John Michael Weatherly v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00573-CR
John Michael WEATHERLY,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-3316
Honorable Philip A. Kazen, Jr., 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: October 31, 2007

 

AFFIRMED

John Michael Weatherly appeals his convictions for aggravated robbery and evading arrest. On appeal, Weatherly asserts five main issues: (1) the pretrial "show-up" or "one on one" identification was impermissibly suggestive and should have been suppressed; (2) the officer did not have reasonable suspicion for his initial detention and all resulting evidence, including the identification, should have been suppressed; (3) the court erred in failing to submit a requested jury instruction pertaining to the illegally obtained evidence; (4) the evidence is legally insufficient to support both convictions; and (5) the evidence is factually insufficient to support both convictions. Based on our review of the record, we overrule Weatherly's issues and affirm the trial court's judgment.

Factual & Procedural Background

On the evening of March 10, 2005, Thomas Salame had parked his brand new pickup truck on the grass just off of Broadway Street where he was roping off an area for his family to watch the Fiesta parades. His wife, Desyree Galan, arrived in a separate vehicle and parked nearby. Their young son was present with them. Salame noticed a Caucasian male and an African-American male walking by on the other side of the street; the Caucasian male called out asking whether he needed any help. Salame said "no." A short time later, as Salame was finishing up, he noticed that the same two men had crossed the street and were walking back toward him. He told Galan to take their son to her vehicle while he finished up. Galan was walking back to her vehicle with her son in her arms when the two guys brushed past her on the sidewalk; she stated that she had a bad feeling, held tightly to her purse, and deliberately looked at the guys as she passed them. When Salame looked up from tying his last knot, the two guys were right in front of him; again, the Caucasian male asked what he was doing and whether he was sure he did not need help. Salame declined, trying to make it clear that he wanted them to leave.

At that point, the African-American male pulled out a gun from his sweatshirt and stuck it in Salame's ribs, saying, "you're being jacked." Salame swatted the gun away, and the African-American male grabbed for Salame's pocket; the Caucasian male grabbed at his other pocket. Salame raised his arms and told them he had nothing, pulling his pockets out as proof. The African-American male then pointed the gun at Galan and their son, saying, "tell your bitch to hurry up and get over here before I kill her, before I kill you." Galan turned her back and continued putting their son in the backseat of the vehicle. Salame told them he only had a cell phone and car keys, and to take them. The African-American male was becoming agitated and walked closer to Salame, while trying to cock the gun. The Caucasian male looked "surprised" when the gun was being cocked. Salame was afraid he was going to be shot. The Caucasian male then grabbed the car keys, ran to Salame's pickup truck and jumped into the driver's seat. The African-American male grabbed Salame's cell phone and wallet (with only his identification, no money), and slowly backed up into the passenger seat of the truck, still pointing the gun at Salame. The Caucasian male then sped off in the truck, excitedly screaming, "yeah!" The African-American male continued to point the gun out the truck window as they drove away.

Salame then ran to his wife's vehicle and jumped in the driver's seat; his wife had already dialed 911 and was talking to the dispatcher. Salame proceeded north on Broadway, chasing the men in his stolen truck. At one point, the African-American male pointed the gun out the window, trying to slow Salame down as the chase wove in and out of side streets. The stolen truck and Salame's vehicle both jumped some railroad tracks near the SBC Center, (1) causing both vehicles to become airborne. As the vehicles landed on the other side of the tracks, an officer in a parked patrol car saw them. Salame stopped and told the officer that he had been carjacked; the officer then joined the chase. Salame continued to follow the police chase. Several more police vehicles joined the high speed chase, winding through alleys and streets, before the suspects wrecked the stolen truck; they then abandoned the truck and fled on foot near the SBC Center. Meanwhile, Salame had pulled into a convenience store parking lot where he gave Officer Mauricio a description of the two suspects, which the dispatcher broadcast over the police radio. A short time later, two officers detained an African-American male and a Caucasian male as they walked down the street in front of the SBC Center; there was no activity at the SBC Center that night, and no one else was in the area. Salame and Galan were driven to a well-lit parking lot near the SBC Center where they positively identified the two suspects in separate one-on-one identifications. The African-American male was processed as a juvenile, (2) and the Caucasian male, John Weatherly, was indicted for aggravated robbery as a party and for evading arrest. A jury convicted Weatherly of both offenses, and the court sentenced him to life imprisonment based on his plea of true to enhancements for two prior felony convictions. Weatherly timely appealed.

