Opinion
No. 05-04-00391-CR
Opinion Filed June 28, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-49136-WM.
Affirm.
Before Justices WRIGHT, MOSELEY, and LANG.
MEMORANDUM OPINION
A jury convicted Dominique Lawaun Jenkins of aggravated robbery and assessed punishment at twenty-two years' imprisonment. Jenkins appeals. In three points of error, Jenkins asserts the evidence is legally and factually insufficient to support a finding of guilt, and the trial court erred in failing to admit a videotape of a different robbery. 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. In his first two points of error, Jenkins contends the evidence is legally and factually insufficient to support the conviction. We apply the appropriate standards of review. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000) (factual sufficiency). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 7. The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). A person commits aggravated robbery if he uses or exhibits a deadly weapon in the course of committing robbery. Tex. Pen. Code Ann. §§ 29.02(a)(2), 29.03(a)(2), 31.03(a) (Vernon 2003 Supp. 2004-05). Jenkins's first two points of error address whether he committed the robbery. On March 3, 2003, Jenkins allegedly robbed a Dallas Walgreens drugstore at gunpoint. As Wendy Vasquez, an employee, rang up items for him, Jenkins reached into his pocket, pulled out a gun, and demanded the money in the cash register. Steve Benton, the store manager, gave Jenkins the contents of the register. Jenkins ran out of the store and into a waiting car. The store's security camera recorded the occurrence. Benton and Vasquez identified Jenkins as the robber from a photographic lineup provided by police. Benton provided the police with a description and a partial license plate of the vehicle. The next day, police stopped a car matching the description and having a similar license plate number for a traffic violation. Police arrested Jenkins. The arresting officers found a Walgreens rain-check receipt and a voided Walgreens cash register receipt in Jenkins's vehicle. Benton testified rain-check receipts were kept in the registers. The jury viewed both the original and an enhanced version of the Walgreens robbery videotape. The video never shows the face of the robber. However, Jenkins's girlfriend and mother watched the videotape of the robbery and testified that the man on the tape was not Jenkins, but another male, similar in appearance. Jenkins's girlfriend also testified Jenkins spent the entire day of the robbery with her and therefore, could not have robbed the Walgreens. Having considered all of the evidence, including the above evidence, in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that Jenkins robbed the Walgreens while using or exhibiting a deadly weapon. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Further, reviewing all the evidence in a neutral light, we cannot say the evidence of guilt is so obviously weak as to undermine confidence in the fact finder's determination or that the proof of guilt is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 10-11. We need not further detail the relevant evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We overrule Jenkins's first and second points of error. In his third point of error, Jenkins asserts the trial court erred in failing to admit a videotape of a different robbery that occurred at a La Quinta motel approximately twelve hours after the Walgreens robbery. The La Quinta videotape shows an individual similar in appearance to Jenkins and wearing a white "do-rag." The robber in the Walgreens videotape also wore a white "do-rag." Jenkins argues the person who robbed the La Quinta also robbed the Walgreens, and that the La Quinta videotape was admissible to allow the jury to review the similarities between the perpetrators of the two robberies. Jenkins also argues the La Quinta videotape corroborates his girlfriend's and his mother's testimony that he was not the person in the Walgreens videotape. The state objected on relevance and prejudice grounds, asserting the tape might confuse the jury. See Tex. R. Evid. 403. The trial court sustained the objection. The decision to admit or exclude evidence is a matter falling within the trial court's discretion. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994); Jones v. State, 111 S.W.3d 600, 606 (Tex.App.-Dallas 2003, pet. ref'd). We review for an abuse of that discretion and as long as the trial court's ruling was within the "zone of reasonable disagreement," there is no abuse of discretion and we will uphold the trial court's ruling. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). We conclude that although there were some similarities between the persons shown in the videotapes of the two robberies, they were not so similar that the trial court's ruling, sustaining the state's objections and excluding the La Quinta videotape, falls outside the "zone of reasonable disagreement." See id. The trial court did not abuse its discretion in refusing to admit the video of the La Quinta robbery as evidence in the trial of the Walgreens robbery. We overrule Jenkins's third point of error. We affirm the judgment of the trial court.