ALEU ABRAHAM AGOK, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued December 13, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00108-CR
............................
ALEU ABRAHAM AGOK, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-69517-QW
.............................................................
OPINION
Before Chief Justice Thomas and Justices Lang and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        After finding appellant Aleu Abraham Agok guilty of robbery, the trial court assessed appellant's punishment at ten years' confinement and an $800 fine. The trial court suspended imposition of the confinement portion of appellant's sentence and placed appellant on community supervision for six years. Appellant now appeals, contending in one point of error the evidence is factually insufficient to support his conviction. We affirm.
Factual Sufficiency
        The Texas Court of Criminal Appeals has adjusted a direct appellate court's power to review the evidence for factual sufficiency “in line with civil practice.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (citing Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006)). Evidence that rationally supports a verdict of guilt beyond a reasonable doubt under the Jackson v. Virginia, 443 U.S. 307 (1979) legal sufficiency standard, can still be factually insufficient when the verdict “seems clearly wrong or manifestly unjust” or “against the great weight and preponderance of the evidence.” Id. (citing Watson, 204 S.W.3d at 414-15).
        The Court explained the standards:
 
The legal and factual sufficiency standards both require the reviewing court to consider all of the evidence. See Watson, at 414-15. The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions “albeit to a very limited degree.” See Watson, at 415, 417; see also Johnson v. State, 23 S.W.3d 1, 9 (Tex. Cr. App. 2000) (factual-sufficiency review requires reviewing court to afford “due deference” to a jury's determinations); Clewis v. State, 922 S.W.2d 126, 135 (Tex. Cr. App. 1996) (factual-sufficiency review requires “deferential standards of review applied” to jury verdicts). A factual-sufficiency review is “barely distinguishable” from a Jackson v. Virginia legal sufficiency review. See Watson, at 415-16; In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 662 (1952) (not simple to describe the intellectual process to be followed by the reviewing court “to specify just how a verdict may be supported by evidence of probative force and at the same time be on all the evidence clearly unjust”).
 
Id. (emphasis in original).
 
Background
        Appellant was indicted for robbery. The indictment reads, in relevant part, as follows:
 
 
[T]hat one AGOK, ALEU ABRAHAM, Defendant, On or about the 19th day of August A.D., 2006 in the County of Dallas and said State, did unlawfully then and there while in the course of committing theft and with the intent to obtain and maintain control of the property of JOHN MAKOR, hereinafter called complainant, the said property being A CREDIT CARD, without the effective consent of the said complainant and with intent to deprive the said complainant of said property, did then and there intentionally and knowingly cause bodily injury to said complainant, by STRIKING COMPLAINANT WITH DEFENDANT'S HAND AND BY BITING COMPLAINANT WITH DEFENDANT'S MOUTH . . . .
 
