Whitfield, Joseph Anthony v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmedand Memorandum Opinion filed April 17, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00141-CR

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JOSEPH ANTHONY WHITFIELD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris  County, Texas

Trial Court Cause No. 872,885

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

Appellant Joseph Whitfield appeals his conviction for aggravated robbery. In three issues, appellant challenges the sufficiency of the evidence, and claims that the police=s failure to obtain fingerprint evidence from the crime scene violated his constitutional rights. We affirm.

The complainant, Hai Tran, testified that on March 22, 2001, a man approached him as he was getting out of his Acura SUV and asked him for a glass of water. Tran brought the man some water, and when Tran turned to go back inside with the empty glass, the man hit him with a rock. According to Tran, the man hit him a second time with the rock, then pulled out a semi-automatic gun, threatened him, and took his keys. After the man left in Tran=s SUV, Tran called 911. In both a photograph lineup and in court, Tran identified appellant as the man who robbed him.

Deputy David Miller of the Harris County Sheriff=s Department responded to the 911 call and questioned Tran at the scene. Miller testified that Tran had several cuts and bruises and was bleeding from a cut in his head. According to Miller, Tran told him a man attacked him with a brick, then pulled out a semi-automatic handgun, threatened Tran, and took Tran=s keys.

Officer Christian Alonzo of the Harris County Constable=s Office was on patrol near the robbery scene when he stopped Tran=s SUV for speeding. The driver identified himself as appellant; however, at the time of this stop, the SUV had not yet been reported stolen. Officer Alonzo noticed an ammunition box in the front seat, so he asked the driver to get in the back of his patrol car while he searched the vehicle. According to Alonzo, the box was empty and no weapon was found.

In his first issue, appellant claims the evidence identifying him as the robber is factually insufficient. We conduct a factual-sufficiency review by asking whether a neutral review of all the evidence demonstrates 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. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The complainant, Tran, clearly identified appellant as the man who attacked him and stole his SUV. Officer Alonzo testified that appellant was driving Tran=s SUV when Alonzo stopped him for speeding shortly after the attack, but before the vehicle had been reported stolen. In his brief, appellant suggests reasons why Tran=s and Alonzo=s testimony is not credible.[1] However, the jury is the sole judge of the weight and credibility of witnesses= testimony, and we, as a reviewing court, should not substantially intrude on that role. See Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). We find the evidence supporting appellant=s guilt is not so weak as to undermine confidence in the jury=s verdict.

Next, we consider whether the proof of appellant=s guilt is greatly outweighed by contrary proof. Appellant presented testimony from his boss, Pablo Lozano, who said appellant was still at work when the attack was alleged to have occurred. Appellant testified and provided an explanation for why he was driving Tran=s SUV shortly after that time. When faced with conflicting testimony, the jury is the sole judge of the weight and credibility of that testimony. Vasquez, 67 S.W.3d at 236. We cannot say the evidence relied on by appellant greatly outweighs the proof of appellant=s guilt. We overrule appellant=s first issue.

In his second issue, appellant claims the evidence is both legally and factually insufficient to support the jury=s finding that a firearm was used. In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found beyond a reasonable doubt that appellant used a firearm. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). Tran clearly testified that appellant pulled out a gun and pointed it at Tran before taking his keys. According to Deputy David Miller, who responded to the scene, Tran told him that his attacker pointed a gun at him and threatened to kill him if Tran did not give him the keys. The only conflicting evidence appellant points to is Officer Alonzo=s testimony that after stopping appellant for speeding, he searched the SUV and did not find a gun, although he did see an empty box of ammunition. We conclude the evidence is both legally and factually sufficient to support the finding that appellant used a firearm. We overrule appellant=s second issue.

In his third issue, appellant claims his right to due process was violated by the failure of the police to obtain readily available fingerprint evidence. Specifically, appellant claims the police violated his constitutional rights by not attempting to lift fingerprints from (1) the glass used by Tran=s attacker and (2) the stripped SUV after police found it. The duty to preserve evidence is limited to evidence that possesses an exculpatory value that was apparent before the evidence was destroyed. Burke v. State, 930 S.W.2d 230, 236 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d) (citing California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534 (1984)). Appellant must affirmatively show that the lost evidence was favorable and material to his defense. See Hebert v. State, 836 S.W.2d 252, 254 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d). In addition, failure to preserve potentially useful evidence does not constitute a denial of due process unless appellant can show bad faith on the part of the State. See Burke, 930 S.W.2d at 236; Hebert, 836 S.W.2d at 254. Here, appellant has not demonstrated that any fingerprints from the glass would have been favorable to his defense, nor has he shown that the glass was destroyed or otherwise unavailable for independent inspection. Appellant also failed to present any evidence to suggest the State acted in bad faith by not attempting to take fingerprints from the glass. Accordingly, we overrule appellant=s third issue.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed April 17, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

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

[1] Specifically, appellant claims Tran=s testimony is not credible based on (1) Tran=s testimony that it was Abright,@ although the attack occurred around sunset; (2) Tran=s misidentification of the precise name tattooed on his attacker=s neck; (3) alleged improper influence from a photospread by which Tran identified appellant as his attacker; and (4) the alleged existence of Across-race recognition deficit,@ making it difficult for Tran (of Vietnamese descent) to identify appellant (an African-American).