Coleman, Parish Lavar v. The State of Texas--Appeal from 400th District Court of Fort Bend County

Affirmed and Memorandum Opinion filed April 14, 2005

 Affirmed and Memorandum Opinion filed April 14, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00003-CR

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PARISH LAVAR COLEMAN, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 36,670 A

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

After a jury found appellant Parish Lavar Coleman guilty of aggravated robbery, the trial court sentenced him to 25 years= confinement. In four issues, he challenges the legal and factual sufficiency of the evidence identifying him as a participant in the crime and the trial court=s admission of statements against interest made by his alleged accomplice. Because we conclude the evidence supporting the conviction is legally and factually sufficient, and appellant=s evidentiary complaints were not preserved, we affirm.

I. Factual Background

Nicholas Deiss, an employee at a Diamond Shamrock convenience store in Rosenberg, was robbed by two men at gunpoint. Both of the assailants wore masks covering their faces, and only one of the two men was armed. At trial, two surveillance videotapes were introduced into evidence, allowing the jury to view the crime on video and hear the voice of the assailant holding the gun. Relying primarily on their familiarity with appellant=s voice and mannerisms, three witnesses identified him as the armed man in the videotape. The jury found appellant guilty of aggravated robbery and, after appellant pleaded true to one enhancement paragraph, the court assessed punishment at 25 years= confinement. This appeal ensued.

In his first and second issues, appellant claims the evidence identifying him as the person committing the offense is legally and factually insufficient to support his conviction. Appellant argues in his third and fourth issues that the trial court erred in admitting the testimony of two witnesses concerning statements against interest made by Charles McMillian, appellant=s alleged accomplice in the robbery.

II. Legal and Factual Sufficiency

A. Standards of Review

In reviewing evidence for legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc). During this process, we do not reevaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998). We affirm the judgment if any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997) (en banc).

When conducting a factual sufficiency review, we remove the prism of Athe light most favorable to the verdict@ and view the evidence neutrally, setting aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt; or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004). In our review of the evidence, we must be deferential to the jury=s findings and resist intruding on the jury=s role as the sole judge of witness credibility and the weight to be given evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). Our standards of review remain the same whether the evidence we consider is direct or circumstantial. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc).

B. Discussion

Appellant claims the evidence identifying him as one of the participants in the robbery is legally and factually insufficient because (1) the witnesses were not credible and identified him only from the videotape, and (2) alibi evidence establishes that he was with his fiancée the night of the robbery.

In addition to the statutory elements of the offense,[1] the State must prove beyond a reasonable doubt that the defendant is the person who committed the crime charged. Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984) (en banc); Smith v. State, 56 S.W.3d 739, 744 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Identity may be proved using direct or circumstantial evidence. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.CAustin 2000, pet. ref=d). Our Rules of Evidence allow voice identification of a defendant Aby opinion based upon hearing the voice at anytime under circumstances connecting it with the alleged speaker.@ Tex. R. Evid. 901(b)(5); Wright v. State, 648 S.W.2d 35, 36 (Tex. App.CDallas 1983, no pet.) (holding that voice identification is neither unfair nor suggestive).

At trial, former Kendleton Police Officer Michael Davis testified he had known appellant for six years and, during that time, spoke with appellant almost daily. Davis testified that because of his familiarity with appellant, he was able to recognize appellant=s voice, build, and walk, and identified appellant as the man holding the gun in the videotape based on these characteristics. Daryl Lee, an acquaintance of appellant for more than twenty years, testified he was familiar with appellant=s voice and that he recognized appellant as the man in the videotape by his actions and his voice. Teresa Martin also testified that because she had known appellant for more than ten years, she could identify him on the videotape by his voice. None of these witnesses equivocated in their identification of appellant.

Appellant argues this testimony is unreliable because it was biased or successfully impeached. Appellant also contends the evidence is insufficient because it was uncorroborated. Texas courts have, however, liberally construed the Rule 901(b)(5) familiarity requirement, upholding voice identifications based on Aany previous acquaintance@ with the speaker. See Locke v. State, 453 S.W.2d 484, 485 (Tex. Crim. App. 1970) (stating a witness may identify a defendant by voice if the witness has heard the voice even once); Williams v. State, 747 S.W.2d 812, 812B13 (Tex. App.CDallas 1986, no pet.) (upholding conviction based on identification by witness that had heard defendant=s voice only twice). Moreover, despite appellant=s claims concerning the veracity of the witnesses= testimony, the jury exclusively judges the facts, the credibility of witnesses, and the weight to be given their testimony. Herrero v. State, 124 S.W.3d 827, 832 (Tex. App.CHouston [14th Dist.] 2003, no pet.). In this role, the jury may believe all, some, or none of the testimony of any witness. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Three witnesses unequivocally identified appellant as one of the two men in the videotape and the jury resolved any alleged inconsistencies in the evidence in favor of the State. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993) (en banc). Thus, viewing the identification evidence in the light most favorable to the verdict, we conclude it is legally sufficient to support appellant=s conviction. Accordingly, we overrule appellant=s first issue.

