Gary Bernard Norwood v. The State of Texas--Appeal from 338th District Court of Harris County

Affirmed and Memorandum Opinion filed October 2, 2007

Affirmed and Memorandum Opinion filed October 2, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00754-CR

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GARY BERNARD NORWOOD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1038313

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

A jury found appellant, Gary Bernard Norwood, guilty of the felony offense of robbery and assessed punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal Code Ann. ' 29.02 (Vernon 2003). Appellant appeals his conviction, and in his sole point of error, he contends the evidence is factually insufficient to sustain the conviction for robbery. We affirm.

  Factual and Procedural Background

On the afternoon of July 30, 2005, a man wearing a dark colored Sean-John t-shirt, a motorcycle helmet, sunglasses and a do-rag, entered the Prosperity Bank at 15050 Fairfield Village Drive in Cypress, Harris County, Texas and announced he was robbing the bank. The robber ordered everyone to hit the floor and threatened to shoot them if they did not comply. He then demanded that Jennifer Flores, a Prosperity Bank employee, fill up a cardboard box with money. Feeling Flores was going too slow, the robber jumped over the teller counter and instructed Flores to hurry. In addition to two drawers of money, Flores was able to slip bait money into the robber=s box.[1] After Flores filled the box, the robber jumped back over the counter and left the bank.

The police were contacted through the use of a silent panic alarm and arrived after the suspect fled the bank. Maureen Murphey, an FBI special agent on bank robbery standby duty, also arrived at the scene. Murphey testified she interviewed each witness separately, received a copy of the bait money taken during the robbery, and then canvassed the neighborhood. While canvassing the surrounding area, Murphey located a dark blue Sean-John t-shirt in the parking lot of the Fairfield Baptist Church just less than a mile from the bank. Murphey testified one of the witnesses told her the suspect left the bank and turned to the right heading toward the side parking lot. She also testified that another officer discovered a black do-rag near the side parking lot. Both the shirt and the do-rag were collected as evidence. On cross-examination, Murphey testified none of the witnesses actually saw the robber throw the do-rag to the ground.

During the investigation of the robbery, Robert Sharp, an FBI agent with the bank robbery task force, developed a potential suspect. Sharp testified he received an anonymous tip through Crime Stoppers that appellant was the robber. After receiving the tip, Sharp put together a photo spread, which included appellant=s picture and five other pictures. Sharp testified he properly admonished each witness and then showed the photo spread to both Lea Babb, a bank employee present at the time of the robbery, and Flores. Neither witness could positively identify the robber. After the photo spread, Sharp, with the help of Detective Demetrius Lemonitsakis of the Harris County Sheriff=s Department, conducted a videotape lineup, which included appellant and four other men. Appellant=s lawyer was present at the time the lineup was conducted. Sharp showed the videotape lineup to Babb and Flores, and once again, they were unable to positively identify any of the lineup participants as the bank robber. However, Sharp also showed the videotape lineup to Cameron Giddings, another eyewitness, and Giddings identified appellant as the bank robber. Sharp did not show the photo spread or videotape lineup to any other witnesses.

On August 4, 2005, Officer Robert Pali of the Houston Police Department arrested appellant. After taking appellant into custody, Pali conducted an inventory of the property in appellant=s vehicle and located $1,017 in cash in the front seat of the vehicle underneath a wallet. Pali testified the wallet belonged to appellant. He also testified once the money was discovered, he immediately turned it over to Lemonitsakis. Lemonitsakis then turned the money over to Sergeant David Ryza with the Houston Police Department Robbery Division and asked him to compare the bills to the bait list provided by Murphey. Ryza testified five of the twenty-dollar bills provided to him by Lemonitsakis matched bills on the bait list. On cross-examination, Ryza testified he made no inquiries into whether the bait money had been disturbed before the bank robbery or whether the bait money list was up-to-date.

During trial, the State called four eyewitnesses to the stand: three bank customers and a bank employee. Flores was the bank employee who turned the money over to the robber. Flores testified the robber was an African-American man who wore a dark-colored helmet, a black or navy blue Sean-John shirt, and sunglasses. Flores also testified she never got a good look at the man because she was too scared to look at him for any length of time. She testified the reason she was so scared was because the robber asked her if she had ever been shot before and she took this to mean he would shoot her. Even after the robber jumped over the counter and stood next to Flores, she testified she did not look at him very closely or for very long. Flores stated A[i]f I looked at him too long, I would try to remember what he looked like and it scared me.@ During cross-examination, Flores admitted she did glance at the robber a few times but also said she did not concentrate on him too much. Flores was unable to positively identify anyone in both the photo spread and videotape lineup.

Mary Katherine Graves was a customer in the bank the day the robbery occurred. Graves testified as the robber approached her, she turned her head away from him. When the robber demanded everyone lie on the floor, Graves said she had a difficult time getting down because of her age. While Graves was attempting to get on the floor, she testified she glanced at the robber and saw what appeared to her was a pistol grip. She also stated once she was able to get to the ground, she crawled underneath a table and was no longer able to see the robber. Graves testified the robber wore a silver helmet with a black design on the sides, a short-sleeved t-shirt, and dark glasses but also said she was unable to get a good look at his face. The police never asked Graves to make an identification of the robber, but she admitted at trial she would not be able to make an identification based on what she saw that day. Graves stated on cross-examination she might have been able to identify the robber=s voice, but she was never asked to do so.

