No. 05-02-01732-CR
Opinion Filed October 23, 2003. Do Not Publish Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-49454-UW AFFIRM
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
CAROLYN WRIGHT JUSTICE
A jury convicted Dorsett Polk a/k/a Tony Blaylock of aggravated robbery and assessed punishment at twenty years' confinement. By its verdict, the jury made an affirmative finding that appellant used or exhibited a deadly weapon, a knife, during the commission of the offense. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
On March 27, 2002, Jose Hernandez was robbed at knife point as he sat in the driver's seat of his vehicle. Hernandez testified that as he got into his 1997 Dodge Neon after purchasing a drink from a convenience store around 8:30 p.m., two men appeared at his side. Hernandez had not had a chance to close the driver's side door and still had the keys in his hand. The men asked Hernandez for a ride, then asked for money. Hernandez testified appellant was the man standing closest to him, and appellant was wearing "black pants and a black sweater with a hood." The second man wore a "red dress shirt and jeans." After Hernandez gave appellant some change, appellant punched Hernandez in the face and continued to beat him. The man wearing the red shirt placed a knife against Hernandez's stomach and told Hernandez to give him the keys and his wallet. Appellant bit Hernandez's hand to get the keys, ripped Hernandez's pants when he snatched Hernandez's wallet, and took Hernandez out of the vehicle. The man wearing the red shirt got into the passenger seat and appellant jumped in the driver's seat and sped away. Hernandez testified he identified a photograph of appellant from a photographic lineup two days later as the man who beat him and drove his vehicle away. The man wearing the red shirt was never caught. Dallas police officer Jose Aranda testified he was dispatched to the robbery scene at about 8:40 p.m. Hernandez had blood on his face and hands, and his pants were torn. Aranda testified Hernandez described the two men who stole his vehicle and wallet as "two black men," with suspect number one, the man who beat Hernandez, wearing "a black hooded sweatshirt and blue jeans," and suspect number two, the man who held a knife against Hernandez's stomach, wearing "a long-sleeved red shirt and blue jeans." Aranda broadcast the descriptions of the suspects and the vehicle to other officers, then canvassed the neighborhood for the suspects. Dallas police officer Chris Lezotte testified he began his shift at 11:00 p.m. and received an alert about the robbery suspects and the stolen vehicle. Lezotte testified the descriptions stated one suspect was wearing "black pants and black hooded sweatshirt" and the other suspect was wearing "jeans and long-sleeved red shirt." Lezotte saw the vehicle and suspects at a gas station in the 3500 block of Linfield Road at 1:24 a.m. on March 28, 2002. Lezotte identified appellant as the man he saw wearing a "black hooded sweater-type shirt and black pants." A man with appellant wore a long-sleeved red shirt. Lezotte saw appellant and the other man get into the vehicle and drive away. Appellant was in the driver's seat. Lezotte followed appellant for about one mile before other officers and a police helicopter joined him. When Lezotte activated his siren and flashing lights to pull appellant over, appellant accelerated at high speed. After a few minutes, appellant stopped the vehicle and the man wearing a red shirt jumped from the car. Appellant sped away and Lawsuit followed appellant. Other officers chased the second suspect on foot, but they never caught him. Lawsuit testified officers chased appellant for fifty minutes, then appellant finally came to a stop on U.S. 75 in Grayson County when the vehicle ran out of gas. Lezotte testified appellant was the only person in the vehicle, and when he searched appellant, he found that appellant was wearing black "parachute-type pants, a black hooded sweater-type sweatshirt, and a gray shirt underneath." Lezotte further testified he did not find a weapon or wallet on appellant's person or in the vehicle. Dallas police officer Archie Beason testified he was at the scene when appellant's vehicle ran out of gas. Appellant was the only person in the vehicle, and he was wearing a "black hooded sweater top and black parachute pants." When appellant was transported to jail, Beason sat in the back seat of the patrol car next to appellant. Beason testified appellant stated he should have "hurt the guy more that he took the vehicle from," and appellant stated he "should have crashed into a truck and killed himself." At the jail, Beason saw appellant take off the black hooded sweater and saw that appellant was wearing a gray shirt underneath. Daneen Berry testified she and