Jesse Casias v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION

No.04-02-00710-CR
Jesse CASIAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No.2002-CR-2148
Honorable Sharon MacRae, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 17, 2003

AFFIRMED

A jury found Jesse Casias ("Casias") guilty of aggravated robbery and assessed punishment at ninety-nine years confinement. In two issues, Casias challenges the legal and factual sufficiency of the evidence. We affirm the judgment of the trial court.

Background

Jesse Rodriguez ("Rodriguez") was making a pizza delivery to the home of John Gomez ("Gomez") when a group of men, including Casias, approached him and demanded his money at gunpoint. Gomez heard a commotion and went outside to investigate. He witnessed two men beating Rodriguez and attempted to stop the attack. Rodriguez was struck in the face by Casias, and another member of the group attacked Rodriguez with a stick. Within minutes, the police arrived and apprehended Casias. Both Rodriguez and Gomez identified Casias as one of the attackers.

Analysis Casias asserts that the testimony of the two eyewitnesses is not credible and, therefore, the evidence is legally and factually insufficient to support his conviction. He argues that Rodriguez had his credibility impeached by prior convictions for both a felony and a misdemeanor involving moral turpitude. In addition, he contends that Rodriguez's view of his attackers was obstructed. Finally, Casias argues that Gomez improperly identified him because Gomez was biased, he made the identification only because he saw Casias detained in the back of the police car, and because Gomez had been drinking on the night of the attack.

We review the sufficiency of the evidence under the appropriate standards of review. See Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The jury may draw reasonable inferences and is the exclusive judge of the witnesses' credibility and the weight given to their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

Five factors are considered when evaluating the likelihood of misidentification: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Barley v. State, 906 S.W.2d 27, 34-35 (Tex. Crim. App. 1995).

With regard to the present case, the evidence shows that both Rodriguez and Gomez had ample opportunity to view Casias at the time of the crime. Both witnesses were more than just casual observers of the crime. Rodriguez saw Casias before he assaulted him and Gomez testified that he witnessed Casias attacking Rodriguez. Gomez also testified that the area was well lit at the time of the attack which suggests their ability to recognize him was not affected because it was nighttime. In addition, because of their personal involvement, both Rodriguez and Gomez were more than casual bystanders. Therefore, one could conclude their attention to detail was heightened. See Cantu v. State, 738 S.W.2d 249, 253 (Tex. Crim. App. 1987) (a witness who is also a victim has a greater degree of attention than a casual bystander).

Although it was undisputed Gomez had been drinking when he identified Casias, there was no evidence that he was intoxicated or lacked the mental ability to make a proper identification. Moreover, Casias' other complaints about being identified while in the back of the police car or that Rodriguez's view was somehow obstructed are also without merit. Both witnesses testified they could clearly identify Casias as one of the attackers. Casias was not wearing a mask and there was sufficient light to observe him. Furthermore, very little time had passed between the time Casias attacked Rodriguez and when he was positively identified. Therefore, it was unlikely Casias was misidentified or his identification was tainted. See Wallace v. State, 75 S.W.3d 576, 584 (Tex. App.--Texarkana 2002) aff'd 106 S.W.3d 103 (Tex. Crim. App. 2003).

The weight to be afforded Rodriguez's and Gomez's testimony lies within the sole province of the jury because resolution of the issue turns on an evaluation of witness credibility and demeanor. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Though authority may vest an appellate court with some limited ability to assess witness credibility, we are not a thirteenth juror. Blankenship v. State, 780 S.W.2d 198, 207 (Tex. Crim. App. 1989). In viewing the evidence in the light most favorable to the verdict we conclude that the evidence supports the conviction. See McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). Additionally, the jury's verdict was not so against the great 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). Accordingly, we affirm the trial court's judgment.

Phylis J. Speedlin, Justice

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