From Casetext: Smarter Legal Research

Jones v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 21, 2017
No. 05-16-01107-CR (Tex. App. Jun. 21, 2017)

Opinion

No. 05-16-01107-CR No. 05-16-01108-CR

06-21-2017

CIONE DEFELIOUS JONES, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the Criminal District Court No. 4 Dallas County, Texas
Trial Court Cause No. F-1424469-K

MEMORANDUM OPINION

Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Boatright

Appellant was charged with the aggravated robbery of Kayla Becerra and Daniel Guardado. A jury found him guilty, and the trial court assessed his punishment at ten years' imprisonment for each offense. Appellant challenges the sufficiency of the evidence supporting his convictions, and he contends the trial court erred by admitting (a) photo arrays the police showed the complainants for identification purposes and (b) appellant's own statement to the police. We affirm the trial court's judgments.

Background

A group of four or five men wearing bandannas over their faces entered the complainants' apartment, held the complainants at gunpoint, and stole personal property from them. The complainants identified appellant as one of the robbers. Appellant concedes he was present when the robbery took place, but he contends he stood outside the apartment and refused to participate in the robbery. Indeed, appellant contends he attempted to dissuade his friends from robbing the complainants.

Sufficiency of the Evidence

Appellant contends the evidence is legally insufficient to support his convictions for aggravated robbery. The State was required to prove that appellant intentionally and knowingly, while in the course of committing theft of property and with the intent to obtain or maintain control of the property, threatened and placed the complainants in fear of imminent bodily injury and death and that appellant used or exhibited a deadly weapon. TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). There is no question that the complainants were subjected to conduct amounting to aggravated robbery. Appellant argues, however, that the State failed to prove beyond a reasonable doubt that he was the robber whose conduct was described by the complainants. We review a sufficiency challenge by examining the evidence in the light most favorable to the prosecution to determine whether rational jurors could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury exclusively determines the credibility of the witnesses and the weight to be given their testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).

Becerra testified that the men entered the apartment as she was getting out of the shower, and they began searching the apartment for drugs and money. Initially, Becerra was kept in the bedroom, where she was subjected to indignities including being "smacked on [her] butt." Subsequently, she was ordered out to the living room, and then later back to the bedroom. Becerra testified that while in the bedroom the second time, she was alone with appellant. She said appellant told her if she said anything to anyone, he would find her, and he asked her why she wanted to be with someone like Guardado. He held a gun while he spoke to her, and his mouth and nose were covered by a bandana. But during that time, she was able to "look him in the face," giving her "the clearest view of anyone" she had that night. She remembered his eyes, especially that they were "very little." She also observed his complexion, eyebrows, hair and hairline, and build. And when the police later showed Becerra a six-picture photo array, she selected a photo of a man she believed—to a fifty-percent certainty—was the man she was alone with in the bedroom that night; the photo she selected was a picture of appellant. At trial, Becerra identified appellant as the man whose photograph she had selected from the array, by then with one-hundred-percent certainty.

Appellant has challenged the admissibility of the photo array, which was also shown to Guardado. Appellant has also challenged the admissibility of his statement to the police. We address both of those issues below, but in a legal sufficiency review, we consider all evidence in the record of the trial, whether it was admissible or inadmissible. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

Guardado testified that he was brought into the bedroom at the time the man was asking Becerra about being with him. He got a "quick glimpse" of the man and then looked down and noticed a scroll-like tattoo on the man's forearm. The State offered a photograph of appellant exhibiting a scroll tattoo, albeit on appellant's upper arm. When the police showed Guardado the photo array, he picked out two pictures, believing they were two different men in the apartment that night; again, one of the photos was of appellant, and Guardado believed—to an eighty-percent certainty—that he was the man standing with Becerra in the bedroom.

The jury heard appellant's version of the robbery through his videotaped statement to police. The video was offered and admitted, along with a transcript of the interview, through Detective Carl King, who conducted the interview and was the lead detective on the case. In his statement, appellant explained he had accompanied three friends and one man he did not know to the complainants' apartment so one of his friends could get some weed. He stayed in the car for a period of time and then went to the apartment door. From the doorway, he saw his friends searching the apartment and saw Becerra subjected to what he called "foul" conduct, including being "smacked on her butt" in the living room. Appellant insisted in the statement that he took no more than one brief step inside the apartment and then retreated, because he did not "condone" the conduct he witnessed. Appellant stated that—as he stood in the doorway of the apartment—he tried to talk his friends out of what they were doing and, when they left the apartment, he had them drive him straight home. But both complainants testified that no one stood in the doorway during the incident and no one spoke out against the robbery or the abuse of Becerra. And both complainants testified to the layout of the apartment, confirming that someone standing at the doorway could not have observed the things appellant described to the police in his statement.

Credibility issues are for the jury. Wise, 364 S.W.3d at 903. The jury in this case could have believed the testimony of the complainants that appellant was an active participant in the robbery and disbelieved appellant's version of the events. Viewed in the light most favorable to the prosecution, rational jurors could have found beyond a reasonable doubt that appellant participated fully in the robbery.

We overrule appellant's third issue.

