Robinson, Tracey Lynn v. The State of Texas--Appeal from 161st District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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TRACEY LYNN ROBINSON, ) No. 08-00-00119-CR

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Appellant, ) Appeal from

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v. ) 161st District Court

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THE STATE OF TEXAS, ) of Ector County, Texas

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Appellee. ) (TC# B-27,386)

O P I N I O N

Tracey Lynn Robinson appeals his conviction for the offense of aggravated robbery. A jury found Appellant guilty and assessed his punishment at a fine of $5,000 and imprisonment for a term of sixty-seven years. The trial court entered in the judgment an affirmative finding on the use of a deadly weapon. Tex.Code Crim.Proc.Ann. art. 42.12, ' 3g(a)(2)(Vernon Supp. 2002). We affirm.

FACTUAL SUMMARY

Gary Miller regularly attends gun shows and sells weapons. At those shows, he passes out brochures advertising his business. Two men came by his home on East 56th Street in Odessa one afternoon and talked to him for ten or fifteen minutes about purchasing some 9 mm weapons and lasers. The men did not have any money with them but said they would return later. They left in a dark maroon Lincoln. Sometime after midnight, Miller heard a knock at his door. He opened the door because he believed it was his girlfriend returning from giving a friend a ride home. Instead, he saw two black males, the first of whom had a handgun. Stating it was a robbery, they pushed their way into his home and began beating him. A third man soon joined them. Miller noticed that the second and third robbers had been at his house earlier that day.

The men continued to beat Miller in what he described as a violent struggle. In an effort to get the men back to his bedroom where he had a weapon, Miller told the robbers that he had money in his bedroom. They carried Miller to the bedroom. Once in the bedroom, however, they tied his wrists together with duct tape and one of the men sprayed him with pepper spray. Miller identified Appellant in the courtroom as the second man who came in the door and as the one who sprayed him with pepper spray. The robbers ransacked Miller=s home and took a suitcase containing some of his merchandise, his money, car stereo equipment, and guns. After the three men left the bedroom, Miller walked to the front door where he saw Appellant looking outside the door to determine whether it was safe to leave. The other two robbers had already gone while Appellant stayed behind to make sure Miller did not get up. When Appellant turned around and saw Miller, he said for him to get on the floor and not move or he would hurt him. Appellant then left.

Miller immediately went into the kitchen and used a knife to cut the tape binding his wrists. He then got one of his handguns and went outside to start looking for the robbers. Instead of the robbers, Miller saw a deputy sheriff driving by and he flagged him down. After hearing Miller=s story, the deputy sheriff reported the incident over the radio. Other officers arrived and investigated the scene.

Joe Samford, an Odessa police officer, was dispatched to Miller=s home at approximately 1 a.m. After being briefed by the deputy sheriff, Samford spoke with Miller who explained what had happened and gave him a description of the three black male suspects. Miller described the first suspect as 5=8@ tall and 250 pounds, black hair, brown eyes, medium skin complexion, and wearing a black sweatshirt top with a hood and black sweat bottoms. The second suspect was 5=8@ and 250 pounds, black hair, brown eyes, medium skin complexion, and wearing a black sweat top and blue bottoms. The third suspect was 6=1@ and 160 pounds with a blue hooded jacket. After receiving this information, Samford went outside and began looking for evidence. In the alley near Miller=s home, he found Miller=s checkbook cover and wallet and a keychain with a pepper spray dispenser which Appellant had used to spray Miller. He also found white socks and the metal suitcase taken from Miller=s home. As Samford continued to investigate the area near Miller=s home, he found an abandoned brown Lincoln near the intersection of Stoddard and Benefield. This vehicle generally matched the description of the vehicle which had been at Miller=s home earlier that day. Several officers, including Samford, investigated the vehicle. Inside the trunk, Samford found a handgun and papers pertaining to a person named Ron Lee Jones.

Detective Buzzy Abalos of the Odessa Police Department also investigated the aggravated robbery of Miller. During his investigation, he discovered that papers bearing the name Ron Lee Jones had been found in the vehicle. From prior experience, Abalos knew this to be an alias used by Appellant. Abalos put together a photo lineup which contained Appellant=s photograph and showed it to Miller.[1] Abalos contacted the registered owner of the Lincoln, but he did not claim ownership of the vehicle.

At the time of the robbery, Richard White lived on Stoddard near 56th Street. At about midnight on December 15, 1998, he heard a car drive up on the gravel road and then heard car doors opening and shutting. His dogs began barking so he looked out the window. He saw three black males near the car. When his dogs hit the fence and began growling and barking loudly, the three men hesitated briefly but continued walking towards Benefield and 56th Street. White immediately called the sheriff=s department to report the suspicious activities. John J. Galladay, a deputy sheriff, arrived within a few minutes and White reported what he had seen. White remained outside and in view of the vehicle even after Galladay left momentarily. Galladay went to the corner of 56th Street and Benefield to provide assistance because he had heard radio traffic stating that another unit had been flagged down by a man who had been robbed. Galladay returned within one or two minutes and other deputies soon arrived. Within a few minutes, White saw one of the three men he had seen earlier. White began yelling over to the deputies that the man was in the neighbor=s back yard, but the deputies could not hear him. The man then jumped a fence and ran away.