Pretrial Identification Procedure

In his first and second issues, Weatherly contends the trial court erred in denying his motion to suppress the identification testimony because it was obtained in violation of the federal and state constitutions. Specifically, he asserts the one-on-one identification procedure, or "show-up," was impermissibly suggestive and created a substantial likelihood of misidentification, i.e., was not reliable. Weatherly's written motion to suppress only raised a due process claim under the 14th Amendment to the United States Constitution, and he did not reference the Texas Constitution at the suppression hearing; therefore, his appellate issue under the Texas Constitution's due course of law provision was not preserved. Tex. R. App. P. 33.1(a); Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002).

Standard of Review. In reviewing a trial court's denial of a motion to suppress, we apply a bifurcated standard of review, affording almost total deference to the trial court's determination of historical facts that the record supports, especially when the fact findings are based on an evaluation of the witnesses's credibility and demeanor, but reviewing the court's application of the law to the facts de novo. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We review a ruling based on a mixed question of law and fact de novo. Guzman, 955 S.W.2d at 89. Whether an impermissibly suggestive pre-trial identification tainted a witness's in-court identification presents a mixed question of law and fact, which is subject to de novo review. Loserth v. State, 963 S.W.2d 770, 773-74 (Tex. Crim. App. 1998) (noting that reviewing court should consider the reliability factors, which are issues of historical fact, deferentially in a light favorable to the court's ruling and then weigh the factors de novo against "the corrupting effect" of the suggestive pretrial identification procedure). Here, the trial court did not make explicit findings of fact with respect to the identification procedure; therefore, we review the evidence in the light most favorable to the court's ruling and assume implicit findings of fact that are supported by the record. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).

Applicable Law. An in-court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial identification procedure. Loserth, 963 S.W.2d at 771-72. We will briefly summarize the identification testimony admitted at trial. Salame testified that he positively identified the two suspects shown to him on the night of the robbery as the perpetrators. Salame was unable to make an in-court identification of Weatherly as he appeared at the time of trial; however, he did identify Weatherly's booking photo from that night, admitted as State Exhibit #30, as the Caucasian male who robbed him and that he identified that night as being involved in the robbery. Galan also testified that she positively identified the two suspects that night as the robbery participants; in addition, she made an in-court identification of Weatherly as the Caucasian male involved in the robbery. Galan also identified Weatherly as the person depicted in the booking photo (State Exh. #30). Finally, several police officers also made in-court identifications of Weatherly as the suspect who was identified by Salame and Galan during the pretrial show-up, and testified that Weatherly's booking photo (State Exh. #30) was the same person who was identified at the pretrial show-up and the same person as the defendant present in court. One of the officers stated that Weatherly's appearance had changed since the night of the offense, primarily because he had gained weight and had "cleaned up" and shaved off his facial hair.

A "show-up" differs from a line-up in that it involves the presentation of a single individual suspect fitting the description to the victim for identification, rather than having a group of individuals generally fitting the suspect's description line up for identification by the victim. See United States v. Hefferon, 314 F.3d 211, 217 (5th Cir. 2002). Despite the danger inherent in a "one man show-up," the identification procedure does not necessarily violate due process. Neil v. Biggers, 409 U.S. 188, 199 (1972) (rejecting a per se approach to show-up identifications, and holding that suggestive identification procedures do not violate due process if, on balance, the relative reliability of the show-up guards against the likelihood of misidentification). Even if an identification procedure is unduly suggestive and unnecessary, the admission of identification testimony does not violate due process as long as the identification possesses "sufficient aspects of reliability." Garza v. State, 633 S.W.2d 508, 512-13 (Tex. Crim. App. 1982) (citing Biggers, and noting that while an on-the-scene confrontation has some degree of suggestiveness, it is useful and necessary in many situations as it tests the witness's recollection while his memory is still fresh and accurate, expedites the release of innocent suspects and enables the police to continue their search while the criminal is still within the area and before he can substantially alter his looks and dispose of evidence of the crime).