Admissibility of Photo Arrays

Appellant argues the trial court erred reversibly by admitting the photo arrays that formed the basis of the complainants' identification of appellant as one of the robbers. He contends the two identical arrays were suggestive, making the complainants' identifications unreliable. "Reliability is the linchpin in determining the admissibility of identification testimony." Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008). An identification is admissible if the indications of its reliability outweigh its suggestiveness. Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim. App. 1995). But we will not reverse a conviction unless the appellant establishes by clear and convincing evidence that the identification was "irreparably tainted." Id.

The State argues appellant failed to preserve this issue for our review. In the trial court, appellant objected that both arrays would be confusing to the jury. As to Becerra's identification, appellant objected further that her selection of appellant's photograph with only a fifty-percent certainty "[doesn't] qualif[y] as a sufficient identification" and is not relevant. And as to Guardado's selection of appellant's photograph, appellant objected the identification was "flawed in the designation of this individual." The State reduces this objection to reliance on the relevance rules of evidence, but appellant also objected to insufficient reliability of the identifications given the selection of more than one photo and the less-than-certain selections.

However, even if we were to conclude the objections to the array were preserved and the identifications were admitted in error, we would conclude appellant was not harmed. See TEX. R. APP. P. 44.2(b) (errors that do not affect substantial rights must be disregarded). Appellant acknowledges he arrived at the apartment with his friends and that he was present during the robbery. The complainants did not merely identify appellant, they also testified that all five of the men present participated in the robbery and that no one stood in the doorway or attempted to stop the other participants from robbing them. Thus, even absent the identifications, the complainants' testimony and appellant's own statement were sufficient to support his conviction as a party to the robbery.

We overrule appellant's first issue.

Admissibility of Appellant's Statement to Police

Appellant also contends the trial court erred by admitting his statement to police in both video and transcript forms. In the statement, Detective King repeated allegations by one of the robbers, Jeremy Jones, that appellant was present and was involved in the robbery and in touching Becerra. Appellant contends the statement contained inadmissible hearsay and violated his rights under the Confrontation Clause of the United States Constitution. We review the trial court's decision to admit the statement for an abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).

At the outset, we determine appellant has not preserved a Confrontation Clause objection. A bare reference to lack of cross-examination in the midst of a hearsay objection is insufficient to point the judge to a sixth amendment violation. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). Lack of opportunity for cross-examination lies at the heart of the rules against hearsay as well. See, e.g., Barber v. State, 481 S.W.2d 812, 814 (Tex. Crim. App. 1972) ("One reason for the rule excluding hearsay is that the jury should be allowed to judge the demeanor of the witness on the stand, both during his direct testimony and during cross-examination, in order to effectively determine his credibility."). We understand the thrust of appellant's objection to be the inclusion of allegations against him that were purportedly made by Jeremy Jones and were repeated by King during the latter's questioning. That is a hearsay complaint.

To avoid confusion with identical surnames, we will refer to Jeremy Jones as "Jeremy."

We conclude appellant's hearsay objection, although preserved, lacks merit. Jeremy's allegations within appellant's statement were not offered for the truth of what Jeremy purportedly told King. On the contrary, the allegations attributed to Jeremy formed an integral part of the robbery investigation and explained how the police had come to ask appellant to give a statement. Police officers may testify to explain how an investigation began and how a defendant became a suspect. Lee v. State, 29 S.W.3d 570, 577-78 (Tex. App.—Dallas 2000, no pet.). In this case, King testified that he began to develop persons of interest after his interview with Jeremy. He testified further that Jeremy's interview led him to put the photograph of appellant in the complainants' arrays and, after the photo identifications, to invite appellant for an interview. This testimony was admitted without objection. Jeremy's allegations then served as King's framework for questions to appellant; as a result, the statement contains references to what Jeremy purportedly told the detective. The references give necessary context to appellant's answers. See Kirk v. State, 199 S.W.3d 467, 479 (Tex. App.—Fort Worth 2006, pet. ref'd) (statements challenged as hearsay were questions by detective, admitted to give context to defendant's replies, and were not offered for truth of matters asserted). Because Jeremy's allegations were not offered to prove the truth of the matters he asserted, the trial court did not abuse its discretion in admitting appellant's statement.

We overrule appellant's second issue.

Conclusion

We have decided each of appellant's issues against him. We affirm the trial court's judgments.

/Jason Boatright/

JASON BOATRIGHT

JUSTICE Do Not Publish
TEX. R. APP. P. 47 161107F.U05

JUDGMENT

On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. F-1424469-K.
Opinion delivered by Justice Boatright. Justices Fillmore and Whitehill participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 21st day of June, 2017.

JUDGMENT

On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. F-1600384-K.
Opinion delivered by Justice Boatright. Justices Fillmore and Whitehill participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 21st day of June, 2017.


Summaries of

Jones v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 21, 2017
No. 05-16-01107-CR (Tex. App. Jun. 21, 2017)
Case details for

Jones v. State

Case Details

Full title:CIONE DEFELIOUS JONES, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jun 21, 2017

Citations

No. 05-16-01107-CR (Tex. App. Jun. 21, 2017)