Opinion
No. 10-05-00370-CR
Opinion delivered and filed November 1, 2006. DO NOT PUBLISH.
Appeal from the 40th District Court, Ellis County, Texas, Trial Court No. 24407CR. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Mackey appeals his convictions for aggravated robbery. See TEX. PENAL CODE ANN. § 29.03(a) (Vernon 2003). We affirm. In one issue, Mackey contends that the evidence of his identity was legally and factually insufficient. Legal Sufficiency. "When deciding whether evidence is [legally] sufficient to support a conviction, a reviewing court must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt." Evans v. State, No. PD-1911-05, 2006 Tex. Crim. App. LEXIS 1815, at *6 (Tex.Crim.App. Sept. 20, 2006) (quoting Evans v. State, 185 S.W.3d 37, 37 (Tex.App.-San Antonio 2005), rev'd on other grounds, Evans, 2006 Tex. Crim. App. LEXIS 1815); accord Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App. 2005); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). Mackey argues that the identification of Mackey by the two victims was "never unequivocal." (Br. at 10.) Mackey concedes that one of the victims identified him in both photograph and live lineups. Mackey also points to three other witnesses who identified him, by gender, race, height, weight, tattoos, and complexion. The State points to evidence that the victim who identified Mackey in the lineups also identified him at trial; that the other victim testified that Mackey's tattoo matched the robber's; and that one of the eyewitnesses testified that she was "99 percent sure" in her identification of Mackey, (3 R.R. 128). Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that Mackey committed the robbery. The evidence of Mackey's identity was legally sufficient. Factual Sufficiency. "In a factual-sufficiency analysis, the evidence is viewed in a neutral light." Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005) (citing Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996)); accord Watson v. State, No. PD-469-05, 2006 Tex. Crim. App. LEXIS 2040, at *31 (Tex.Crim.App. Oct. 18, 2006). The court of appeals must "exercise appropriate deference in order to avoid substituting its judgment for that of the jury, particularly in matters of credibility." Drichas at 799 (citing Clewis at 133); see Watson at *34-*38. There are two ways in which a court may find the evidence to be factually insufficient: the evidence supporting the finding, considered alone, is too weak to support the jury's finding beyond a reasonable doubt; or the contravening evidence is so strong that the state could not have met its burden of proof. Drichas at 799; Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2004). "[A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial." Watson at *39. Mackey contends that the verdict "is so contrary to the overwhelming weight of the evidence as to be factually wrong." (Br. at 14.) Mackey argues that one victim was able to identify Mackey only by Mackey's tattoo, that the other victim did not identify Mackey in a photograph lineup and did not mention that Mackey had gold teeth, and that one eyewitness did not identify Mackey in a photograph lineup. The State points out that though Mackey's mother testified that he had gold teeth, when Mackey displayed his teeth to one victim at trial, the victim testified that Mackey's teeth appeared silver but resembled the robber's; and that one witness testified that she said she could not identify Mackey in the live lineup because she was afraid of Mackey, (3 R.R. 59). Viewing the evidence in a neutral light, we hold that the evidence to which Mackey points is not so strong that the State could not have proved his identity beyond a reasonable doubt. The evidence of Mackey's identity was factually sufficient. Having found the evidence legally and factually sufficient, we overrule Mackey's issue. Having overruled Mackey's sole issue, we affirm.