When a one-on-one identification is challenged as violating due process, we review the facts of the case to determine whether "the identification 'was so impermissibly suggestive' as to give rise to a very substantial likelihood of irreparable misidentification." Hefferon, 314 F.3d at 217-18 (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)); Loserth, 963 S.W.2d at 772. The defendant bears the burden of establishing that the pretrial identification procedure was impermissibly suggestive and that the in-court identification is unreliable. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993) (noting a two-step analysis is applied). The reliability of the identification is assessed in view of the totality of the circumstances and in consideration of the following non-exclusive Biggers factors: (1) the witness's opportunity to view the suspect; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description; (4) the witness's level of certainty at the confrontation; and (5) the length of time between the crime and the confrontation. Hefferon, 314 F.3d at 217 (citing Biggers, 409 U.S. at 199); Loserth, 963 S.W.2d at 772. The reviewing court then de novo weighs the Biggers factors of reliability against "the corrupting effect" of the suggestiveness of the pretrial identification procedure, in light of the totality of the circumstances. Loserth, 963 S.W.2d at 773-74; Delk, 855 S.W.2d at 706 (identification testimony is admissible if indicia of reliability outweigh apparent corrupting effect of suggestive pretrial procedure).

Application to Facts. Detective Doyle testified that he followed standard police procedures to reduce the suggestiveness of the one-on-one identification process, including conducting the procedure in a well-lit area, keeping the witnesses in separate patrol cars, bringing out each suspect and each witness separately for the viewing, and instructing the witnesses that the police had stopped these suspects, but did not know whether they were involved in the crime yet, and asking the witnesses to tell him if these were the people involved. Both Salame and Galan denied that the detective told them the suspects were "pulled from your truck" or that the police "had found them" or believed these suspects were the perpetrators. Both Salame and Doyle testified, however, that Salame's identification of both suspects at the show-up was so loud and "exuberant" that it was possible that Galan heard him before she made her identifications. Salame admitted that he was yelling at Weatherly during the show-up and that Detective Doyle "got upset" with him, telling him to calm down and "don't say nothing." Doyle conceded it was "possible" that Galan heard Salame yelling "that's him" before she identified Weatherly, even though she was in another patrol car with the windows rolled up approximately ten feet away.

Weatherly argues on appeal that the fact that Salame yelled so loudly when he positively identified Weatherly that it was "likely" Galan overheard him, along with other factors, made the show-up procedure impermissibly suggestive and negated the objective procedures employed by Detective Doyle and the reliability of the witnesses's identification. The other factors cited by Weatherly, such as that Salame and Galan "already knew" the police suspected the two men presented were the perpetrators, that Weatherly was shown second as part of a pair of suspects, one Caucasian and one African-American, that he may have been handcuffed when shown, and that his hair bore the indentations from wearing a cap, all pertain to the suggestiveness of the procedure. (3) Even assuming arguendo that the one-on-one identification procedure was impermissibly suggestive, we conclude that any "corrupting effect" was outweighed by the strong presence of the Biggers factors showing reliability of the witnesses's pretrial identification.

Applying the Biggers factors, (4) the record shows that Salame and Galan had ample opportunity to view both participants up close before and during the aggravated robbery. Just prior to the robbery, Galan passed so close to the men on the sidewalk that they almost touched shoulders. During the robbery, Salame was close enough to both participants for them to converse about what he had that was worth stealing, for each man to reach out and grab one of his pockets, and for B.H.S. to push the gun into his ribs; he stated that when he looked up the men were "right there" in front of him. As to the degree of attention paid by the witnesses, Salame testified that he "got a good look" at the two guys during the robbery, and paid attention to them beginning with the first time they walked by on the opposite side of the street because he was suspicious of their motives. While Galan's encounter was brief, she stated that she intentionally looked at both men's faces because she was suspicious of their intentions, and, in particular, she distinctly noticed and remembered Weatherly's eyes.

