No. 04-03-00262-CR.
Delivered and Filed: March 3, 2004. DO NOT PUBLISH.
Appeal from the 232nd Judicial District Court, Harris County, Texas, Trial Court No. 890142, Honorable Mary Lou Keel, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
Opinion by: SANDEE BRYAN MARION, Justice.
A jury found defendant, Elmo Jones, guilty of aggravated robbery and pursuant to an agreement between defendant and the State, the trial court sentenced defendant to forty-five years' confinement. Defendant challenges the factually sufficiency of the evidence supporting his conviction. We affirm.
BACKGROUND
Henry Rice lived in a three-story townhouse with his partner Mark Howard. On October 5, 2001, Rice's son Bill and his family were in town visiting. When the individuals retired for the night, Rice and Howard to the third floor, and Bill and his family to the guest bedroom, they inadvertently left the garage door open. Rice awoke at 7:00 a.m. the next morning and went to the master bathroom. A few minutes later, Howard woke up and saw a man, later identified as defendant, standing in the bedroom holding a screwdriver, telephone cord, and a handkerchief. Defendant wore a denim fishing hat, several layers of shirts, the most underneath layer consisting of a polo style shirt with a baby blue collar, and a pair of shorts. After hearing some voices in the bedroom, Rice came out from the master bathroom and found defendant talking with Howard. Defendant stated that he was only there for their money and credit cards. Already having Howard's wallet, defendant demanded Rice give him his wallet. Rice complied and defendant took Rice's automatic teller machine (ATM) card from his wallet and wiped it down with the handkerchief to eliminate any fingerprints. Before leaving, defendant stated that "he had better not see any police out front for ten minutes or he would be back, and there would be trouble." After defendant left the house, Rice woke up his son Bill and informed him of what had just occurred. Bill proceeded to check the rest of the house for defendant and Rice called 9-1-1. Rice handed the phone to Howard and while he talked with the 9-1-1 operator, Rice and Bill proceeded to get into Bill's vehicle and start searching the streets for defendant. Rice suspected defendant would head to the closest bank where he could access Rice's bank account. A few minutes after they had begun their search, Rice stated he thought he saw defendant walking in a nearby parking lot. When Bill turned the vehicle around to get a closer look, Rice noticed that defendant had shed his outer layer of shirts, wearing only the polo shirt with the baby blue collar. However, upon a closer inspection of defendant's features and build, Rice stated "that's him." When Rice and Bill drove closer, defendant shook his fist at them. Bill pulled into the parking lot and Rice got out of the vehicle to confront defendant. Defendant stated, "you'd better get out of here. I have friends in the neighborhood." He also stated, "I told you not to follow me." When Bill exited the vehicle, defendant ran across the street. Bill chased defendant across the street, tackled him, and detained him until the police arrived. When the police arrived, and after hearing what had occurred, they arrested defendant. While the police did not find any stolen property on defendant, they found, among other items, a denim fishing hat in his back pocket. Subsequent searches in the neighborhood that afternoon by police, Rice, Howard, and Bill revealed only the screwdriver and the telephone cord. On the same evening, police asked Rice, Howard, and Bill to come down to the police station to view a line-up. During the line-up defendant did not wear the same clothing as when the police arrested him. However, Rice and Howard, separately and individually, immediately identified defendant as the man who robbed them earlier that morning. Bill also immediately identified defendant as the man he helped apprehend in the parking lot that morning. The jury ultimately found defendant guilty of aggravated robbery. SUFFICIENCY OF THE EVIDENCE
In a single issue on appeal, defendant asserts the evidence is factually insufficient to support his conviction. Defendant contends the eye witness testimony of both Rice and Howard and the other evidence produced by the State are insufficient when compared to the contrary evidence in the case. When reviewing the factual sufficiency of the evidence, we view all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to make it clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must defer to the factfinder, and may find the evidence factually insufficient only where necessary to prevent manifest injustice. See Cain, 958 S.W.2d at 407. The trier of fact may draw reasonable inferences and is the exclusive judge of the witnesses' credibility and the weight to give their testimony. Jones v. State, 944 S.W.2d 642, 647-49 (Tex.Crim. App. 1996). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). During trial, the State called Rice and Howard to testify. They testified that they based their identification of defendant during the lineup on the fifteen to twenty minutes they had to view defendant in the bedroom. Both testified they could immediately identify defendant and had no doubt during the lineup that he was the man who committed the robbery. The State also presented Bill's testimony to describe defendant's actions and statements when both he and Rice confronted defendant in the parking lot. Bill testified that he saw defendant shake his fist at them when they approached in his vehicle and that he overheard defendant state, "I told you not to follow me." While the State could not produce either the extra layers of shirts defendant shed or any of the stolen items, the State produced the denim fishing hat defendant wore during the robbery. The State argued that the fishing hat was one of the key identifying pieces of clothing both Rice and Howard used to describe defendant to the police officers. Further, the State argued the fishing hat was the one distinguishing piece of clothing defendant forgot to shed. The State explained to the jury through the testimony of several police officers that wearing several layers of clothing was common for criminals and that the police frequently encounter cases where they are not able to find either the shed clothing or the stolen items. Defendant argued that the State's story did not match up, specifically pointing out that when Rice approached him, he told Rice that he had not robbed them, but instead that his car had broken down and he was walking to use a nearby telephone. Defendant also argued that neither Bill nor Rice could testify whether they noticed defendant sweating when they confronted him. In addition, defendant challenged the identifications made by all three of the witnesses. Defendant contends Rice identified him during the line-up based on the altercation among the three of them earlier in the morning instead of his observations during the robbery. Defendant argues that Howard could not make a proper identification of defendant because the lighting was too low in the bedroom that morning and Bill's identification in no way ties defendant to the robbery. Although defendant argued these were insufficient to identify him as the person who committed the robbery, the jury as sole fact-finder could believe some or all of the witnesses' testimony and reject any contradictory testimony. Cain, 958 S.W.2d at 408-09. In conjunction with the identifications and the other evidence the State brought forward during trial as stated above, we do not believe the jury's verdict is so contrary to the overwhelming weight of the evidence so as to make it clearly wrong and unjust. Therefore, we conclude the evidence is factually sufficient to support defendant's conviction. CONCLUSION
We overrule defendant's issue on appeal and affirm the trial court's judgment.