Kassan Khalid Morgan v. The State of Texas--Appeal from Criminal District Court 3 of Dallas County of Dallas County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00166-CR

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KASSAN KHALID MORGAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 3

Dallas County, Texas

Trial Court No. F-0453120-LJ

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Kassan Khalid Morgan was convicted in a trial to the court of aggravated robbery of an elderly person. // He pled true to an enhancement paragraph of the indictment alleging one prior felony conviction. The trial court assessed Morgan's punishment at twenty years' imprisonment and sentenced him accordingly. Morgan appeals, // contending in a single point of error that the evidence is factually insufficient to prove his identity. We affirm.

The State's evidence showed that, at around 7:00 o'clock on the morning of June 17, 2004, Chausie Springfield, age seventy-four, was waiting for a bus to take her to work. She testified that, while at the bus stop, a man wearing a black head scarf, a white undershirt, and black jeans walked up to her, "snatched" her "stick" from her and said, "If you don't give me that purse, I'm going to take it." She did not; he did, and in the process, caused Springfield's arm to bleed, caused her pain, and placed her in fear of imminent bodily injury. The man fled with her purse, jumping over a nearby fence. Springfield's purse contained $40.00 in bills, about $3.00 in change, her house keys, Medicare card, identification card, and voter registration card.

Rodrick Roddy, an Army reservist, testified that, on the occasion in question, he was driving his vehicle in the far right lane of the street where the bus stop is located. Roddy observed, through an open window on the passenger side of his vehicle, a man forcibly take a lady's purse from her and run away. Roddy circled the block unsuccessfully looking for the assailant. Roddy then called 9-1-1 and reported the robbery. In his description of the assailant to the 9-1-1 operator, and later to the police, Roddy described the man as wearing a black "do rag" or scarf on his head, a white "tank top" shirt, black jean shorts, and white shoes. Approximately fifteen minutes after Roddy called 9-1-1, the police arrived at the scene. They apprehended Morgan and took Springfield to where Morgan was being held. While still in the officer's vehicle, Springfield identified Morgan as the man who robbed her.

Both Springfield and Roddy identified Morgan in court as the person who robbed Springfield. Springfield testified twice that she was "100 percent" sure Morgan was the robber.

Morgan testified on his own behalf, stating that, on the date in question, he lived and worked near the location where the robbery occurred. He further testified that, on the morning of the robbery, he was sitting a couple of blocks away, talking to a person about getting work. He said that is where the police arrested him, and that he was wearing a white "muscle" shirt, blue jeans, and burgundy-colored shoes. He testified that, at the time of his arrest, he did not have any currency, did not have a Medicaid card on him, and did not have a purse. Morgan testified he did not rob Springfield. Morgan admitted on cross-examination he had previous convictions for theft, robbery, drugs, and family violence.

In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex. Crim. App. 2004)). If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

Morgan contends the evidence in this case is insufficient to prove guilt beyond a reasonable doubt because Springfield testified the offense occurred in only a few seconds, that the robber was a stranger, and that the assailant immediately fled. He further contends her identification was bolstered by her viewing of him when police arrested him and took him to her house for a one-man show-up identification. He contends Roddy's identification is likewise insufficient because Roddy was in a moving car when he observed the occurrence. Morgan further contends the prosecutor's action of standing behind Morgan at trial when asking for an in-court identification served to diminish the credibility of both witnesses' in-court identifications.

Morgan made no objections at trial to the identification procedures used by the police or the prosecutor, and such procedures are not raised as separate issues in this appeal. As such, Morgan's argument on appeal concerns only the weight and credibility of the evidence establishing his identity as the robber.

The trial court, as trier of fact, is the sole judge of the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). What weight to give a witness' identification testimony is therefore within the sole province of the fact-finder, because it turns on an evaluation of credibility and demeanor. See Cain v. State, 958 S.W.2d 404, 408 09 (Tex. Crim. App. 1997). Whether the viewing of Morgan by Springfield or Roddy was too brief, or insufficiently clear, was for the fact-finder alone to determine. Whether the one-man show-up, or the prosecutor's (improper, but unobjected-to) action of standing behind the defendant when asking Springfield and Roddy to identify Morgan influenced the witnesses' identification of Morgan as the robber was likewise for the fact-finder to determine.

It is well-established that a conviction may be based on the testimony of a single eyewitness. Lewis v. State, 126 S.W.3d 572, 575 (Tex. App. Texarkana 2004, pet. ref'd). Here, two eyewitnesses testified that Morgan was the person who robbed Springfield. This testimony was not too weak to support a finding of guilt beyond a reasonable doubt, and there is no contrary evidence of identity that is so strong that the standard of proof beyond a reasonable doubt could not have been met. We overrule Morgan's sole point of error.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: January 6, 2006

Date Decided: January 12, 2006

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