In evaluating the factual sufficiency of the evidence, appellant refers us to the testimony of his fiancée who stated that appellant was with her the evening of the robbery. Appellant also points to the testimony of Charles McMillian, his alleged accomplice, who testified that appellant did not participate with him in the robbery. The State, however, presented evidence that McMillian told others that he and appellant had committed the robbery. As stated, the jury was free to believe the testimony of the witnesses identifying appellant as one of the robbers and disbelieve McMillian=s testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc) (stating it is the jury=s right to resolve any conflicts in the evidence). The jury was also free to disregard the alibi testimony of appellant=s fiancée. Herrero, 124 S.W.3d at 832; see also Davis v. State, 831 S.W.2d 839, 842 (Tex. App.CDallas 1992, pet. ref=d) (upholding conviction despite the testimony of five alibi witnesses that appellant was in another state when the crime occurred).

Reviewing the evidence for factual sufficiency, we hold the identification evidence is not too weak to support the finding of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the State could not meet its burden. See Zuniga, 144 S.W.3d at 484B85. Appellant=s second issue is overruled.

 III. Admission of McMillian=s Statements Against Interest

 A. Teresa Martin=s Testimony

In his third issue, appellant claims the trial court erred in allowing Teresa Martin to testify concerning statements against interest made by McMillian. Specifically, appellant argues that the statements lacked the requisite trustworthiness for their admission as hearsay exceptions under Rule of Evidence 803(24). See Tex. R. Evid. 803(24).[2] Appellant failed, however, to preserve this complaint for our review.

Preservation of error requires that the complaining party make a timely and specific objection to the complained-of evidence at trial and obtain an adverse ruling. Tex. R. App. P. 33.1(a); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). The purpose of this requirement is to inform the trial court of the basis for the objection and allow the court an opportunity to rule on the objection as the evidence is introduced. Aguilar v. State, 26 S.W.3d 901, 906 (Tex. Crim. App. 2000) (en banc). To be timely, the objection must be made as soon as the objectionable nature of the evidence becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997) (en banc). In addition, preservation of error requires that the complaint on appeal correspond to the objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

Here, appellant objected to Teresa Martin=s testimony regarding the statements made by McMillian on relevance grounds, but did not object on hearsay grounds. Thus, appellant failed to preserve his Rule 803(24) complaint for our review. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003). Appellant=s third issue is overruled.

 B. Alvin Clay=s Testimony

Appellant argues in his fourth issue that the trial court erred in allowing Alvin Clay to testify regarding statements against interest and prior inconsistent statements made by McMillian because the State did not establish the proper predicate under Rule of Evidence 613(a).[3] As with his 803(24) complaint, appellant made no 613(a) objection at trial.

Clay testified that he and McMillian shared a cell in the Fort Bend County jail and, during that time, McMillian stated he and appellant had participated in an aggravated robbery together. After a bench conference that does not appear in the record, appellant=s trial counsel asked whether Clay=s testimony was being offered to impeach McMillian=s testimony. The prosecutor replied that the testimony was being offered as a prior inconsistent statement of McMillian. Appellant=s counsel then requested the court give a limiting instruction to the juryCthat the testimony be used solely for the impeachment of McMillian and not bear on the guilt of appellant. The court gave the requested instruction at the conclusion of Clay=s testimony. Also during Clay=s testimony, appellant=s trial counsel requested an unspecified running objection to Clay=s statement that McMillian implicated appellant as a participant in the robbery. The court granted the objection, but appellant did not request any relief.

Even assuming that either of these objections is sufficient to apprise the court of appellant=s 613(a) argument, appellant did not receive an adverse ruling on either objection. Tex. R. App. P. 33.1(a); Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999) (en banc); Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985) (en banc). Because the court sustained both objections, nothing is preserved for our review. Tucker, 990 S.W.2d at 262. Appellant received the relief he requestedCa limiting instructionCon his first objection to McMillian=s testimony and requested no relief after the court sustained his running objection. Because appellant obtained all the relief he requested after the trial court sustained his objections, he cannot complain of the trial court=s actions on appeal. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993) (en banc) (affirming the maxim that there is nothing to complain of on appeal when appellant has been given all the relief he requested at trial). Appellant=s fourth issue is therefore overruled.

For the foregoing reasons, we affirm the judgment of the trial court.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed April 14, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

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

[1] A person commits aggravated robbery if he commits robbery as defined in Section 29.02, and he:

(1) causes serious bodily injury to another;

(2) uses or exhibits a deadly weapon; or

(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:

(A) 65 years of age or older; or

(B) a disabled person.

Tex. Pen. Code Ann. ' 29.03(a) (Vernon 2003).

A person commits robbery under section 29.02 if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

Tex. Pen. Code Ann. ' 29.02(a) (Vernon 2003).

[2] Rule 803(24) has a specific trustworthiness component regarding statements against interest in criminal cases. It provides: AIn criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.@ Tex. R. Evid. 803(24).

[3] Rule of Evidence 613(a) requires in pertinent part:

In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement.

Tex. R. Evid. 613(a).