        After acknowledging to the trial court he was satisfied with his attorney, appellant waived a jury, arraignment and reading of the indictment, and stated he understood the charges against him. The following evidence was presented to the trial court.
        John Makor, the complainant, testified he worked at Parkland Hospital as a nurse's assistant. On one occasion the week before this offense occurred, Makor and appellant were both at the Carribean Club. Appellant called Makor out of the club and asked Makor for money. Makor told him he did not have money. Appellant tried to fight Makor. Security and police officers were around the club, and Makor ran back to where the police were. Appellant told Makor, “[o]kay. Now you just hide yourself there, but I will still get you.” Makor stayed where the police were. Appellant went back into the club; Makor went back into the club and met one of the security guys. Makor told him, “[l]et us stay here together.” Appellant came back “there” and tried to fight Makor. One of the Sudanese men in the club asked appellant why he just tried to fight, noting it was a public area. He said, “[t]his guy is stupid. So this guy ask me, [w]hat's wrong with this guy?” Makor told the man from Sudan appellant was drinking. The man told Makor to leave the club and he left.         On August 19, 2006, Makor thought he had a day off from work; however, his supervisor called and told Makor he was supposed to work. Makor told his supervisor he would be at the hospital in an hour. Needing gas, Makor stopped at a 7-Eleven store on Greenville Avenue to get gas. When Makor tried to put his credit card in the gas pump the machine rejected his pin number. As Makor continued trying to get the credit card pin number to go through, appellant came up to Makor and said, “John, I get you today.” Makor thought appellant said that to him because Makor had previously eluded appellant at the Carribean Club. Makor was scared and kept quiet; he said nothing. Makor was busy with his credit card. Appellant said, “[h]ey, listen to me.” Makor said, “[p]lease, just get away from me. Let me - let me do - let me fill my car with gas.” Appellant said, “[p]lease, listen to me. You don't listen to me. We'll see now.” Makor kept quiet. Appellant grabbed Makor's credit card; Makor held appellant's hand. Appellant hit Makor in the head until he fell between the car and the trunk; appellant took Makor's credit card. Makor was knocked unconscious and when he came to he tried to fight appellant to defend himself. Appellant knocked him down again and took the pump and beat Makor with the pump. Appellant also bit Makor's hand when Makor tried to push appellant off of him. Makor never gave appellant permission to beat him. Makor tried to run away, but appellant did not give him a chance. Makor just continued defending himself until the police came. The police said, “[s]top, stop.” The police arrived and took appellant away from Makor. The police asked Makor if he needed anything or did he want to leave. Makor told the police appellant had taken his credit card. The police then asked appellant where the credit card was, and he told the police the credit card “is right there.” The police retrieved the card and returned it to Makor. The credit card was not on appellant's person.
        On cross-examination, Makor testified he was from Sudan and had been in a refugee camp in Kenya for about nine years. Even though appellant was in the same refugee camp, Makor testified he did not know him there. He said he knew appellant “here.” Makor denied he ever lived with appellant. When asked if he did not tell the police back on August 19, 2006, that he did not know appellant, Makor testified, “[n]o, I told him that I know him.” Makor testified he did not know a young lady named “Alondean.”   See Footnote 2  Makor denied he was dating the same lady appellant was dating. When asked if it was not true this fight was about a young lady and not about a robbery, Makor replied, “I'm just - I don't know what he's talking about.” When asked if he and appellant were not friends, Makor replied they sometimes went to church or clubs together. However, Makor said he stopped going to clubs after appellant wanted to fight with him at the Carribean Club. When asked if he knew some of appellant's friends, Makor replied, “I know those two guys.” He did not know one of “those guys” was appellant's brother, however. Makor knew one of the “guys” was appellant's cousin, but did not know he was from Sudan. Makor testified his credit card did not fall during his fight with appellant but, rather, appellant took it when Makor tried to put it in the machine. Makor said it hurt him when appellant hit and bit him.
        Oliver Achime testified he had worked for “Dallas ISD Police Department” for seven years. On August 19, 2006, he witnessed a robbery while he was at a 7-Eleven on Greenville “trying to get water.” A customer touched Achime on the back and told him some people were fighting outside and somebody was laying on the ground. When Achime looked outside, he saw Makor on the ground. Another man, identified by Achime as appellant, was trying to hit Makor with a gas pump nozzle. Achime stepped outside and told appellant, “[s]top. Police officer,” and stopped appellant from continuing to hit Makor. Appellant did not say anything. Makor had been beaten up and had a laceration on his lip and a swollen face where he said appellant struck him. Achime took Makor, who was shaken and nervous, inside the 7-Eleven and sat him down. In response to the officer's questions, Makor told him he was at the gas pump trying to get gas when appellant approached him and snatched the credit card from him and that he was trying to get his credit card back. That was when appellant struck him and knocked him on the ground and started hitting him with the gas pump nozzle. Achime detained appellant after he saw Makor's injuries. When Achime asked appellant where the credit card was, he said he did not have it. Appellant pointed on the ground and said the credit card is “there.” After Achime called the Dallas Police Department, the police came and arrested appellant. Achime did not see how the fight began. Makor told Achime he knew appellant. Achime did not make out a report; however, he did talk to the officer who arrested appellant. No other property belonging to Makor was found on appellant. Makor did not know where the credit card was; he thought appellant still had it. Appellant was the one who pointed the card out to the police. The card was found in the vicinity of the fight.
        Dana Heter testified she had worked for the Dallas Police Department for two years. At the time of trial she was assigned to the northeast station. On August 19, 2006, she got a call to a 7- Eleven. When Heter arrived at the store, she saw appellant and Makor there. Appellant was sitting outside on the curb with a DISD police officer, and Makor was inside the store, sitting down. Heter saw a cut on Makor's lip. After investigating the facts, Heter filed a robbery case against appellant. On cross-examination, Heter acknowledged she had earlier testified at an examining trial that she had been told by Makor he did not know appellant. Heter clarified that Makor had told her he did not know appellant personally; Makor knew appellant as a fellow person from his country, but did not know him personally. Heter did talk to appellant at the scene.
        Ajang Agok next testified he was appellant's brother and they were the same age.   See Footnote 3  Ajang had been in the United States for six years. He came from Sudan through a refugee camp in Kenya. Ajang met Makor in Kenya. When asked how long he had known him, Ajang replied, “[h]e's really a cool guy, but I don't know him that much because I don't hang out with him.” When they were in the refugee camp Ajang saw Makor on a regular basis. Appellant was in the same refugee camp. When Ajang came to the United States he went first to North Carolina and then to Dallas. In Dallas he again met Makor. Ajang lives with his brother and they socialize with Makor who has played dominoes at their house. They also go out to clubs together. Ajang knows appellant's girlfriend Alon Ding, and believes Makor knows her too, although he has never seen them together. Ajang has known Alon Ding for four years. She is from Egypt. Appellant has a baby with Alon Ding. Ajang was not present during the offense. If his brother did the robbery, Ajang felt he should be punished for it; however, Ajang did not believe his brother did it.
        Ater Thaip next testified he is from Sudan. Appellant is his roommate. Thaip knows Makor who has been to his and appellant's place to play dominoes on one occasion. Thaip also knows Makor from the community center because that is where they go on weekends. Thaip also knows appellant's girlfriend and knows they have a child together. Thaip testified the people from Sudan “kind of have a little group that kind of [keep] in contact with each other over here[.]” Thaip was not present during the offense.
        Appellant testified in his own defense. Appellant knew why he was in court and it was his choice to plead not guilty and have a trial. Appellant knows Makor and has known him for over nine years. They both grew up in Sudan and went to Kenya. They were in Kenya “in the group” for nine years. During that time appellant saw Makor on a day-to-day basis. When appellant came to Dallas he lived with his brother. While appellant lived with his brother, Makor would come over and they would play dominoes. When asked if at some point the two of them started having problems, appellant responded:
 