Cameron Giddings, a high school student, was also a customer in the bank the day the robbery occurred. Giddings testified the robber was a light-skinned, African-American man who wore a black Sean-John short-sleeve shirt, a backpack, a black pair of tennis shoes or urban wear shoes, black pants, a motorcycle helmet, a pair of black sunglasses, and a black do-rag. Giddings said he initially thought the man was joking, but once he realized it was real, he began paying close attention to the physical features of the robber. Giddings testified:

The first thing, I guess, I did was look right at him. I can=t take my eyes off him. It was surreal what was going on. I was B in that moment, I just wanted to keep watching. I just had my eyes locked on him, picking up every detail, I guess.

Giddings stated he could see the man=s nose and part of his mouth and also the skin tone of the man=s forearm. He said the way the man=s forearm hair contrasted with his skin tone stuck out to him. He also testified he saw a silver metal object which appeared to him to be the butt of a pistol. Giddings was later presented a videotape lineup at his home and identified appellant as the robber because of his nose, mouth, arm, and skin tone. The State asked Giddings during trial how positive he was the same person in the lineup was the person who robbed the bank and Giddings testified he was Aone hundred percent@ positive. Giddings also made an in-court identification of appellant and stated he was Aone hundred percent@ positive appellant was the man who robbed the bank. Giddings admitted on cross-examination the main reason he could identify appellant was because of his right arm, which Giddings thought looked unique. He also testified on cross-examination that he never said the robber had his finger on the trigger of the pistol, but the defense impeached the witness by showing an inconsistency in his testimony regarding that statement. In a previous statement, Giddings did state the robber had his finger on the trigger, but it was also established this statement was made the day of the robbery and Giddings never had a second chance to look at it nor did he swear to it.

Edward Kennedy, another customer in the bank the day of the robbery, was the fourth eyewitness who testified for the State. Kennedy testified the robber was a tall, dark-complected gentleman who had on a t-shirt, a black motorcycle helmet, sunglasses, blue rayon pants, and tennis shoes. Kennedy also testified he was standing right next to Giddings when the robber entered the bank and when the robber approached him, he got on the floor. Kennedy stated he never got a good look at the robber because he did not want to agitate him, but from where Kennedy was kneeling he had a direct view of Giddings. When asked what Giddings was doing, Kennedy stated A[h]e was basically looking right at the person. Had kind of this like grin on his face. I B I don=t know if he was nervous or what, but he was staring right at the whole thing.@ During cross-examination, Kennedy admitted appellant appeared to be a light-skinned African American, but also stated he used the description Adark complected@ because the man was dark compared to himself.

The State also called Mark Powell from the Harris County Medical Examiner=s Office who presented the DNA evidence. Powell testified he examined a t-shirt and do-rag found during the investigation of the robbery for possible DNA evidence. Powell was unable to find any DNA on the t-shirt, but he was able to develop a partial DNA profile from the do-rag. Powell compared the partial DNA profile from the do-rag to a full DNA profile taken from appellant. From the DNA comparison made, Powell testified appellant could not be excluded as a contributor of the DNA and that one in sixty black males would have the same profile. Powell admitted on cross-examination the population group used to generate the statistics was only around 400 people, but he also stated a sample of only 400 people is still highly accurate. Powell further testified on cross-examination he could not unequivocally say the DNA belonged to appellant.

The defense called only one witness to the stand: Tammy Norwood, appellant=s sister. Ms. Norwood testified appellant worked at the Greater Houston Repair Service and he made approximately $1,100 every two weeks.

Appellant was charged with aggravated robbery, but the jury found appellant guilty of the lesser offense of robbery. Because the charge was enhanced with two prior felony convictions, the jury sentenced appellant to confinement for life. This appeal followed.

Discussion

 A. Is the Evidence Factually Sufficient to Support Appellant=s Conviction?

In his sole issue, appellant contends the evidence is factually insufficient to sustain the jury=s verdict.[2] Specifically, appellant contends the evidence is factually insufficient to prove appellant was the perpetrator of the robbery because only one out of the four eyewitnesses identified appellant, Giddings did not have adequate time to observe the robber, and there was evidence contradicting Giddings=s eyewitness identification. In addition, appellant contends the evidence is insufficient because the DNA evidence produced by the State was only a partial collection and the State failed to connect appellant to the vehicle in which the bait money was found.

