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OSEI v. STATE

Court of Appeals of Texas, Fifth District, Dallas
Aug 24, 2004
Nos. 05-03-01427-CR, 05-03-01428-CR (Tex. App. Aug. 24, 2004)

Opinion

Nos. 05-03-01427-CR, 05-03-01428-CR

Opinion issued August 24, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-15897-Lm F03-48343-IM. Affirmed.

Before Chief Justice THOMAS and Justices WRIGHT and LAGARDE.

The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.


OPINION


Appellant Michael Osei appeals both the revocation of his community supervision in a forgery case and his aggravated robbery conviction for which he was sentenced to fifty years' imprisonment. In the aggravated robbery appeal appellant raises only one issue: factual sufficiency of the evidence. In the revocation appeal, appellant contends that inasmuch as the revocation was based on his aggravated robbery conviction, and the evidence in that case was factually insufficient, the trial court erred in revoking his community supervision in the forgery case. Having reviewed the record in each case, we disagree. Consequently, we affirm each judgment.

Appellate case number 05-03-01427-CR (trial court number F02-15897-LM) is the probation revocation case and appellate case number 05-03-01428-CR (trial court number F03-48343-IM) is the aggravated robbery case.

Of course the standard of proof in a probation revocation is preponderance of the evidence, not beyond a reasonable doubt.

Procedural Background

In July of 2002 appellant passed a forged instrument. On December 19, 2002, without the benefit of a plea bargain, appellant pleaded guilty to forgery, and also pleaded true to one enhancement paragraph alleging a prior conviction of aggravated assault with a deadly weapon. The trial court assessed appellant's punishment at a $2500 fine and two years' confinement; however, the court suspended imposition of sentence and placed appellant on community supervision for five years. On May 12, 2003, the State filed a motion to revoke alleging that on or about February 5, 2003, by committing the offense of aggravated robbery, appellant violated the terms of his community supervision. On September 3, 2003, a jury found appellant guilty of aggravated robbery and, the next day after hearing punishment evidence, assessed appellant's punishment at fifty years' imprisonment. Thereafter, a hearing was held before the trial court on the State's motion to revoke. Appellant waived reading of the motion to revoke and pleaded not true to the allegations contained therein. Upon request, the trial court took judicial notice of the plea proceedings in the forgery case and all the evidence in the aggravated robbery case. Appellant also testified at the revocation hearing. Finding the allegations in the State's motion to be true, the trial court granted the State's motion, revoked appellant's community supervision, and assessed appellant's punishment at two years' confinement in the Institutional Division of the Texas Department of Criminal Justice.