As part of his defense, Appellant challenged Miller=s identification. In his report to the police, Miller described the second robber as 5=8@ and 250 pounds. During cross-examination, Miller was asked to estimate Appellant=s height and weight. He believed Appellant was 5=8@ or 5=9@ and weighed about 190 pounds. Using a yardstick and scales for a courtroom demonstration, Appellant presented evidence that he is actually 5=11@ and weighed 200 pounds.

In his testimony, Appellant denied robbing Miller. He claimed that on the evening of the robbery, he had gone to the Caesar Gentlemen=s Club. A friend, Timothy Johnson, gave him a ride to the club. Appellant spent most of his time with two dancers that evening, Cavatia and Passion, until the club closed at 2 o=clock. He then took a cab to the Zodiac Club. Appellant was not able to find any of these three witnesses for purposes of testifying at trial nor did he obtain the cab company=s records. He believed Johnson had moved to California. During cross-examination, Appellant admitted that he uses the alias ARon Jones@ but maintained that Miller was mistaken in his identification of him as one of the robbers.

The trial court included in its charge an instruction on the law of parties. The jury rejected Appellant=s alibi defense and found him guilty of the aggravated robbery of Miller as a party.

LEGAL AND FACTUAL SUFFICIENCY

In his sole point of error, Appellant contends that the evidence is legally and factually insufficient to support his conviction because the State failed to prove that he committed the robbery.[2] More specifically, he argues that the State failed to disprove an alternative reasonable hypothesis, namely, his alibi defense.

Standard of Review

Because Appellant=s argument pertaining to legal sufficiency of the evidence relies on the Aoutstanding reasonable hypothesis@ construct jettisoned by the Court of Criminal Appeals, it is without merit. See Geesav. State, 820 S.W.2d 154, 161 (Tex.Crim.App. 1991). We will review the legal sufficiency of the evidence utilizing the proper standard of review.

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, 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, 318 19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa, 820 S.W.2d at 159. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d at 573. We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

Miller, who had an ample opportunity to observe Appellant for several minutes in well-lighted conditions and from only two feet away, made a positive in-court identification of Appellant as the second robber. Miller had no question in his mind that Appellant was the same man. Papers found in the vehicle tied to the robbery contained an alias used by Appellant.[3] This information led police investigators to suspect Appellant. This evidence is legally sufficient for a rational jury to find beyond a reasonable doubt that Appellant committed the aggravated robbery of Miller.

Factual Sufficiency

When conducting a review of the factual sufficiency of the evidence, we consider all of the evidence, but we do not view it in the light most favorable to the verdict. Clewis, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex.App. El Paso 1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder's determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.

Miller had an opportunity to view Appellant both in the afternoon when he came to Miller=s home and later that evening in well-lighted conditions prior to being sprayed in the face with the pepper spray. Miller admitted that he had some blurry vision after being sprayed but insisted that he could see what the men were doing. Miller was unwavering in his identification of Appellant as the second robber. Appellant attempted to counter this identification by offering an alibi. Other than his own testimony, Appellant had no other evidence to support his claimed alibi although he made some attempt to locate a witness in California. In evaluating Appellant=s credibility, the jury could have taken into account his numerous prior felony convictions and misdemeanor convictions for theft. It is within the jury=s province to judge the credibility of Miller=s identification of Appellant, resolve any inconsistencies, and determine the weight to be accorded his testimony. See Lee v. State, 51 S.W.3d 365, 369 (Tex.App. -Austin 2001, no pet.). The jury=s resolution of this issue is not contrary to the overwhelming weight of the evidence. Having found the evidence both legally and factually sufficient to support Appellant=s conviction, we overrule Point of Error One. The judgment of the trial court is affirmed.

August 15, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] The State asserts that Miller positively identified Appellant from the photo lineup. Although the attorneys indicated in a hearing out of the presence of the jury that Miller had identified Appellant from the photo lineup, the State offered no evidence to that effect. Therefore, we are unable to consider this Afact@ in our sufficiency review. See Janecka v. State, 937 S.W.2d 456, 576 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 825, 118 S. Ct. 86, 139 L. Ed. 2d 43 (1997)(assertions in an appellate brief that are unsupported by the record will not be accepted as fact).

[2] Appellant=s brief does not distinguish between the legal and factual sufficiency standards of review. Although the cases he cites were all decided prior to Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), and consequently, involve only legal sufficiency review, he seeks remand of his case for a new trial. We have elected to review both legal and factual sufficiency of the evidence.

[3] The State maintains in its brief that the papers found in the trunk are federal parole documents bearing the name Ron Lee Jones and it seeks to draw a connection between these documents and Appellant=s admission that he has a federal conviction. The papers seized from the vehicle, however, were never introduced into evidence and none of the witnesses described them. The prosecutor alluded to the nature of the papers during cross-examination of Appellant, but his questions are not evidence. Further, the State made no other attempt to directly connect the papers and Appellant.