Tracy Bernard Miles v. The State of Texas--Appeal from 248th District Court of Harris County

Opinion issued October 12, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00346-CR

TRACY BERNARD MILES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1020224

MEMORANDUM OPINION

Appellant, Tracy Bernard Miles, appeals the trial court s judgment convicting him for felony burglary of a habitation. See Tex. Pen. Code Ann. 30.02(a)(1), (c)(2) (Vernon 2003). Appellant pleaded not guilty to the jury. The jury found appellant guilty and the trial court sentenced him to 35 years in prison, after finding true two punishment enhancement paragraphs. In his sole issue on appeal, appellant challenges the factual sufficiency of the evidence to support his conviction by claiming that the evidence is too weak to establish his identity as the person who committed the offense. We conclude that factually sufficient evidence establishes appellant s identity. We therefore affirm the judgment of the trial court. BackgroundIn September 2004, Weldon Holman s eye was hit by a piece of metal while he was at work. He was treated at a hospital, where he was given pain medication and instructed to keep his eye clean. Holman went home, and went to sleep around midnight. At around 5 a.m., Holman awoke when an intruder kicked in his locked bedroom door. Holman recognized the intruder as a man he knew as Dwight. The two men briefly cursed at one another, and Dwight fled. Holman then went to his bedroom window and saw three men hurrying out of the apartment. He immediately recognized appellant, whom he knew as Trey, Dwight, and a third person whom he knew as Juano. Holman was acquainted with all three men from having seen them around the apartment complex, particularly appellant because appellant s girlfriend lived near Holman. After watching the intruders leave, Holman discovered that his mother s 60-inch television set and some other electronics were missing.

The crime was immediately reported to police officers. About five weeks later, on November 2, Holman positively identified appellant from an array of six photographs.

Factual Sufficiency of the Evidence

Appellant contends the evidence to establish his identity as the perpetrator of the burglary is factually insufficient for the following reasons:

" Holman s opportunity to view the fleeing men was too brief to make a reliable identification;

" Holman viewed appellant from inside a darkened room;

" Holman could only see the backs of the intruders as the intruders turned away from the bedroom window to flee from the apartment;

" Holman was suffering from an eye injury which he sustained the day before the burglary;

" Holman was sleepy due to pain medication and antibiotics used to treat his eye;

" Holman was not wearing his prescription eyeglasses when he viewed the fleeing burglars, and his vision without them is mediocre ; and

" Holman was in shock from being awakened suddenly by the sound of his locked door being kicked open.

To determine whether the evidence is factually sufficient, we review all the evidence, both for and against the jury s finding, in a neutral light. Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005). We will disturb the verdict only if the State s proof 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. Id. In conducting such a review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence that tends to disprove it. Id. We are authorized to disagree with the jury s determination even if probative evidence exists which supports the verdict, but we must avoid substituting our judgment for that of the fact-finder. Id. The jury is the exclusive judge of the credibility of witnesses and the weight to be accorded to their testimony, and the jury may accept or reject any or all evidence presented at trial. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). It is well established that a conviction may be based on the testimony of a single eyewitness. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982); Johnson v. State, 176 S.W.3d 74, 78 (Tex. App. Houston [1st Dist.] 2004, no pet.).

At trial, appellant presented no evidence contrary to the State s eyewitness testimony. The factual sufficiency of the evidence complaint, therefore, is not premised on whether the State s identification evidence is greatly outweighed by contrary proof. See Vodochodsky, 158 S.W.3d at 510. The sole factual sufficiency of the evidence inquiry here is whether the State s evidence establishing appellant s identity as one of the burglars is so weak as to undermine confidence in the jury s verdict of guilt. See id.

The record shows that appellant observed the intruders only briefly. Holman acknowledged at trial that he viewed appellant and Juano for maybe a second, and that all three intruders turned quickly away from the window through which Holman was watching. Holman explained, however, that he was acquainted with the three men, having met them a number of times and having seen appellant frequently visiting appellant s girlfriend s nearby apartment. The jury, therefore, could reasonably have determined that Holman s familiarity with appellant enabled Holman to positively identify appellant as one of the intruders despite the short opportunity to observe the intruders. See Walker v. State, 180 S.W.3d 829, 829 33 (Tex. App. Houston [14th Dist.] 2005, no pet.) (holding evidence factually sufficient even though robbery lasted less than one minute, and sole identifying eyewitness had view partially obstructed by perpetrator s hood). Moreover, although appellant s opportunity to view the intruders was brief, appellant, five weeks after the burglary, was able to immediately and positively identify appellant from a photo array as one of the intruders. See Johnson, 176 S.W.3d at 74 78 (holding evidence factually sufficient when victim identified defendant about four weeks after robbery, said she did not forget a face and knew him because of his eyes ); Davis v. State, 831 S.W.2d 839, 841 42 (Tex. App. Dallas 1992, pet. ref d) (holding evidence factually sufficient when identification of robber was made by store manager 10 months after robbery and countered by defendant s five alibi witnesses).

Appellant claims Holman s physical condition impaired his ability to identify the intruders. Specifically, appellant maintains that Holman s identification is unreliable because Holman had an injured eye, was on prescribed pain medication, failed to wear his prescription eyeglasses when he observed the intruders, and was awakened from his sleep. Holman explained, however, that he was able to make an identification of the intruders under these conditions because the injury to his eye did not affect his vision, the pain medication had worn off, and his prescription eyeglasses were for reading and driving, not general use. Additionally, Holman described himself as alert when he observed the intruders, which was confirmed by the officer who spoke to Holman the night of the burglary, who described Holman as alert enough. The record shows, therefore, that although Holman suffered from some physical ailments, those conditions did not interfere with his ability to identify appellant.

Appellant also challenges the eyewitness s identification by asserting that it is unreliable due to inadequate lighting. Holman, however, explained that the inside of the apartment was dark, but the outside of the apartment where the intruders were seen was lit. Holman was thus able to see the intruders, despite the inadequate lighting inside Holman s apartment.

We conclude that all of appellant s challenges to the reliability of Holman s identification of appellant pertain to the weight and credibility to give to Holman s testimony, and we must therefore defer to the jury for its evaluation of this evidence. See Margraves, 34 S.W.3d at 919; Cain v. State, 958 S.W.2d 404, 408 09 (Tex. Crim. App. 1997). Having considered all the evidence in the case in a neutral light, we conclude that the State s evidence is not so weak as to undermine confidence in the jury s conclusion that appellant committed the burglary. See Vodochodsky, 158 S.W.3d at 510. We thus hold that the evidence is factually sufficient to sustain appellant s conviction.

We overrule appellant s sole issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).