1. Standard of Review

In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005). The evidence may be factually insufficient in two ways. Id. at 731. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

2. The Evidence is Factually Sufficient

Initially, we address appellant=s contentions regarding the eyewitness identification. Appellant argues Giddings was the only eyewitness out of four who was able to identify appellant as the perpetrator. On the day of the robbery, Giddings gave a statement to an officer describing the robber, he later made a positive identification of appellant in a videotape lineup, and he made a positive identification of appellant during the trial. When asked how sure he was, Giddings testified he was Aone hundred percent@ positive. The inability of the other eyewitnesses to make a positive identification of appellant does not prove appellant was not the robber. See Santos v. State, 116 S.W.3d 447, 459 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). The only other eyewitness the police asked to make an identification was Flores, and she testified she was too scared to look at the robber for very long because she did not want to remember what he looked like. In addition, the police never asked Graves or Kennedy to make an identification, but Graves admitted at trial she was not able to make an identification because she did get a good look at the robber. Kennedy also admitted he did not get a very close look at the robber=s face. Giddings=s testimony standing alone is sufficient to support appellant=s conviction. See Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (stating complainant=s testimony standing alone was sufficient to support appellant=s conviction);Batts v. State, 673 S.W.2d 666, 668 (Tex. App.CSan Antonio 1984, no pet.) (stating complainant=s testimony standing alone was sufficient to sustain a robbery conviction).

Appellant also contends Giddings did not have adequate time to observe the robber and the other eyewitnesses provided contradictory evidence regarding the appearance of the robber. Appellant=s contention contravenes the well-established standard of review for a jury=s evaluation of the credibility of witnesses. The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). In addition, the jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) (en banc). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995) (en banc). Thus, the jury was entitled to believe Giddings=s testimony and make reasonable inferences therefrom, regardless of the time Giddings had to observe the robber or the conflicting testimony, if any, given by the other eyewitnesses.

Next, appellant argues the evidence is factually insufficient because the DNA evidence introduced during trial did not conclusively prove appellant was the contributor of the DNA found on the do-rag. While it is true the DNA evidence failed to conclusively corroborate appellant=s guilt, it does not weigh against the verdict. See Tinker v. State, 148 S.W.3d 666, 669 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (holding a lack of DNA or other physical evidence did not cause the evidence to be factually insufficient). The lack of physical or forensic evidence is a factor for the jury to consider in weighing the evidence. Lee v. State, 176 S.W.3d 452, 458 (Tex. App.CHouston [1st Dist.] 2004), aff=d, 206 S.W.3d 620 (Tex. Crim. App. 2006).

Last, appellant contends the evidence is factually insufficient because the State failed to produce evidence which connected appellant to the vehicle in which the bait money was found. This argument is without merit because the record reflects the State did connect the vehicle to the appellant. Pali, the arresting officer who conducted the inventory of the vehicle, testified he took appellant into custody and then inventoried the property in appellant=s vehicle. Pali also testified he found the cash in the front seat of appellant=s vehicle. On cross-examination, the defense never questioned Pali regarding ownership of the vehicle nor did the defense put on any witnesses to controvert Pali=s testimony that the vehicle belonged to appellant. Again, the jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt, 23 S.W.3d at 30; Beckham, 29 S.W.3d at 151. Thus, the jury was entitled to believe Pali=s testimony and make reasonable inferences therefrom.

Finally, appellant compares this case to Johnson v. State, 978 S.W.2d 703 (Tex. App.CCorpus Christi 1998), aff=d, 23 S.W.3d 1 (Tex. Crim. App. 2000) and argues we should reach the same conclusion. In Johnson, the Corpus Christi court of appeals found the evidence factually insufficient to support a sexual assault conviction primarily because the in-court identification of the appellant Awas not clear and unequivocal.@ Johnson, 978 S.W.2d at 707. At trial, the victim in Johnson identified the appellant in court as her assailant and stated she was positive but not one hundred percent positive. Id. at 706. When asked why she was not one hundred percent positive, she stated A[i]t was dark. I [was] blindfolded. I was so scared. He had a ski mask on most of the time. I didn=t take a look at him very good. I was just so scared.@ Id. In this case, however, Giddings made two clear and unequivocal identifications. Giddings not only stated he was Aone hundred percent@ positive about his in-court identification but he also stated he was Aone hundred percent@ positive about his videotape lineup identification as well. In addition, Giddings testified he could not take his eyes off of the robber and wanted to pick up every detail. We, therefore, do no find Johnson similar to this case.

After neutrally examining all the evidence, we hold the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. The evidence is factually sufficient to support appellant=s conviction. Accordingly, we overrule appellant=s sole issue.

  Conclusion

Having overruled appellant=s sole issue on appeal, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed October 2, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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

[1] Bait money is a specific strap of money put in each teller=s drawer, and it is only given out in the course of a robbery. Prosperity Bank=s procedure was to make copies of the bait money and keep the copies in the vault. If money is taken during a robbery and subsequently recovered by the police, it is compared to the bait money list to see if any of the serial numbers on the bills recovered match the serial number of the bills on the list.

[2] As a factual sufficiency review begins with the presumption that the evidence supporting the jury=s verdict is legally sufficient, and since appellant challenges only the factual sufficiency of the evidence, he effectively concedes the evidence is legally sufficient to sustain the conviction. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).