial court's judgment.