Opinion
No. 05-04-01852-CR
Opinion issued January 20, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-71182-KV. Affirmed.
Before Justices MORRIS, MOSELEY, and RICHTER.
OPINION
At trial, a jury convicted Kevin Devon Jackson of robbery. He now complains on appeal that the evidence against him is legally and factually insufficient, the trial court erred in failing to charge the jury on two lesser included offenses, and the trial court erred in failing to conduct a pretrial identification hearing. Concluding appellant's complaints are without merit, we affirm the trial court's judgment.
Factual Background
A man identified as appellant entered a women's clothing store three times in one day. The first two times, appellant asked the female clerks in the store if "Samantha Stevens" worked there. The third time, appellant came in with a companion and asked to use the phone to call his halfway house. When he got off the phone, he put his hand in his jacket pocket, put the jacket pocket up on the store's counter in such a way as to indicate he was holding a weapon in the pocket, and told the two clerks to be "cool" about what was happening. Then he told one of the clerks, the complainant in the case, to give him the store's money. She did so. Appellant and his companion took approximately one thousand dollars from the store's lockbox. Afterward, appellant instructed the clerks to move to the store's back office. His hand was still in his pocket. The clerks were scared they were going to be hurt or sexually assaulted. They stayed in the back for a while, then emerged when they confirmed appellant and his cohort were gone. A phone call to the number appellant had called from the store ultimately led to appellant's picture being included in a photographic lineup. Both women clearly identified appellant in the photographic lineup and at trial. Police dusted for fingerprints at the scene, but were unable to find any useable prints. One of the officers who reported to the store testified that the non-complainant clerk "looked like she was about to go into a panic attack." The event so terrified her that she quit her job at the store the night of the robbery.Discussion
In his first issue, appellant contends the evidence against him is factually insufficient to prove that he was one of the robbers. In his second issue, appellant contends the evidence against him is legally insufficient to prove he threatened or placed the complainant clerk in fear of imminent bodily injury. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and 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, 318-19 (1979). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination or, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The jury, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). Here, appellant first complains the evidence is factually insufficient to prove he was one of the robbers. He contends the clerks' testimony against him is insufficient because the clerk who was not the complainant in the case was extremely frightened during the event and appeared to be having a panic attack afterward. He therefore alleges that her testimony was necessarily unreliable. Appellant further contends there was no physical evidence linking him with the theft or the halfway house the robber supposedly called. Despite these contentions, the complainant clerk specifically identified appellant both before trial in a photographic lineup and in person at trial as the man who entered the store and spoke with her two times before finally returning to the store to rob her. The other clerk also unequivocally identified appellant. Deferring to the jury's role as sole judge of witness credibility, we conclude the evidence is factually sufficient to support appellant's conviction. We resolve appellant's first issue against him. Appellant next contends the evidence is legally insufficient to prove he threatened or placed the complainant in fear of imminent bodily injury. We disagree. The testimony of the complainant and the other clerk illustrates both women believed appellant may have had a weapon in his pocket that he would use against them if they did not comply with his demands. They feared he would injure or sexually assault them. Viewing this evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient. We resolve appellant's second issue against him. In his third and fourth issues, appellant complains the trial court erred by denying his requests for including instructions on the lesser included offenses of theft from a person and misdemeanor theft in the jury charge. To be entitled to a lesser included offense instruction, a defendant must show: (1) the lesser included offense is included within the proof necessary to establish the offense charged and (2) some evidence exists in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense. See Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000). The evidence must show the lesser included offense is a valid rational alternative to the charged offense. Id. Theft from a person and misdemeanor theft both satisfy the first criterion because they are included within the proof necessary to establish the charged robbery. Therefore, to be entitled to a reversal under his third and fourth issues, appellant must show some evidence in the record would have permitted the jury in his case to find rationally that he was guilty only of the lesser included offenses. Appellant argues he was entitled to jury instructions on theft from a person and misdemeanor theft because, he contends, there was some evidence in the record that he merely took the money without threatening the complainant or placing her in fear of imminent bodily injury. Again, we disagree. In this case the evidence of how the offense occurred came from the testimony of the complainant and the other clerk. Both stated that appellant got the complainant to give him the store's money by displaying a concealed weapon in his jacket pocket or pretending to have a concealed weapon in his jacket pocket. The women feared appellant was going to hurt or sexually assault them. Their description of the offense necessarily included appellant's threatening the complainant or placing her in fear of imminent bodily injury. Thus, no evidence in the case showed appellant was guilty only of the lesser included offenses of theft from a person or misdemeanor theft. We resolve appellant's third and fourth issues against him. In his fifth and final issue, appellant complains the trial court erred by failing to conduct a pretrial identification hearing on the photographic lineup. Before jury argument for the guilt-innocence phase of trial, the following exchange occurred between appellant's counsel and the trial judge:[Defense counsel]: Judge, I just wanted to get on the record also that before the trial started I did request an identification hearing and that was denied by the Court.
THE COURT: That's right.Appellant did not object to the admission of the photographs from the lineup into evidence. He did not object to the clerks' identification of him as one of the robbers, nor did he object to any testimony about the two clerks identifying him in the lineup. Even if the trial court erred by refusing to conduct a hearing on the clerks' pretrial identification of appellant from the photographic lineup, appellant was not harmed by the alleged error. See Tex.R.App.P. 44.2(b). Determining the admissibility of an in-court identification where the witness has previously identified the defendant in a pretrial lineup involves a two-step analysis: (1) whether the lineup procedure was impermissibly suggestive, and (2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. See Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995). The officer who composed the lineup in this case testified as follows about how the process works: ". . . when you get a possible subject photograph, you need to get five other photographs with the same, approximately same age, the same hair length, . . . try to get the same backgrounds, if you can, on the pictures. Nothing to make any certain picture stand out all its own." Appellant's photographic lineup appears to meet all these criteria. Moreover, there was no witness testimony that the officer in any way suggested either clerk should pick a particular photograph from the lineup. Appellant argues that he was "prevented from effectively challenging the admissibility of the in-court identifications made by the two store clerks." He specifically argues that "[f]or example, the defense attorney was unable to question [outside the presence of the jury] the detective as to when and how he obtained the Appellant's photograph that was included in the array." During cross examination of the State's witnesses on the pretrial identifications, the trial court never limited the subject matter of the defense questioning. The defense also never asked to cross-examine the witnesses on this subject matter outside the presence of the jury. And no elicited testimony indicated the lineup was unduly suggestive. Based on the record before us, we cannot conclude the clerks' identification of appellant was tainted by the pretrial lineup. For this reason, any error in the trial court's decision to deny appellant's request for a pretrial identification hearing was harmless. We resolve appellant's fifth issue against him. We affirm the trial court's judgment.