Opinion
No. 05-09-01462-CR
Opinion Filed April 7, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F08-64205-Y.
Before Justices MOSELEY, RICHTER, and LANG-MIERS.
OPINION
A jury convicted appellant, Dearick Jackson, of the offense of aggravated robbery. The trial court sentenced appellant to imprisonment for five years. In two issues, appellant complains the trial court abused its discretion by improperly answering a jury question and attacks the factual sufficiency of the evidence . We affirm the trial court's judgment. Appellant was tried before a jury on an indictment that on December 17, 2008, he committed a robbery with the use and exhibition of a firearm. A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, the person 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. Tex. Penal Code Ann. § 29.02 (West 2003). A person commits aggravated robbery if the person uses or exhibits a deadly weapon in the course of a robbery. Tex. Penal Code Ann. § 29.03(a)(2) (West 2003). A deadly weapon is anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See McCain v. State, 22 S.W.3d 497, 502-03 (Tex. Crim. App. 2000). In his first issue, appellant argues the trial court erred by improperly answering a jury question with testimony that was different than the testimony agreed upon by appellant. During deliberations, the jury sent a note to the trial court stating the jury was in disagreement concerning the following: (1) who called the police, and (2) how the license plate was identified and by whom. According to the record, the trial court judge read the jury's questions to counsel for both parties and stated, "[a]ll of that stuff is in the record. Who called the police, that's from the victim, the alleged victim. And how is the license plate identified? That's the second witness." The judge then asked counsel for both parties if they had any objections to him answering those questions. The record reflects that both counsel for the State and counsel for the defense stated they had no objection. Appellant now complains the testimony read to the jury was not only incomplete, erroneous, and outside the particular point in dispute, but was also extremely prejudicial to appellant. Appellant asserts that the record shows it was the victim who gave the license plate number to the police and therefore, the court's response to the jury should have included the victim's testimony instead of the testimony of the second witness, Officer Loera. Because Officer Loera's testimony related to his contact with appellant six months prior to the subject robbery, appellant argues Officer Loera's testimony focused the jury's attention on the fact that appellant had been arrested for something prior to the instant offense. The record reflects that in discussing the jury's questions, the trial court told counsel for both parties the second witness identified the license plate. Officer Loera was the second witness. The trial court asked counsel for both parties if they had any objections to his answers and both counsel stated no. There is nothing in the record to indicate appellant ever objected to the trial court's response to the jury. Therefore, appellant presents nothing for appeal. See Tex. R. App. P. 33.1(a)(1); see also Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995). Appellant's first issue is overruled. In his second issue, appellant challenges the factual sufficiency of the evidence to support his conviction for aggravated robbery. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). This standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 899 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. Appellant contends the evidence is insufficient to support his conviction in this case because the only evidence connecting him to the robbery was the license plate number of the car used in the offense and unreliable eyewitness identification from a photo lineup. Alejo Limon, the robbery victim, testified that on December 17, 2008, he and several other men were working on a pipeline at a construction site in south Dallas. Around 3:00 p.m., he noticed a white car drive by the construction site and turn around approximately two blocks away. Shortly thereafter, two men approached Limon. One of the men held a revolver and pointed it at a saw that Limon used to cut pipes. The second man grabbed the saw and they both ran. The robbery happened very quickly, taking only about two minutes. The stolen saw was worth $800 to $1,000. Limon testified he was afraid the man holding the gun was going to shoot someone. Limon saw the robbers drive away in the white car as he called the police. Limon testified that he gave the police the license plate number on the white car. On appeal, appellant argues Limon did not see the license plate number on the car used in the robbery and speculates it is possible Limon retrieved a license plate number from a similar white car at some other time and decided to give that license plate number to the police. There is no testimony to support appellant's speculation. Detective Scoggins was assigned to investigate the robbery. He testified he had information regarding a suspect vehicle with a license plate number attached, so he started by investigating that license plate. Based on the license plate number, Detective Scoggins developed appellant as a suspect. He incorporated appellant's photo into a lineup of six photographs, had the lineup approved by his supervisor, and then contacted Limon. On December 19, 2008, two days after the robbery, Detective Scoggins met Limon at the same construction site, confirmed the facts of the robbery, and then showed Limon the photo lineup. Detective Scoggins testified he did not make any suggestion as to Limon's selection of a suspect. When Limon saw appellant's photo, he told Detective Scoggins "this is the guy who pulled out the weapon and pointed to the saw." Limon testified that when he identified appellant's photo, he was one hundred percent sure appellant was the man with the gun. Limon then wrote his name and the date on the back of appellant's photo. Detective Scoggins testified that the Dallas Police Department had recently changed its photographic lineup policy to mandate blind sequential lineups, rather than the type of lineup used in appellant's case. After Limon selected appellant's photograph from the lineup, Detective Scoggins went to the address identified through his investigation and found the white car that was used in the robbery. Appellant was arrested later that day at the residence where the car was found. Detective Scoggins identified appellant in the courtroom as the same man whose photograph Limon had selected from the photo lineup. It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury was entitled to believe any portion of Limon's testimony, including his statement that he gave the police the license plate number of the car in which the robbers left the scene. The jury was likewise entitled to decide whether Limon's identification of appellant from the photo lineup was reliable. Considering all the evidence in the light most favorable to the verdict, we conclude that the jury was rationally justified in finding guilt beyond a reasonable doubt and the evidence is sufficient to support appellant's conviction for aggravated robbery. See Brooks, 323 S.W.3d at 895, 899. Appellant's second issue is overruled. The judgment of the trial court is affirmed.