Kurt Andre Miles v. The State of Texas--Appeal from 208th District Court of Harris County

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-01048-CR

KURT ANDRE MILES , Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1087429

MEMORANDUM OPINION

A jury found appellant, Kurt Andre Miles, guilty of aggravated robbery, and, having found the enhancement paragraph alleging a prior conviction for aggravated assault true, the trial court assessed punishment at life in prison. See Tex. Pen. Code Ann. 29.03 (Vernon 2006). In his sole issue on appeal, appellant contends that the evidence is factually insufficient to sustain his conviction because the State failed to prove that he grabbed the complainant's purse and maintained and used her property. We affirm.

Background

At approximately 7:30 p.m. on October 29, 2004, Houston Police Department officer, Officer Medina, responded to a call regarding an injured person at the Randalls grocery store on Bellfort Avenue in Harris County, Texas. Officer Medina testified that he arrived to find the complainant, Sarah Pinckard, a 76-year-old woman, unconscious. He retrieved the complainant's grocery receipt from the Randalls' store manager, which included the complainant's name and credit card information. Officer Medina remained with the complainant until the ambulance took her to Ben Taub Hospital, where she died the next day.

An eyewitness, Michael Cabanas, testified that he saw the complainant falling towards the ground as a sport utility vehicle ("SUV") drove past her. Cabanas told Officer Medina that there were two people in the SUV. He described the driver as an older light black or hispanic male, with a "low fade hair cut," wearing a red short-sleeve shirt. According to Cabanas, the SUV was a darker-colored gray Ford Explorer or Expedition. At trial, he identified the SUV from a photograph.

The investigating officer, Sergeant Hayes, testified that the complainant purchased groceries with a credit card, and her car was in the parking lot, yet he was unable to find her credit card, car keys, or a purse; therefore, although no purse was ever found, he concluded that the complainant originally had a purse. Sergeant Hayestracked the complainant's credit card to several purchases beginning 16 minutes after the robbery at three different locations: Citgo, Food Mart, and Saveway. He interviewed all of the store managers and obtained surveillance video from the Citgo and Saveway locations. The Citgo surveillance footage showed the presence of a black man and woman and an SUV at around the time the complainant's credit card was used. The Saveway photographs likewise showed a black man and woman, but were dated October 20, 2004, at the impossible time of 46:08. A Crime Stopper's report using a surveillance photograph from Saveway was broadcast November 17, 2004. Paul Brantley, after recognizing the individuals portrayed to be his mother, Cynthia Melvin, and appellant, contacted authorities. At trial, Brantley identified appellant. Sergeant Hayes discovered that vehicle registration records listed Cynthia Melvin as the owner of a Ford SUV.

During his investigation, Sergeant Hayes learned that a similar crime had occurred earlier that same day in the Meyerland Plaza parking lot around 10:45 a.m. Sergeant Hayes interviewed the complainant in that case, Ruth Posey, a 64-year-old woman. Posey testified that an SUV drove next to her in the parking lot while the driver, whom she presumed was male, grabbed her purse and then drove off, leaving her on the pavement. Posey described the vehicle as a light blue or gray Ford SUV, possibly an Explorer.

Using Posey's credit card information, Sergeant Hayes tracked subsequent purchases on her account to a Palais Royal store. Surveillance video and photographic evidence from Palais Royal, as well as testimony from the store manager, Betty Sheppard, and check-out clerk, Salina Jackson, placed appellant and Cynthia Melvin together at Palais Royal at the same time Posey's credit card was used. Sheppard and Jackson identified appellant and Melvin from a photographic line up.

Appellant did not put forth any evidence during the guilt phase of the trial.

Factual Sufficiency of the Evidence

In his sole issue, appellant argues that the evidence was factually insufficient to support his conviction for aggravated robbery because the State failed to prove that he grabbed the complainant's purse and maintained and used her property. Specifically, appellant argues that no one identified him as the individual who robbed the complainant, that the testimony and surveillance video did not prove his possession or use of stolen property, and that the State's use of extraneous offense testimony and evidence was unreliable. We disagree.

Standard of Review

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the proof of guilt is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we also cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In our factual-sufficiency review, we must also discuss the evidence that, according to appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines the weight to be given contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. This standard of review applies to both direct and circumstantial evidence cases. King, 29 S.W.3d at 565.