Further, the prior description given by Salame to Officer Mauricio was accurate in that he described the "white male" as being taller than the "black male," skinny, looking "grungy" and not clean cut, and wearing a white faded polo shirt and a cap, with long hair coming out of the cap. Salame stated the "white male" he identified in the parking lot was "grungy" and not clean shaven, with the same "wild" hair which showed an indentation from the cap that had been removed for the show-up. Galan had described the Caucasian suspect as a "white male" who was older than the "black male," and who was "real rugged looking," which also proved to be accurate. The only details that Officer Mauricio could remember about Salame's description of the Caucasian male was that he was wearing a cap and had long blonde hair, both of which proved to be accurate. In addition, the booking photograph taken of Weatherly that night, and admitted into evidence as State Exhibit #30, matches the descriptions given by Salame and Galan. Both Salame and Galan were immediately certain and made positive identifications of both suspects as the men involved in the robbery; Detective Doyle confirmed that both eyewitnesses made immediate, positive identifications. Finally, the time that elapsed between the robbery and the identifications in the field was not excessive, being at the most two hours; Salame stated the robbery occurred about 8:00 p.m. as the sun was setting; Galan stated it was dark and "getting late" when the two men approached; Officer Gonzalez stated he joined the chase at about 10:00 p.m.; Detective Doyle stated the one-on-one identification occurred at about 10:00 p.m.; and the record shows that Salame gave his statement to police at approximately 11:00 p.m. See Hefferon, 314 F.3d at 218 (finding gap of one to two hours "minimal"). Doyle stated that police policy is to use a one-on-one procedure only when a suspect is apprehended within a short time after the crime, a period of one and one-half to two hours.

In light of the totality of the circumstances, and considering the factors raised by Weatherly, we hold that the strength of the Biggers reliability factors in this case outweighs any corrupting influence created by any undue suggestiveness of the identification procedure; therefore, the trial court did not err in denying the motion to suppress. See Loserth, 963 S.W.2d at 773-74; see also Garza, 633 S.W.2d at 512-13. Weatherly's issue is overruled.

Reasonable Suspicion for Investigative Detention

In his second main issue, Weatherly argues the officer did not have reasonable suspicion to conduct the investigative detention, and the trial court thus erred in denying his motion to suppress the evidence obtained as a result of his detention, which includes the identification evidence. Although Weatherly raises two separate issues under the federal and state constitutions, he again failed to preserve his issue under the Texas Constitution by not raising it in the trial court. See Tex. R. App. P. 33.1(a); Hailey, 87 S.W.3d at 122.

Standard of Review. The same standard of review discussed supra applies to the court's denial of Weatherly's motion to suppress based on a lack of reasonable suspicion for the investigative detention. See Carmouche, 10 S.W.3d at 327; see also Guzman, 955 S.W.2d at 87 (reasonable suspicion review is a mixed question of law and fact which is reviewed de novo). We give almost total deference to the trial court in determining what the actual facts are, and then review de novo whether those facts are sufficient to give rise to a reasonable suspicion. Guzman, 955 S.W.2d at 87; Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).

Analysis. In denying Weatherly's motion to suppress, the trial court stated, "I have found that the officer did have specific articulable facts which justified his reasonable suspicion, justified the detention, and then further justified the taking of the defendant for his ultimate identification." The trial court then made the following findings of fact on the record in support of reasonable suspicion: (1) the defendant was in a location in "very, very, very close proximity to where the other suspect was found;" (2) he was around the SBC Center "when nothing else was happening" there; (3) no one else was around - he was the only other person on the street; (4) he was "sweaty . . . and breathing heavily as if he had been in a chase or had been running;" (5) he had mud and grass on his shoes and person; (6) he gave conflicting stories when questioned about why he was there and where he was going; and (7) the "suspect was described as having a hat or cap." The State asserts these findings show the officer had sufficient objective, articulable facts to support the investigative detention. We agree.

