Emillio M. Montgomery v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00534-CR
Emillio M. MONTGOMERY,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-3155
Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: September 26, 2007

 

AFFIRMED

A jury found defendant, Emillio M. Montgomery, guilty of aggravated robbery with a deadly weapon and burglary of a habitation, and assessed punishment at fifty years' confinement. On appeal, defendant complains the evidence is legally and factually insufficient to support the jury's verdict. We affirm.

 

DISCUSSION

Defendant contends the evidence is legally and factually insufficient because (1) Pimental could not identify him as the perpetrator, (2) no evidence was admitted establishing the age of his fingerprint found at the scene, (3) there was no evidence placing him inside the residence, and (4) no other evidence was admitted linking him to the residence at the time of the burglary. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (same); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

On the evening of November 8, 2004, seventy-six-year-old Pearl Pimental was robbed at knife point in her home. Pimental gave the intruder $30 from her purse. The intruder forced Pimental to unlock the front door to let him make his escape. He told her he would kill her if she called police. Pimental called her children instead, who in turn called police. A police officer arrested defendant in front of Pimental's house shortly after the robbery.

At trial, Pimental testified she did not see her attacker's entire face because he covered most of his face with the blue plaid shirt he wore, but she knew he had golden-brown eyes. She admitted she could not positively identify defendant as the perpetrator, although she testified his eyes looked similar to those of her attacker. Another witness testified defendant wore a blue plaid shirt the day of the burglary. Caroline Martinez testified she saw defendant remove such a shirt and throw it in

the back of her brother's truck which was parked next to her own vehicle in the minutes prior to his arrest. Defendant was known to Martinez, who earlier in the day discovered that her vehicle had been stolen. When Martinez and her brother drove through their neighborhood to look for her car that evening, they encountered defendant, who told them he knew where her car was parked. Defendant then rode with Martinez and her brother in her brother's truck and led them to her car, which was parked on the street in front of Pimental's home. Because Martinez suspected defendant had stolen her car, she called police. A police officer responding to the auto theft call testified he arrived on the scene to find defendant hiding behind Martinez's brother's truck and that he was not wearing a shirt. The officer thought it was strange that the defendant would be shirtless on a November evening. Another officer testified he found the blue plaid shirt in the bed of Martinez's brother's pickup truck. Officers responding to the burglary call realized defendant fit Pimental's description of her attacker.

As for the fingerprint evidence, crime scene technicians discovered defendant's fingerprint on a piece of glass removed from an upstairs window. The broken window from which crime scene technicians lifted defendant's fingerprint was accessible to the public by an exterior stairway leading to a second story. However, Pimental said she did not know defendant, had never hired defendant to work on her home, and she had never invited him into her home. No other evidence was adduced to explain the presence of defendant's fingerprint on the broken window. Both the crime scene examiner and the latent print examiner concluded the location of defendant's fingerprint was consistent with someone lifting the glass up from the sides to pull the glass out of the window sill.

We conclude this evidence is legally and factually sufficient to support the jury's verdict. Therefore, we overrule defendant's issue on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

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