Raymond Paul Smith v. The State of Texas--Appeal from 176th District Court of Harris County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RAYMOND PAUL SMITH, )

) No. 08-04-00218-CR

Appellant, )

) Appeal from the

v. )

) 176th District Court

THE STATE OF TEXAS, )

) of Harris County, Texas

Appellee. )

) (TC# 930,579)

)

O P I N I O N

Appellant Raymond Paul Smith appeals his conviction for the offense of aggravated robbery with an affirmative deadly weapon finding. Appellant waived his right to a trial by jury and elected a bench trial. Over Appellant=s not guilty plea, the trial court found Appellant guilty of the offense. The trial court found the enhancement paragraph, alleging a prior conviction for the felony offense of aggravated assault to be true. The trial court assessed punishment at 60 years= confinement in the Institutional Division of the Texas Department of Criminal Justice.[1] On appeal, Appellant challenges the factual sufficiency to sustain the conviction. We affirm.

FACTS

On the evening of November 1, 2002, Appellant and two other men, all brandishing guns and wearing stocking masks, confronted N.D. as she parked her car outside her home. They ordered her out of the car and forced her into her house. Once inside, they ordered the occupants to lay down on the floor and tied them up. At gunpoint, N.D., her husband, her daughter, and her daughter=s boyfriend were ordered upstairs. Over the course of more than an hour, the gunmen sexually assaulted N.D. twice, sexually assaulted N.D.=s daughter twice, and ransacked the family=s home before leaving with televisions, clothes, jewelry, and cash, in addition to the family=s minivan. The family=s minivan was recovered by police in the morning hours of November 2, burned and abandoned.

At trial, N.D.=s daughter stated that she identified Appellant as one of her assailants from photographs shown to her at the District Attorney=s office. N.D.=s daughter stated that she was able to see Appellant=s face when he briefly removed his mask. She identified Appellant in the courtroom as one of the assailants.

The police investigation of the crimes led to some suspects, two juveniles, Marqua Sauls and Demarcus Collins. Both juveniles named Appellant as an accomplice. The police obtained a pocket warrant and arrested Appellant in the parking lot of his apartment complex. The police recovered several stolen items from Appellant=s girlfriend, the girlfriend=s apartment, and from Appellant=s apartment.

State witness Gerrori Jones, an incarcerated drug dealer, testified that one night in November 2002, Appellant asked Jones to follow him while Appellant drove a van to the Fifth Ward. Appellant was accompanied by Sauls and Collins. Jones waited as they drove down a dead-end street and burned the van. They got into Jones= car and he dropped them off at his apartment complex. They gave Jones sixty dollars and told him that they had robbed some Chinese people. According to Jones, Appellant, Sauls, and Collins had left the property that was in the van, two televisions and some jackets, by the side of Jones= apartment complex in an alleyway. Jones denied having sold the televisions to Appellant.

Marqua Sauls testified at trial. Sauls admitted that he committed the aggravated robbery and aggravated sexual assault and had pled guilty to those charges. Sauls named Appellant and Collins as his accomplices and stated that the robbery was Appellant=s idea. According to Sauls, only he and Appellant had guns when they went inside the family=s home. Sauls stated that he was on drugs that night and could not remember everything that happened, but he did remember sexually assaulting the younger woman and stealing some property. Sauls remembered that Appellant drove the minivan after it was stolen and that Appellant gave AVonny@ fifty or sixty dollars to drive behind them. Sauls remembered that Collins and Appellant set the van on fire while he sat in Vonny=s car. Sauls also remembered putting all the stolen property in Appellant=s apartment. According to Sauls, Vonny was present when they unloaded the televisions at Appellant=s apartment.

Appellant testified at trial and denied having any involvement in the home invasion, robbery, and rapes that occurred on November 1, 2002. According to Appellant, one evening between November 5 and November 10, he was at a barber shop when Collins, Sauls, and Jones pulled up and said they had some merchandise. Appellant knew the merchandise had been stolen. Appellant purchased the merchandise, which was in the back of Jones= car, from Jones. Appellant gave the televisions and a watch to his girlfriend. Appellant testified that Jones had lied about being paid to help burn the victims= van. Appellant believed that Sauls and Collins implicated him because they thought he was Asnitching@ on them.