An officer may conduct a temporary investigative detention, or "Terry stop," when he has a reasonable suspicion to believe that an individual is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 21 (1968); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (noting the lower standard of reasonable suspicion to permit brief detentions was deemed a necessary tool to aid law enforcement in preventing imminent crimes and stopping ongoing crimes). The officer must have specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude the person is, has been, or soon will be engaged in criminal activity. Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005). There must be an objective basis for the stop; the subjective intent of the officer is irrelevant. Garcia, 43 S.W.3d at 530; Woods, 956 S.W.2d at 35 (noting the facts must amount to something more than "an inchoate and unparticularized suspicion or hunch"). The reasonable suspicion determination is made by considering the totality of the circumstances. Garcia, 43 S.W.3d at 530.

At the suppression hearing outside the jury's presence, Officer Sanchez testified to the following objective facts that formed the basis for his investigative detention of Weatherly: (1) he had heard radio dispatches stating that police were involved in a vehicle pursuit, and later heard that officers were chasing the two individuals on foot in the area of the SBC Center; (2) when he arrived in the area, he heard a dispatch that one of the two suspects had been detained, and he personally saw that an officer had detained one person on East Houston Street by the SBC Center; (3) he saw another individual walking down the same street not far from where the suspect was detained; (4) the person was wearing a cap and based on the dispatch descriptions of the suspects he had heard, "the thing that stuck out with me was the cap;" and (5) there was no activity at the SBC Center, no bus in the area, and no other people in the area. Sanchez stated he found the combination of all these circumstances suspicious and decided to stop the person. We conclude these facts amount to more than an unparticularized suspicion or hunch, and form an objective, articulable basis for a reasonable suspicion that Weatherly was involved in a criminal offense. See Garcia, 43 S.W.3d at 530; Woods, 956 S.W.2d at 35.

In its findings in support of its denial of the motion to suppress, the trial court included additional factors developed during Sanchez's trial testimony. Specifically, Sanchez testified that when he first approached Weatherly he immediately noticed that he was sweating although it was a cool evening, and he knew the two suspects had been running from officers. Sanchez also noticed that Weatherly's clothes and shoes had grass on them, which was consistent with the suspects having run through a creek area as he had heard on a dispatch. In addition, after Sanchez explained to Weatherly why he was detaining him and placed him in the patrol car, Weatherly gave conflicting stories about going to see his girlfriend and where she lived. These additional findings by the trial court further bolstered its conclusion that Sanchez had reasonable suspicion to detain Weatherly, but, as noted supra, they were not necessary to its ruling as sufficient facts establishing reasonable suspicion were developed during Sanchez's testimony outside the jury's presence. Having concluded that the trial court did not err in denying his motion to suppress, we overrule Weatherly's issue.

Failure to Submit Jury Instruction Under Article 38.23

In his fifth issue, Weatherly argues the trial court erred in refusing to submit a requested jury instruction under article 38.23, providing that the jury should disregard any evidence illegally obtained by law enforcement. (5)

Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). The State argued, and the trial court agreed, that no factual dispute existed concerning the reasons for the investigative detention, and thus the manner in which the identification evidence was obtained, and that Weatherly was therefore not entitled to the jury instruction. Weatherly requested the proposed instruction in writing and during the charge conference, preserving the issue for review.

Analysis. A defendant is entitled to a jury instruction under article 38.23 only if the trial evidence creates a factual dispute about how the evidence was obtained, i.e., whether it was obtained illegally. Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004); Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996). A fact issue about whether evidence was legally obtained may be raised from any source, and the evidence may be "strong, weak, contradicted, unimpeached, or unbelievable." Garza, 126 S.W.3d at 85. There is no issue for the jury when the question is one of law only, such as whether undisputed facts constitute probable cause or reasonable suspicion. See Pierce v. State, 32 S.W.3d 247, 251-52 (Tex. Crim. App. 2000); see also Davy v. State, 67 S.W.3d 382, 388 (Tex. App.--Waco 2001, no pet.) (if officer had reasonable suspicion to stop defendant, then his "seizure" did not violate defendant's Fourth Amendment rights, and the evidence acquired as a result of the stop would not be excludable under article 38.23).

