Brown, David Steven v. The State of Texas--Appeal from 209th District Court of Harris County

Affirmed and Opinion filed February 17, 2005

Affirmed and Opinion filed February 17, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01265-CR

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DAVID STEVEN BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 896,579

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

Appellant, David Steven Brown, was charged by indictment with aggravated robbery and entered a plea of not guilty. The jury found appellant guilty and assessed punishment at forty-five years confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant asserts five points of error on appeal. In his first and second points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction because the State failed to prove the knife used during the commission of the robbery constituted a deadly weapon. In his third and fourth points of error, appellant contends that the State s eyewitness identification is so incredible as to render the evidence legally and factually insufficient to support his conviction. In his fifth point of error, appellant alleges that the trial court committed reversible error by admitting an edited copy of a video surveillance tape into evidence because the State failed to establish that the initial recording was reliable. We affirm.

Background

On the evening of November 25, 2001, Norisa Reed was working in the courtesy booth of a grocery store in Harris County, Texas. When the store closed, employees checked the entire store to make sure no customers remained inside. Then Helen Fountain, the acting manager, locked the doors. The cashiers brought their registers to Reed in the secured courtesy booth for Reed to count the money and lock it in the safe. Afterwards, following customary procedure, Fountain unlocked the front door and let all of the employees out of the store. Only she and Reed remained inside.

Suddenly, a man approached Reed from behind and said, black girl, black girl, lay on the ground. Reed turned around and saw a man wearing a ski mask holding a long knife with a brown handle. Afraid the man would stab her, Reed laid down on her side in a fetal position. Fountain subsequently walked into the booth and said, oh, my gosh, what is going on? [1] The man told Fountain to get the money out of the safe. Fountain emptied the safe, put the money in a bag, and gave it to the man. The man told Fountain to let him out of the store, which she did.[2] Reed called 9-1-1.

Kenneth Belvin, a sacker, was standing outside approximately ten to thirteen feet away from the front door waiting for his mother to pick him up. Belvin saw a green Ford Explorer driven by a fairly heavy female in her mid-sixties with light gray hair pull up to the front of the store.[3] Shortly thereafter, Belvin saw appellant exit the store with a brown paper bag and get into the Ford Explorer, which drove away.[4]

Terry Waokup, the store s supervising manager,[5] heard about the robbery and came to the store to stop the surveillance tape and give it to the police. After several unsuccessful attempts to eject the tape, the video recorder was taken apart and the tape was removed with some damage to the casing and some electric tape sticking out.

The twenty-four hour tape, with a new outer casing, was admitted into evidence along with an edited version that showed only the actual occurrence. The videotape showed the robber pulling off his mask. William Dybala, the store s director, and Waokup both testified that they had seen appellant many times at the store and that both believed appellant is the man on the videotape.[6]

Sufficiency of the Evidence

In his first four points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction for aggravated robbery. We disagree.

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In a factual sufficiency review, we view all of the evidence in a neutral light. We will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

Knife as a Deadly Weapon

In his first and second points of error, appellant argues the evidence is legally and factually insufficient to support his conviction because the State failed to prove that the knife used constituted a deadly weapon.[7] We disagree.

A knife is not a deadly weapon per se. Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). However, the State may show a knife to be a deadly weapon by demonstrating the manner of its use, its size and shape, and its capacity to produce death or serious bodily injury. Hawkins v. State, 605 S.W.2d 586, 588 (Tex. Crim. App. 1980). In ascertaining whether a particular knife is a deadly weapon by its actual or intended usage, we consider several factors articulated by Texas courts, including: (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use, such as verbal threats and gestures; (3) the nature or existence of inflicted wounds; (4) the testimony of the knife s life-threatening capabilities; and (5) the physical proximity of the accused and the victim. See Thomas, 821 S.W.2d at 620; Garcia v. State, 17 S.W.3d 1, 4 (Tex. App. Houston [1st Dist.] 1999, pet. ref d); Wade v. State, 951 S.W.2d 886, 892 (Tex. App. Waco 1997, pet. ref d).