Analysis

The indictment alleges that appellant, "while in the course of committing theft of property . . . and with intent to obtain and maintain control of the property, [did] recklessly grab the purse of the Complainant while the Complainant was walking and the Defendants were in a moving vehicle; caused bodily injury to Sarah Pinckard, a person at least sixty-five years of age by causing her to fall to the pavement striking her head." Appellant's factual sufficiency argument centers primarily on the circumstantial nature of the evidence presented. Appellant first asserts that the evidence fails to identify him as the individual who robbed the complainant. While the appellant was not directly identified as the assailant, an eyewitness described the SUV and its driver and passenger as it drove by the falling complainant. There is also surveillance footage at the Citgo where the complainant's credit card was fraudulently used after her attack showing the presence of a black man and woman while an SUV was parked outside. Melvin's son later identified the individuals in the Saveway photograph to be his mother and appellant. Regarding the reliability of the Saveway photographs, while the printed date is October 20, 2004, the printed time is 46:08. Thus, it would not be irrational to conclude the date and time mechanism was not operating properly.

Appellant points out that no purse was found and that no direct evidence shows that the complainant was carrying a purse at the time of the alleged robbery. Sergeant Hayes determined that the complainant's purse was missing because her car was located in the Randalls parking lot, but her keys could not be found, and a sales receipt showed that she had made a credit card purchase at Randalls moments before her injury, but no credit card was located.

Additionally, appellant complains about an admitted extraneous offense, specifically, that he was not identified by the extraneous offense complainant, Posey. Extraneous offenses are admissible on the question of identity if the extraneous offense has sufficient common distinguishing characteristics to show that it was the handiwork of the accused, and the State's case is entirely circumstantial on the question of identity. Tex. R. Evid. 404(b); Russell v. State, 665 S.W.2d 771, 778 (Tex. Crim. App. 1983). The State established that Posey's earlier robbery was similar to Pinkard's here, in that (1) the robberies both occurred in a shopping center parking lot on the same day, (2) the suspect was driving a blue or gray/silver Ford SUV, (3) the targets were both older women whose purses were stolen, and (4) both victims' credit cards were used shortly after the robbery. Surveillance video, credit card evidence, as well as Sheppard's and Jackson's testimony and photo line-up identification positively identified appellant in the extraneous offense. Appellant also fails to support his claim that Posey's testimony is "totally unreliable."

Appellant further argues that the evidence fails to show that he used the stolen credit cards of either the complainant or Posey. The State produced no direct evidence that appellant actually possessed the complainant's purse or credit card. However, circumstantial evidence alone can support a permissive inference of personal possession of recently stolen items. See Louis v. State, 159 S.W.3d 236, 248 (Tex. App.--Beaumont 2005, pet. ref'd) (holding a permissive inference of possession rational because appellant was virtually sitting on the stolen items). Significant circumstantial evidence shows appellant's presence at the Citgo and Saveway contemporaneously with the use of the stolen credit cards. And while there was testimony that other customers were also present at these locations at the time that the complainant's credit card was used, such evidence does not disallow the jury from determining that appellant was the person who used the credit card.

As for the extraneous offense, appellant correctly points out that the evidence tends to show that Melvin was the user of Posey's credit card. However, an appellant's criminal responsibility can encompass the acts of others as well. Tex. Pen. Code Ann. 7.01(a), 7.02(a)(2) (Vernon 2003). When, as here, a party is not the primary actor, the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). The Texas Court of Criminal Appeals recently held that the State can charge individuals for the acts of others, when the individual acted in concert with the other person, and use circumstantial evidence alone to show that the parties acted together to accomplish their common purpose. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006). Here, surveillance and photographic evidence placed appellant and Melvin together at Palais Royal, Citgo, and Saveway on October 29, 2004, spanning the unauthorized uses of both Posey's and the complainant's credit cards. Therefore, evidence supports that the parties acted together to accomplish their common purpose. In light of this evidence, a permissive inference that appellant possessed the complainant's credit card is supported by the evidence.

The sum of the evidence supports a finding that, on October 29, 2004 in Harris County, Texas, appellant recklessly caused bodily injury to Sarah Pinckard, a person at least 65-years-old, by grabbing her purse while driving past her. Moreover, it cannot be said that this evidence renders the verdict clearly wrong or manifestly unjust, nor can it be said that the great weight and preponderance of the evidence contradicts the jury's finding of appellant's guilt. As a result, we hold that the evidence is factually sufficient to sustain the jury's finding of guilt, and we overrule appellant's sole issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Hanks, and Higley.

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