At trial, Officer Sanchez summarized the reasons he detained Weatherly as: (1) he was wearing a cap "as on the radio dispatch;" (2) the dispatch stated police were chasing two individuals in the area, and he saw one person was already being detained just down the same street; (3) the second person was there on the same street; (4) there was no activity at the SBC Center, and there were no other people in the area; and (5) he found the combination of all these circumstances suspicious. Sanchez further testified that he initially heard a radio dispatch for a "high speed pursuit after a reported aggravated robbery," and later heard the suspects were fleeing on foot in the area of the SBC Center. He drove to the area because it was on his way and he heard on the radio that an officer had detained one suspect by the SBC Center; he slowed and asked the officer with the suspect whether he needed assistance. After receiving an "ok" sign, he continued driving down the street past the SBC Center and noticed an individual walking down the street wearing a cap. Sanchez testified that "because of the cap he was wearing" he decided to "go up and identify the individual." He drove up and called him over, stepping out of his patrol car; he conceded the person was not free to ignore his request. Sanchez noticed the person was "soaking in sweat" even though it was a cool evening; he knew the two suspects had been running from officers. Sanchez stated he decided to detain the suspect at that time. He further stated that he also noticed the person had grass on his back and shoes; he knew from a dispatch that the suspects had run through a creek area. At that point, Sanchez stated he identified himself to the suspect and explained why he was detaining him; he placed him in his patrol car. Afterward, Sanchez questioned the suspect about where he was going, and the suspect stated "to my girlfriend's house," but when he explained where she lived Sanchez told him he was headed the wrong way. Sanchez's testimony about the detention of Weatherly was uncontroverted.

On appeal, Weatherly argues that a contested fact issue concerning the detention was raised because there was "inconsistent testimony" regarding what Officer Sanchez knew before he detained Weatherly. Specifically, Weatherly claims the trial testimony was inconsistent about (1) what type of cap the Caucasian suspect was wearing, and (2) whether Sanchez had heard a description of the Caucasian suspect before the detention. In support of his contention regarding the type of cap, Weatherly cites to Officer Mauricio's testimony that she broadcast a description of the suspects, the details of which she no longer recalled, except that it included a cap and long blond hair for the Caucasian suspect. She stated that other officers radioed back to determine what type of cap, asking, "is it a ball cap?" and that Salame replied to her, "yes, that's him." Weatherly's other record citation referring to the type of cap was testimony given outside the jury's presence. None of the other officers testified before the jury about the broadcast description of the Caucasian suspect. Regarding whether Sanchez had heard a description of the Caucasian suspect before the detention, Weatherly cites the testimony by Officer Woodward, who detained B.H.S., that he only heard the radio description of one suspect, the African-American suspect; however, Woodward explained that it was because he had switched over the radio channel, stating, "I'm sure they put the other one out, but by the time I switched, I only heard the one description."

Our review of the record does not reveal inconsistent trial testimony before the jury concerning what Sanchez knew before he detained Weatherly. Further, the testimony cited by Weatherly does not show the existence of a controverted fact concerning the grounds for the detention. "That appellant 'disagrees with the conclusion that probable cause was shown as a matter of law' is not the same as appellant controverting the facts." Garza, 126 S.W.3d at 86 (quoting Luna v. State, No. 03-97-00605-CR, 1999 WL 11183, at *6 (Tex. App.--Austin, Jan. 14, 1999, pet. ref'd) (not designated for publication)). Here, the issue of whether Weatherly's detention was legal was a question of law, as the essential facts concerning reasonable suspicion were not in dispute. See id. Therefore, we hold the trial court did not err in refusing to give an article 38.23 jury instruction.