Aggravated Robbery

The following evidence was presented during appellant's aggravated robbery trial. Jamie Reynolds testified she was working in her father's convenience store on the evening of February 5, 2003. For protection, her father kept guns in the store on a shelf below the cash register. Around 9:30 p.m., two dark-complected men wearing blue surgical masks came into the store. The taller of the two men had a shotgun, was wearing black, and demanded that everybody, including two customers, "get down." Fearing that if she "got down" and was not within their sight the robbers might think she was up to something, Jamie remained standing. When she did not comply with his demand, the masked man with the shotgun said, "bitch, didn't you hear me say everybody get down." When Jamie tried to explain why she did not comply, a third man "came out of virtually nowhere." He was wearing a red shirt but no mask, he was lighter in complexion than the other two men, and he was later identified as Badel Smith. Smith came to Jamie's side and demanded, "bitch, didn't you just hear him tell you to get down?" He then fired his gun. Fearing she would be shot, Jamie complied with his demand From her position on the floor, Jamie could see the robbers' reflections. The shorter masked man joined Smith behind the counter and asked where the safe was. Jamie explained the store no longer had a safe; all the money was now in the cash register. Smith asked how to open the cash register. The robbers joked about Jamie being so scared that she was shaking. Two of the men left. The shorter masked man remained in the store and ordered everyone to a back room. As he left, he shut the door. When Jamie heard a shot fired outside and realized the robbers were gone, she ran to the cash register and got a gun. Later that evening, Smith was taken back to the scene of the offense and Jamie identified him as one of the robbers. Although Jamie had never been asked to identify appellant before, at trial she identified him as one of the two masked men. She also recognized him as having been a customer in the store some two weeks earlier. Jamie identified appellant based on his dark complexion, distinctive small eyes, facial structure, and the "nice arch in his eyebrows." Jamie testified that she did not give appellant permission to take either money or property from the store. Rodney Allen, who had previously been convicted for both possession and delivery of drugs, witnessed events immediately following the robbery. Allen was sitting in his car in a nearby church parking lot when he saw police cars in the area. As he was about to leave, he saw one of the squad cars suddenly stop and back up as it neared the store. An officer jumped out of the car and began to run down a trail leading to some apartments. When a man came out of the store, the officer stopped and pursued the man instead. The man was wearing jeans, a gray or white shirt and a jacket. The man ran toward the bus stop with the officer in pursuit. While the officer was holstering his pistol, the man turned and shot at the officer. Although Allen did not see the man fire, he saw fire coming from the man's direction. Allen heard the officer exclaim, "He just shot at me." Allen watched the chase continue until the man stopped and got down on the ground when he was finally cornered by two squad cars. Allen could clearly see the events because the officer was chasing the man toward his car. Allen estimated the chase lasted about ten minutes. Dallas police officer Darian Loera was on routine patrol in a marked squad car with his partner, Jacob White, on the date of the offense when he saw two black males coming out of a convenience store. One of the men was attempting to hide a shotgun inside his jacket. The other man wore a red shirt. Loera told his partner to stop. Loera got out, identified himself as a police officer and told the men to stop. They didn't. Instead, they ran toward the back of the store and kept running. As Loera was running after the two men, he saw a third man, later identified as appellant, come out of the store. Loera identified himself and told appellant to stop. Instead, appellant ran. Loera chased him holding a gun in his right hand and a flashlight in his left hand Loera could not see that appellant had a gun because appellant's back was to him. As Loera was holstering his gun, he looked up and saw appellant fire a pistol at him from about fifteen yards away. Appellant was in the light when he turned to fire at Loera. The police later recovered a casing from near the front of the bus stop. When appellant fired, his arm was fully extended and pointed at Loera; appellant was not trying to put the pistol in his pocket. Loera did not return fire out of concern for surrounding residences and innocent bystanders. Loera continued to chase appellant. When appellant ran into a church parking lot, Loera momentarily lost sight of him. Appellant was wearing a leather jacket, a white T-shirt and no mask, but Loera never saw appellant's face. Loera later heard a "robbery in progress" call over the police radio, so he went to the convenience store to see if there might still be other robbers inside. There, Jamie told him she had been robbed but all the robbers had left. Loera denied threatening appellant with filing an aggravated assault on a police officer or capital murder charge on him if he did not identify the other two men. In the meantime, another two officers arrived, Officers John Sanchez and Mario Gomez. Gomez joined in the foot chase and Sanchez joined White in the automobile chase. Sanchez and White ultimately cornered appellant with their squad cars and appellant surrendered. A canine officer and his dog engaged in a foot chase with one of the other suspects. That chase led to an apartment in the Carpenter Cove Apartments. By the time Loera got to the apartment, the suspects were gone, having broken a bedroom window to escape. The apartment was searched and certain items of evidence were retrieved, including a jacket with Snickers candy bars in the pocket (stolen from the convenience store), a mask, and a shotgun. Appellant's car was parked on the street near the apartments where the evidence was recovered. Dallas police officer Jacob White was Loera's partner on the night of the offense and was driving the squad car when Loera told him to stop. He stopped and Loera got out and ordered the suspects to stop. When they did not stop, White requested additional officers on the scene. He saw appellant run down the street, turn, and fire at Loera. White saw a "muzzle flash" about four or five feet off the ground. White drove around setting up a perimeter. Because of a barrier, White could not follow appellant through the church parking lot. As White was following appellant in the squad car, at one point he saw him gesture as if he were throwing something over the fence. Sanchez, who had arrived on the scene within about a minute and joined in the automobile chase, cornered appellant with his squad car; White and Sanchez arrested appellant without a struggle. No weapons were found on appellant. On the way back to the store, White found a pistol in the street. When appellant was booked into jail, he said he lived in Garland, a city approximately nineteen miles from the location of the offense. Smith was arrested about one-half mile away from the scene of the offense and Jamie identified him at the scene as one of the robbers. The third suspect with the shotgun had not been arrested at the time of trial. Dallas police officer John Sanchez testified when he and Gomez arrived, Loera told him a suspect had fired at him. Gomez got out and assisted in the foot chase. Sanchez and White arrested appellant. When Sanchez drove up, appellant stopped, put his hands up, and complied with the officer's demands to get on the ground. Appellant also cooperated in giving them personal information. Sanchez found a blue mask in the alley. Dallas police officer Marshall McLemore was the officer who transported appellant to the police station. Appellant was placed in the front passenger seat of his squad car. As McLemore was driving back to the store, appellant volunteered that his car was parked on the street near the Carpenter Cove Apartments and asked the officer to check to see if the other suspects had taken it. The car, which was registered in appellant's name, was found on the street near the apartments. Dallas police officer Dan Krieter was assigned to the crime scene response unit and processed and photographed the scene of the robbery. Krieter was able to lift fingerprints from some items but they were not appellant's prints. He did not attempt to retrieve fingerprints from the gun or casing because they had been out in the rain. Krieter recovered a 9mm pistol with one live round in the chamber and nine live rounds in the magazine, a 12-gauge shotgun loaded with three shells, a blue mask from the alley, a Swisher Sweets box, a Phillies Blunt box, and a red cap. He also recovered some bullet fragments near the cash register. Heather Thomas, a firearms expert from the Southwestern Institute of Forensic Sciences (SWIFS), testified she tested certain evidence in the case. She determined the two fired casings were fired from the 9mm pistol. She also performed a "drop test" on the gun and was unable to get it to fire accidentally. She determined that the gun would only fire by pulling the trigger with a pressure of nine-and-a-half to ten pounds. Thomas did not examine the gun to see if it had been fired prior to her testing it nor did she make any notes about any residue on the barrel.