appellant had a two-year-old son together and they had lived as common-law husband and wife for a short time. Berry testified appellant came to her house sometime between 1:00 and 3:00 p.m. on March 27, 2002 and stayed until 9:00 p.m. She and appellant watched television, ate, and talked all evening. Berry testified appellant left her house at approximately 9:00 p.m. because she was going to go out with friends that night. After appellant left, her friends picked her up at 9:20 p.m. Appellant testified he went to Berry's house at 1:00 p.m. and left after 9:00 p.m. Appellant claimed he did not leave until after Berry had already gone out with her friends. Appellant took a train to his home in Oak Cliff, arriving about 10:15 p.m. Appellant walked across the street from his house to purchase wine from a "bootlegger." After he purchased the wine and walked down the street, appellant saw two men in a 1997 Dodge Neon. The men asked appellant if he needed a ride. The driver wore a black hooded sweater, and a man in the back seat wore a red sweater. Appellant claimed the driver said he would give appellant a ride if appellant gave him gas money. Appellant agreed and got into the back seat. The driver dropped off the man who was wearing the red shirt before he went to get gas. At the station, the man wearing the black hooded sweater asked if appellant wanted to drive. Appellant got in the driver's seat and drove from the gas station. He noticed a patrol car following him and a police helicopter overhead. When police activated their sirens and flashing lights, the man wearing the black hooded sweater told appellant to run, and he directed appellant to drive to Corinth Street. Once on Corinth, appellant stopped the vehicle and the man wearing the black hooded sweater jumped out of the car. Appellant drove on until the vehicle ran out of gas. Appellant testified he fled from police because he was on probation and did not want to go to jail. Appellant denied he made any statements to police while being transported to the jail, and testified he was wearing a gray sweater and black sweatpants when arrested. Applicable Law
A person commits aggravated robbery if he intentionally or knowingly, while in the course of committing theft, causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the offense. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). A "deadly weapon" means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon 2003). The statute covers conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. See McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See Tex. Pen. Code Ann. § 7.02 (Vernon 2003). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). While the reviewing court has some authority to disregard evidence that supports the verdict, it may not substitute its own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Discussion
Appellant argues the evidence is factually insufficient because Hernandez identified him as the robber only because of appellant's race, and the description of appellant's clothing given by Hernandez and Aranda was different from the clothing appellant was wearing. Appellant argues he ran from police because he was on probation and did not want to go to jail, but the evidence shows he had an alibi for the time of the robbery. The State responds the evidence is factually sufficient to support the jury's verdict. We agree with the State. Hernandez identified appellant from a photographic lineup and in open court as the man who beat him, took the keys to his vehicle and his wallet, and drove off with the vehicle. Lezotte and Beason identified appellant as the person they saw driving Hernandez's stolen vehicle and the person who got out of the vehicle when it finally came to a stop. Hernandez testified he told police appellant was wearing a black hooded sweater and black pants; Aranda testified Hernandez stated one of the suspects was wearing a black hooded sweatshirt and blue jeans; Lezotte testified the report over the police computer stated the suspect was wearing a black hooded sweatshirt and black pants; and Lezotte also testified that when he arrested and searched appellant, he found that appellant was wearing a gray shirt underneath a black hooded sweater. Appellant testified he was wearing a gray shirt and black pants when arrested, and he never wore a black hooded sweatshirt that night. Although there were conflicts regarding the description given of appellant's clothing at the time of the robbery, it was the jury's responsibility to resolve any conflicts in the evidence. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). Having reviewed all the evidence under the appropriate standard, we conclude the evidence is factually sufficient to support the conviction. See Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.