Sufficiency of the Evidence

In his sixth and seventh issues, Weatherly asserts the evidence is legally and factually insufficient to support his aggravated robbery conviction because (1) the evidence is insufficient to prove his identity as one of the perpetrators, and (2) even if his identity was proved, the evidence was insufficient to prove that as a party he was criminally responsible for the aggravating element, i.e., the other actor's use of a deadly weapon during the robbery. Finally, in his eighth and ninth issues, Weatherly challenges the legal and factual sufficiency of the evidence to support his conviction for evading arrest.

Standards of Review. In determining the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony; therefore, reconciliation of any conflicts in the evidence is within the exclusive province of the jury. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). A jury is also permitted to make reasonable inferences from the evidence. Id. at 254-55.

In reviewing the factual sufficiency of the evidence, we consider all the evidence in a neutral light and set aside the conviction only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). There are two ways in which the evidence may be factually insufficient, when the evidence in support of the conviction, although legally sufficient, is "so weak" that the conviction is "clearly wrong and manifestly unjust," or when, considering the conflicting evidence, the conviction is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15. Our evaluation of the evidence should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

Aggravated Robbery - Conviction as a Party. As applied to this case, the elements of aggravated robbery are: (1) a person (2) in the course of committing theft (3) with intent to obtain or maintain control of property (4) intentionally or knowingly (5) threatens or places another in fear of imminent bodily injury or death, and (6) uses or exhibits a deadly weapon. Tex. Penal Code Ann. 29.02(a)(2), 29.03(a)(2) (Vernon 2003) (person commits aggravated robbery if he commits robbery and uses or exhibits a deadly weapon). A person may be convicted as a party if the offense is committed by the conduct of another for which he is criminally responsible. Id. 7.01(a) (Vernon 2003). A person is criminally responsible for the conduct of another if "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense . . . ." Id. 7.02(a)(2) (Vernon 2003). Mere presence of a person at the scene of a crime either before, during or after the offense, or even flight from the scene, without more, is insufficient to sustain a conviction as a party to the offense; however, combined with other incriminating evidence it may be sufficient to sustain a conviction. Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985). In determining whether a defendant participated as a party in the commission of an offense, the jury may consider events that occurred before, during or after the offense, and may rely on acts that show an understanding and common design. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (opin. on reh'g); Barnes v. State, 56 S.W.3d 221, 238 (Tex. App.--Forth Worth 2001, pet. ref'd) (agreement to act together in a common design is seldom proven by direct evidence, but by circumstantial evidence). Evidence is legally sufficient to convict under the law of parties when the defendant is physically present at the commission of the offense and encourages its commission by acts, words or other agreement. Ransom, 920 S.W.2d at 302; Barnes, 56 S.W.3d at 238.

On appeal, Weatherly argues the identification evidence should have been suppressed and, alternatively, was insufficient to place him at the scene, and further argues the evidence was insufficient to prove he was criminally responsible for the other actor's use of a deadly weapon during the robbery.

Identification Evidence. Weatherly first argues the identification evidence from Salame and Galan should have been suppressed due to his illegal detention and the suggestive pretrial identification procedure. We have already rejected these arguments. The trial testimony of Salame and Galan identifying Weatherly as one of the robbers based on his booking photo from that night and Galan's identification of Weatherly in court, plus their testimony that they were both positive of their pre-trial identifications of Weatherly, and the testimony by police officers identifying the booking photo as Weatherly and identifying him in court as the Caucasian male suspect was legally and factually sufficient to support the jury's finding that Weatherly was the other person present at the commission of the robbery.

Criminal Responsibility for Use of Deadly Weapon. Weatherly argues that because there was no communication between him and B.H.S. during the robbery, and he did not participate in the display of the weapon, the evidence was insufficient to hold him criminally responsible for the aggravating use of the gun. To the contrary, we conclude the record evidence is legally and factually sufficient to support a finding that Weatherly was more than an unwilling participant, or merely the getaway driver, and encouraged the aggravated robbery, including the display of a gun, by acts indicating his understanding and agreement. See Ransom, 920 S.W.2d at 302. Salame testified that Weatherly was the one who initiated the contact with him and did the talking at first. Salame and Galan both testified that Weatherly was standing there when B.H.S. pulled the gun out and pointed it at Salame while demanding his money; B.H.S. also verbally threatened to kill Salame and Galan. Weatherly grabbed at one of Salame's pockets while the gun was displayed, and Weatherly was the one who grabbed the car keys, was seen by Galan rummaging through the truck, and was seen by both driving the stolen truck away as he excitedly exclaimed, "yeah!" and as B.H.S. continued to point the gun out of the window at Salame.