Actually, in Caribbean Grill on August 11th, my girl, she have a baby on June, and he been keep saying to people that's his baby. And I met with him in the club, I tell him he need to stop away talking about my son like that. And then he told me, “I don't care,” and then I call him outside. When I went with him outside, I dialed the phone. I called the girl and I asked the girl, “Do you know the guy? He been keep disturbing me every day that's his baby.” The girl, she told me she don't know him, you know. And I told him you need to stop away, don't talk about my son like that. And then he told me, “I don't need a problem.” They had a police guy that was over there. The police came to me and told me don't fight the guy and I left, I went home.
 
When asked if this was on August 11, appellant responded:
 
August 11th. And then I didn't go home. My brother take my car in the - - earlier. I went to the - buy some parts to fix his car. His car was broke down. I fixed the car, and I was going to buy Mexican food. I didn't see the gas price was, like, $2.65 and then I make a turn and went to 7-Eleven. My car was on pump three. I fill up the tank and then he came, he parked his car. He was taking the gas, and then when he see me, I was looking for the CD. I about to leave. I was checking the CD case. I was checking the CD, and then he called me, “Aleu.” And I said, “Yes.” I stepped back from the car, I went to him. I thought he was gonna apologize to me for what happened the week, last week. He told me, “Don't get drunk and talking bad to me, I'm gonna do something bad to you one day.” I told him, “What you gonna do to me? That's what you mean?” Then I get back mad and punch him. When I punch him, he was having advertise card in the - in his hands and those things he clean the car glass with. He stabbed me in the back. I about to leave and he stab me in the back. That's why I get mad and I punch him again, he fell down and the officer came and put the handcuffs on me. They didn't ask me, and bring me to jail. That's what happened with me and this guy.
 
        On cross-examination, appellant denied he had ever asked Makor for money. Appellant explained that his roommate had only seen the complainant at their apartment one time because he was probably working on the weekend. When asked if he worked, appellant testified he currently worked “on Samsung” and had been there since 2003. Appellant was working “that day.” Appellant denied grabbing Makor's credit card, but did admit he fought with him. He also denied he hit Makor with the gas pump. Appellant admitted he punched Makor with his hand and that was why he was on the ground. Appellant denied biting the complainant. In response to the prosecutor's question, appellant testified the security guard, the police officer, and the victim were all lying. Later, on redirect, appellant testified he had a fight with Makor but he took nothing from him and the fight was not because he was trying to get Makor's credit card. The only thing appellant asked Makor for was to leave his girlfriend and baby alone. That was what the fight was all about. It was not a robbery.
        After hearing closing arguments, the trial court found appellant guilty of robbery. Appellant took the stand on punishment and testified he had never been convicted of a felony. He asked for probation. The trial court set appellant's punishment at ten years' confinement and a fine of $800; however, the court suspended imposition of the confinement portion of the sentence and placed appellant on community supervision for six years.
        Applying the factual sufficiency standard of review set out above to the facts testified to at trial, we cannot conclude the trial court's finding of guilt was “clearly wrong or manifestly unjust” or “against the great weight and preponderance of the evidence.” Marshall, 210 S.W.3d at 625. If believed, the facts testified to by Makor, and corroborated in part by the DISD police officer, are factually sufficient to support appellant's conviction for robbery. Moreover, appellant admitted hitting Makor with his hand. Makor testified he was hurt by appellant hitting him. The evidence being legally and factually sufficient to support the conviction, we affirm.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
070108F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Alondean is later spelled Alon Ding in the record.
Footnote 3 Ajang and appellant had different mothers and the same father.