DISCUSSION

FACTUAL SUFFICIENCY

In his sole issue, Appellant contends that the evidence to support his aggravated robbery conviction is factually insufficient. Specifically, he asserts that the evidence was factually insufficient because it was outweighed by his own testimony and the accomplice testimony was not credible.

Standard of Review

Appellant raises only a factually sufficiency challenge to the evidence, therefore our factual sufficiency analysis presumes that the evidence is legally sufficient.[2] See Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); see also Clewis, 922 S.W.2d at 129. There are two ways in which we may find the evidence to be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. AThis standard acknowledges that evidence of guilt can >preponderate= in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.@ Zuniga, 144 S.W.2d at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. See id. at 481-82; Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis, 922 S.W.2d at 133. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant=s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

Factual Sufficiency of the Evidence

Sauls testified that he and Appellant robbed the victims at gunpoint and although he was on drugs at the time, Sauls did remember sexually assaulting one of the victims and stealing the victims= property, including the televisions and the family=s van, which was later set on fire. This accomplice testimony was corroborated by Jones= testimony concerning his later involvement in burning the van and having been told by the men that they had just committed a robbery. Jones also testified that he saw the stolen property in the van. Jones denied selling the televisions to Appellant. In addition to this evidence, N.D.=s daughter testified that Appellant was one the assailants who robbed and sexually assaulted her at gunpoint. The other victims who testified could not identify Appellant, but all agreed that the assailants were black, including Appellant, and that one was taller than the other two. Further, the police recovered some of the stolen items from Appellant=s girlfriend, Appellant=s apartment, and his girlfriend=s apartment.

In his brief, Appellant argues that Sauls= testimony was not credible in that Sauls apparently had difficulty understanding the concept of Alying@ and could not remember any details about the occurrence. Appellant also argues that Jones= testimony was also unbelievable. However, the trial court was free to evaluate the credibility and demeanor of the witnesses, and accept some or all of the witnesses= testimony. See Cain, 958 S.W.2d at 407.

Appellant points out that his own testimony clearly explained that Jones and Sauls were motivated to implicate him because they believed he had led to their arrests.[3] According to Appellant, he bought the stolen merchandise from Jones, but did not participate in the crimes alleged in any way. Appellant also notes that DNA evidence recovered from the crime scene, linked Sauls and Collins to the crimes, but not him. We also observe that Appellant testified that he was taller than Collins and Sauls, but that Jones was just as tall, if not taller than he.

After reviewing all the evidence in a neutral light, we conclude that the evidence is not too weak to support the finding of guilt beyond a reasonable doubt nor is the contrary evidence strong enough that the beyond a reasonable doubt standard could not have been met. Therefore, we conclude the jury was rationally justified in finding Appellant guilty beyond a reasonable doubt. Accordingly, we overrule Appellant=s sole issue.

The judgment of the trial court is affirmed.

August 11, 2005

DAVID WELLINGTON CHEW, Justice

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

(Do Not Publish)

[1] Appellant was also indicted on two charges of aggravated sexual assault in cause numbers 989,351 and 989,352. Appellant has also appealed the judgments rendered in those cases, which are affirmed by opinions issued this same day in cause numbers 08-04-00219-CR and 08-04-00224-CR, respectively.

[2] In his brief, Appellant acknowledges that the State presented sufficient corroboration of the accomplice testimony to satisfy the legal sufficiency of the evidence.

[3] There is nothing to indicate that Jones was arrested for participation in the November 1, 2002 home invasion. Rather, Jones was identified as an informant in the police investigation. Jones testified that he was incarcerated on a drug offense. He also testified that he had no charges for stealing in the last ten years. There was no evidence that Jones participated in the offenses of November 1, with which Appellant was charged. Thus, Jones was not an accomplice. See Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App. 1986).