Factual Insufficiency

The factual sufficiency standard of review for appellate courts was first established in Clewis v. State, 922 S.W.2d 126 (Tex.Crim. App. 1996). Clewis requires an appellate court to review all of the evidence neutrally without the prism of "the light most favorable to the prosecution." Id. at 129. Since Clewis, the court of criminal appeals has attempted to clarify or modify the Clewis standard in a number of opinions, including Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997), Johnson v. State, 23 S.W.3d 1, 6-7 (Tex.Crim.App. 2000), Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Crim.App. 2001), and Zuliani v. State, 97 S.W.3d 589, 593-95 (Tex.Crim.App. 2003). According to its latest pronouncement, the court of criminal appeals has held that an appellate court must analyze all of the evidence in a neutral light in determining the ultimate issue: whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). It is the jury's duty to resolve conflicts in the evidence and to decide the weight and credibility of the evidence. See Cain, 958 S.W.2d at 408. When the evidence is conflicting, the jury's verdict is generally regarded as conclusive. See id. at 410. A jury's verdict is not manifestly unjust or clearly wrong merely because the jury resolved conflicting views of the evidence in favor of the State. See id. Appellant argues the evidence is factually insufficient because it did not establish beyond a reasonable doubt his identity as one of the robbers. In support of his argument, he points to the following facts: Loera could not see his face; Jamie did not identify him at the scene; appellant's fingerprints were not found on the recovered items; and Jamie's description of the shorter masked robber as wearing "all black" conflicts with the description given by other witnesses that he was wearing a white T-shirt, jeans, and a jacket. Appellant contends the proof of guilt is so obviously weak as to undermine confidence in the jury's determination and, further, is greatly outweighed by contrary proof. The State responds that the evidence is factually sufficient because appellant was unequivocally identified as one of the robbers by Jamie in court. Jamie testified she was "looking at the exact same eyes [she] looked at that night." Appellant was seen by a police officer coming out of the store just after the robbery, and he was identified by the officers as the man they chased and arrested that night. Jamie did testify appellant was wearing black during the robbery, although she could not remember if it was a jacket or sweat shirt. Officers Loera and Sanchez stated appellant was wearing a black leather jacket. Having reviewed all the evidence in a neutral light, and mindful of the State's burden of proof-"beyond a reasonable doubt"-as set out in Zuniga, we conclude the evidence is factually sufficient to support appellant's aggravated robbery conviction.

Revocation of Community Supervision

Appellant contends that because his community supervision was revoked based on the same factually insufficient evidence presented in the aggravated robbery case, the trial court abused its discretion in revoking his community supervision. Having found the evidence in the aggravated robbery case factually sufficient beyond a reasonable doubt, it goes without saying the trial court did not abuse its discretion in revoking appellant's community supervision in the forgery case based on a preponderance of the evidence presented in appellant's aggravated robbery case. Consequently, we affirm both judgments.


Summaries of

OSEI v. STATE

Court of Appeals of Texas, Fifth District, Dallas
Aug 24, 2004
Nos. 05-03-01427-CR, 05-03-01428-CR (Tex. App. Aug. 24, 2004)
Case details for

OSEI v. STATE

Case Details

Full title:MICHAEL A. OSEI, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 24, 2004

Citations

Nos. 05-03-01427-CR, 05-03-01428-CR (Tex. App. Aug. 24, 2004)