As to Weatherly's argument that his facial expression indicated his "surprise" at the display of the gun and his lack of intent to participate in an aggravated robbery, Salame in fact testified that it was only when B.H.S. stepped forward and began trying to cock the gun "like he was really going to shoot me," that Weatherly looked "surprised." Salame said it appeared to him that Weatherly was "there just to rob," and did not intend to shoot, and that both Weatherly and B.H.S. had a look on their face during the robbery that they "weren't messing around, that they're serious." Salame affirmatively stated that Weatherly did not look surprised when B.H.S. pulled the gun out and threatened him with it. Even though Salame eventually conceded on cross examination that it was "possible" that Weatherly was "not a part of what the black guy was doing," he immediately stated in his next answer that, "the white guy took the keys and jumped in the car 'like he was part of it.'" Based on our review of the record, we conclude the evidence is legally and factually sufficient to support Weatherly's conviction of aggravated robbery as a party.

Evading Arrest - Conviction as Primary Actor. A person commits the offense of evading arrest if he "intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him." Tex. Penal Code Ann. 38.04(a), (b)(2)(A) (Vernon 2003) (providing the offense is a third degree felony if the actor uses a vehicle and has been previously convicted of evading arrest). Weatherly was charged and convicted as the primary actor in the evading arrest offense. Again, Weatherly argues the identification evidence was tainted by the illegal detention and suggestive procedure and should have been suppressed; as noted, those issues have been rejected, supra. He further asserts that the evidence was insufficient to show he was the driver of the truck during the pursuit.

In addition to the identification evidence discussed above, both Salame and Galan testified that "the white male" was the one who drove the stolen truck away, and that they began following the truck immediately in a high speed chase. Officer Gonzalez was the first officer to notice the suspect truck, and he joined the chase in front of Salame in a marked patrol car with the lights and sirens on; he followed about a half block behind the truck and it never stopped; two other marked police vehicles joined the chase with their lights and sirens on. Officer Gonzalez testified he saw that it was a "white male" driving the truck; the other officers did not see who was driving. Officer Casiano testified that his vehicle was about 20 feet behind the truck, and at one point during the pursuit the truck stopped, his vehicle ran into the back of the truck, and the two vehicles became stuck together; his lights and siren remained on while his patrol car was attached to the truck's bumper; the driver of the truck kept rocking forward and back until the vehicles separated and the truck then took off again, driving on its wheel rim. The officers consistently testified the driver of the truck was "trying to lose us," making "zigzagging" turns like a "figure 8." After the truck wrecked, both suspects continued fleeing on foot and the police lost sight of them until the two individuals were separately detained in front of the SBC Center. This record evidence is legally and factually sufficient to support a reasonable inference and finding that Weatherly intentionally fled from a person he knew was a police officer lawfully attempting to detain him, and thus to support his evading arrest conviction.

Based on the foregoing reasons, we overrule Weatherly's issues on appeal and affirm the trial court's judgment.

Phylis J. Speedlin, Justice

Do Not Publish

1. The SBC Center has been renamed the AT&T Center; however, because both sides refer to it as the SBC Center, we will also use that term.

2. He will be referred to hereafter as "B.H.S."

3. Weatherly's other argument that the evidence showed Salame and Galan were in a state of psychological distress immediately prior to the show-up identification goes to the credibility and weight of their testimony, not its admissibility.

4. See Biggers, 409 U.S. at 199 (listing five reliability factors as: opportunity to view suspect, degree of attention, accuracy of witness's prior description, level of certainty at confrontation, and length of time elapsed).

5. Article 38.23 provides in pertinent part:

 

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

 

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

 

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).