In support of his legal and factual sufficiency challenge, appellant makes four arguments. First, he argues that the knife used during the commission of the robbery was not recovered; however, the State is not required to offer the deadly weapon into evidence to meet its burden of proof. See Victor v. State, 874 S.W.2d 748, 751 (Tex. App. Houston [1st Dist.] 1994, pet. ref d) (citing Morales v. State, 633 S.W.2d 866, 868 (Tex. Crim. App. [Panel Op.] 1982)). Appellant also points out that no injuries were caused by the weapon. Texas law does not require that a knife used in the commission of a crime actually inflict any wounds. Miller v. State, 846 S.W.2d 365, 369 (Tex. App. Houston [14th Dist.] 1992, no pet.); Birl v. State, 763 S.W.2d 860, 863 (Tex. App. Texarkana 1988, no pet.); see also Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986). Furthermore, although appellant argues that there was no specific testimony regarding the length of the blade or its relative sharpness, the record reflects that there was testimony from Reed that the knife was long and had a brown handle.

Finally, appellant argues that no specific threats were made during the commission of the offense. We conclude that, after hearing the complainant s testimony, the jury was fully warranted in concluding that appellant s use of the knife constituted an implied threat. See Tisdale v. State, 686 S.W.2d 110, 115 (Tex. Crim. App. 1984) (finding that appellant s use of the knife in the commission of a robbery could properly be perceived by the fact finder as an implied threat). The evidence shows that appellant approached Reed from behind and, within a close proximity, said, black girl, black girl, lay on the ground. Appellant was wearing a ski mask over his face and was holding a long knife with a brown handle. Reed said she was scared and followed appellant s instructions because she was afraid he would stab her. There is nothing in the record to suggest that the jury s resolution of this conflicting testimony was not reasonable. Id.

Viewing the evidence in a light most favorable to the verdict, we find sufficient evidence to show beyond a reasonable doubt that appellant used or exhibited a deadly weapon during the offense. Similarly, after considering the evidence in a neutral light, the evidence is not too weak to support the finding of guilt beyond a reasonable doubt, and contrary evidence was not so strong to conclude the reasonable doubt standard could not be met. Appellant s first and second points of error are overruled.

Credibility of State s Witnesses

In his third and fourth points of error, appellant argues the evidence is legally and factually insufficient to support his conviction because the State s witnesses were not credible. A careful review of the record, however, reveals that the jury s verdict was supported by the evidence adduced at trial.

The evidence shows that an employee was standing approximately ten to thirteen feet outside the store s front door. The employee saw a woman drive a vehicle to the front of the store and saw appellant exit the store carrying a bag. The employee was unable to see appellant s face, but said he was familiar with appellant and recognized him from his hair, his snakeskin boots, and his clothes. Several witnesses also testified that appellant s girlfriend was Fountain, the acting manager on the night of the incident. The employees description of the getaway car and the female driver matched testimony describing appellant s mother and her vehicle. A surveillance videotape showed appellant carrying a bag and taking off his ski mask. The store s director and the store s supervising manager both testified that they had seen appellant many times at the store and both believed appellant to be the man on the videotape.

Our evaluation should not intrude upon the fact-finder s role as the sole judge of the weight and credibility of the evidence. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Moreover, [a] decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Id at 410. Viewing the evidence in a light most favorable to the verdict, we find sufficient evidence to find appellant guilty beyond a reasonable doubt. After considering the evidence in a neutral light, we conclude that the evidence is not too weak to support the finding of guilt beyond a reasonable doubt, and that contrary evidence was not strong enough to conclude the reasonable doubt standard could not be met. The evidence is therefore legally and factually sufficient to support appellant s conviction. Appellant s third and fourth points of error are overruled.

Surveillance Videotape

In his fifth point of error, appellant contends that the trial court committed reversible error by admitting an edited copy of a surveillance videotape into evidence. Specifically, appellant argues that the State failed to meet the test set forth in Edwards v. State to establish that the initial recording was reliable because the outside casing of the original tape had been damaged and the date and time on the tape were incorrect. 551 S.W.2d 731, 733 (Tex. Crim. App. 1977). We note that the test used in Edwards was superceded by the adoption of the Texas Rules of Evidence. Leos v. State, 883 S.W.2d 209, 211 12 (Tex. Crim. App. 1994).

Texas Rule of Evidence 901 governs authentication of evidentiary items, including videotapes. See Tex. R. Evid. 901 & 1001(2); Kephart v. State, 875 S.W.2d 319, 321 22 (Tex. Crim. App. 1994), overruled on other grounds, Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). Rule 901 provides in pertinent part:

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

* * *

(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

Tex. R. Evid. 901(a), (b). We review the trial court s ruling on authentication issues under an abuse of discretion standard. Angleton, 971 S.W.2d at 67. The standard requires an appellate court to uphold an admissibility decision made by a trial court when the decision is within the zone of reasonable disagreement. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Under this standard, we find that the trial court did not abuse its discretion in admitting the videotape. Page v. State, 125 S.W.3d 640, 648 49 (Tex. App. Houston [1st Dist.] 2003, pet ref d); Reavis v. State, 84 S.W.3d 716, 719 20 (Tex. App. Fort Worth 2002, no pet.).

