Isreal, Kelvin DeWayne v. The State of Texas--Appeal from 230th District Court of Harris County

Affirmed and Memorandum Opinion filed April 10, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00429-CR

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KELVIN DeWAYNE ISREAL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 891,575

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M E M O R A N D U M O P I N I O N

  Appellant Kelvin DeWayne Isreal challenges his aggravated robbery conviction alleging the evidence is factually insufficient to identify him as the robber. We affirm.

I. Factual and Procedural Background

The complainant, Patricia Lomonaco, was robbed in a well-lit grocery-store parking lot at approximately 1:00 a.m. As she was retrieving her checkbook from the glove compartment of her automobile on the passenger side of her car, a black Ford Mustang pulled up behind her and a man got out of the car. Before she could turn around, the robber hit the back of her head, pushing her forehead into the door of her car. The robber then turned her around, and with Lomonaco facing him, held a revolver to her head while using his free hand to take things from her pockets and car.

As the robber ran back to the Mustang with Lomonaco s purse and items from her pockets, Lomonaco was able to see the car s license-plate number and she made a conscious effort to remember it. After the robber entered the passenger side of the Mustang, it sped off and Lomonaco went into the grocery store and asked people inside to call the police. Inside the store, she lost consciousness briefly, but a woman threw alcohol on her face and revived her before the police arrived.

A sheriff was dispatched to the scene at 1:06 a.m. and arrived at 1:12 a.m. Deputy Tellis spoke with Lomonaco in the parking lot, and she was cooperative and able to answer his questions. She described the robber and reported the license-plate number to Deputy Tellis as she remembered it. Based on the complainant s description, Deputy Tellis put out an all-points bulletin for a heavyset, black male, approximately five feet, eleven inches tall, 30 35 years old. The sheriff s department identified the owner of the black Mustang by tracing the license-plate number.

After interviewing the owner of the Mustang, police identified appellant as a suspect. Accordingly, they included his picture in a photographic lineup they presented to Lomonaco a couple of days after the robbery. Lomonaco identified appellant as the robber in the photographic lineup. However, between the night of the robbery and the time of the lineup, she was diagnosed with a concussion and suffered some temporary memory loss. At trial, Lomonaco testified that two days after the robbery, she could not remember her own name or an address at which she had lived for seventeen years. But she further testified the concussion did not cloud her memory of the robbery or appellant. She identified appellant as the robber in open court.

A jury found appellant guilty of aggravated robbery. After appellant pleaded true to two enhancement paragraphs, the jury assessed punishment at 27 years confinement in the Texas Department of Criminal Justice, Institutional Division.

II. Issue Presented and Standard of Review

In his sole issue, appellant argues the evidence is factually insufficient to sustain his conviction because only Lomonaco identified him as the robber, and she lost consciousness after the attack and also suffered memory loss and a concussion.

When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence without the prism of in the light most favorable to the prosecution and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 6 7 (Tex. Crim. App. 2000). This concept embraces both formulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. at 11. Under this second formulation, the court essentially compares the evidence which tends to prove the existence of a fact with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 648. Our evaluation should not intrude upon the fact finder s role as the sole judge of the weight and credibility given to any witness s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

III. Analysis

Appellant contends the evidence is factually insufficient to prove his identity as the robber for several reasons: (1) only Lomonaco identified appellant as the robber and she was unconscious shortly after the robbery, and suffered a concussion and memory loss; (2) there were discrepancies between Deputy Lilly s and Lomonaco s accounts of the photograph lineup; (3) although Lomonaco told the deputy at the lineup, that s him, but it doesn t look like that head fits that big body, there was not a lineup at which Lomonaco could see the full body of each person in the lineup; and (4) there was no fingerprint evidence identifying appellant as the robber.[1]

Although appellant raises factors the jury could have weighed when considering the evidence in this case, the record does not contain evidence that controverts Lomonaco s identification of appellant as the robber. See Palma v. State, 76 S.W.3d 638, 646 (Tex. App. Corpus Christi 2002, pet. ref d). In conducting our review, we are mindful that it is the jury s province to weigh the credibility of a witness s identification testimony. See Harvey v. State, 3 S.W.3d 170, 175 (Tex. App. Houston [14th Dist.] 1999, pet. ref d). Lomonaco saw the robber in a well-lit parking lot and testified her concussion did not affect her memory of the robber or the events that occurred during the robbery. The record corroborates this testimony because the license-plate number she gave the police led to the black Mustang used as the getaway car. After police spoke with the owner of the Mustang, they identified appellant as a suspect. At the photographic lineup, a couple of days after the robbery, Lomonaco independently identified appellant as the robber. At trial, Deputy Lilly, who conducted the lineup, classified Lomonaco s identification of appellant as positive rather than tentative because she was absolutely certain appellant was the robber.

Though there were discrepancies between Deputy Lilly s and Lomonaco s account of the lineup procedure, we defer to the jury s determination of what weight to give contradictory testimony. See Johnson, 23 S.W.3d at 8. Nonetheless, in conducting our factual sufficiency review, we compare the evidence which tends to prove appellant was the robber with the evidence that tends to disprove appellant was the robber, and note the discrepancies are insufficient to render the jury s verdict manifestly unjust.[2] Finally, although appellant complains that there was not a lineup in which Lomonaco could see the entire body of each lineup participant, at trial, appellant was asked to stand, and Lomonaco made a positive in-court identification of him based on his facial attributes and body size. Lomonaco testified that her in-court identification of appellant was based on her recollection of the robbery and not on the photographic lineup.

Having reviewed all of the evidence in this case, we find the jury s verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 6 7. Accordingly, we overrule appellant s sole issue and affirm the trial court s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed April 10, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] Appellant cites no authority for the proposition that an officer s failure to obtain fingerprints at a crime scene renders a judgment factually insufficient. However, our consideration of this contention is subsumed in our analysis of whether the jury s verdict is manifestly unjust because our review includes a review of all of the evidence in the record.

[2] Lomonaco testified there were nine photos in the lineup, she immediately identified appellant as the robber, and Deputy Lilly did not give her any admonishments before she viewed the photospread. By contrast, Deputy Lilly testified there were six photos in the lineup, that he gave Lomonaco admonishments on how to fairly assess the lineup, and that she identified appellant after a two or three-minute process of elimination. There is a copy of the photospread in the record and it consists of six photographs.