As to the allegation that the tape was not reliable due to its damaged condition, the record reflects that after being notified of the robbery, Waokup came to the store, stopped the videotape, and watched five to ten minutes of the tape to see if it had captured the incident. Waokup, Dybala, and Deputy Pool were present when the videotape was removed from the recorder in the store s surveillance room. All three witnesses testified that the outside cannister of the videotape was damaged. The witnesses also testified that the reel of tape inside was twisted and stretched in one section but that they did not believe that the tape itself was damaged.

Gary Johnson, an investigator for the Harris County District Attorney s Office, also offered authentication testimony. Johnson testified that the outside cannister of the tape had been damaged but the tape itself had not been.[8] Johnson replaced the damaged canister with an undamaged canister and left the original reel of tape. The original reel of tape, State s Exhibit 4-A, contains twenty-four hours of coverage. Johnson re-recorded the actual occurrence from State s Exhibit 4-A into a twenty-minute version which was admitted as State s Exhibit 6 and shown to the jury. Johnson testified that State s Exhibit 6 is a true and accurate representation of the original. Similarly, Waokup viewed State s Exhibits 4-A and 6 and testified that State s Exhibit 6 is a portion of what is contained in State s Exhibit 4-A. We find that the above testimony meets the requirements of Rule 901.

Appellant also argues that the videotape is not reliable because the date and time on the tape were inaccurate. Specifically, appellant contends that since the evidence showed that he had been known to visit the store on previous occasions, the footage of him leaving the store could have been from a time other than the time of the robbery. Waokup estimated the date was way off [9] and that the time on the videotape was off by twenty minutes based on when he arrived at the store. However, he also testified that, since the cameras taped in a loop, he could tell which day he was watching by who was working in the store. Waokup testified that he knew he was watching the tape of the night of the crime because he could see himself enter the store, heading towards the video recorder to turn the tape off and give it to the police.

In the tape, a male figure is seen exiting the store, pulling a mask off his head and stuffing it into a bag he is carrying. Shortly thereafter, Waokup can be seen entering the store. We find that, given Waokup s testimony regarding his knowledge of the video recording process, the crime, his activities in the store after the crime, and his familiarity with appellant, his testimony meets the requirements of Rule 901. See Page, 125 S.W.3d at 648 49; Reavis, 84 S.W.3d at 720. That is, because Waokup is a witness with knowledge of the store, the tape, the taping process, and the appellant, his testimony is sufficient to enable a reasonable jury to conclude that the tape was what the State claimed it to be. See Page, 125 S.W.3d at 648 49; Reavis, 84 S.W.3d at 720. Furthermore, although appellant could have been in the store a number of times, we doubt that it was his common practice to exit the store pulling a mask off of his head. Appellant s final point of error is thus overruled.

We affirm the judgment of the trial court.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed February 17, 2005.

Panel consists of Chief Justice Hedges and Justices Hudson and Frost.

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

[1] Reed testified that Fountain seemed to be acting.

[2] Reed testified that she found it strange that the man asked Fountain to let him out of the store because he should have had no way to know that she had the keys.

[3] The evidence shows that appellant s mother is in her late fifties or early sixties, is short and stocky, and drives a green Ford Explorer.

[4] Belvin testified that he recognized appellant because he had met and had had a conversation with him in the past. The way in which appellant carried the bag of money prevented Belvin from seeing appellant s face; however, Belvin was able to identify appellant because of his long salt-and-pepper-colored hair, his clothes, and his snakeskin boots.

[5] Waokup testified that he had worked at the store for thirty-two years and that he has been the manager for the last twenty-eight or twenty-nine years.

[6] Dybala believed the man on the videotape was appellant because it looked like his profile.

[7] A deadly weapon is anything manifestly designed, made, or adapted for the purposes of inflicting serious bodily injury; or, anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. 1.07(a)(17)(A)&(B) (Vernon Supp. 2004).

[8] Johnson testified that a possibility existed that the original tape had had a bad spot on it, but that the spot would not have been at the time of the crime and thus would not have had any relevance to the case. Johnson also testified that, had the relevant portions of the tape been altered, spliced, or damaged in any way, he would have been able to tell. Johnson testified that he did not observe any evidence of such alteration or damage.

[9] Waokup testified that the date stamp showed an August date. The crime occurred in November.