C. W. Oliver, III v. The State of Texas--Appeal from 179th District Court of Harris County

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

C. W. OLIVER, III, )

) No. 08-04-00202-CR

Appellant, )

) Appeal from the

v. )

) 179th District Court

THE STATE OF TEXAS, )

) of Harris County, Texas

Appellee. )

) (TC# 961470)

)

O P I N I O N

C. W. Oliver, III appeals his conviction of aggravated robbery with a deadly weapon. A jury found Appellant guilty and the trial court assessed punishment at 50 years= confinement and imposed a $10,000 fine. We affirm.

Christine Meyers, Katheryn Kelley, and her boyfriend, Ashton Posey, were roommates in an apartment complex located off of Rolling Creek and FM 1960. On September 12, 2003, Christine Meyers came home from work at 4 a.m. and went to sleep in her bedroom. Early that afternoon, she awoke to find two men in her room and one pointing a gun at her head. The man pointing the gun was a six-foot tall black man with short black hair. Ms. Meyers only saw the top half of his face because she was looking at the gun in his hand.

 

Ms. Meyers was ordered to turn over on her stomach and the men began asking her where the XO=s were in the house. Ms. Meyers did not understand what they wanted at first but then realized they were looking for the drug Ecstacy. Ms. Meyers had never taken the drug but some of her roommates had, and a few days before, there was a party in the apartment and some people were using the drug.

One of the men tied Ms. Meyers= hands behind her back and pulled a pillowcase over her head, while the other looked around her closet. She heard the men rustling around in her bedroom. She then heard them go into another room.

Mr. Posey was asleep in his room when he felt someone nudging him in the back of his head with a gun. He woke up and looked over his shoulder and saw the silver barrel of a gun and the gunman=s eyes. Mr. Posey was told not to look at them and then a pillow case was put over his head. The men then asked Mr. Posey where he kept all of his drugs and money. Mr. Posey informed the men the only drugs he had was a joint located downstairs in the kitchen and $5 on his night stand. After the two men left the apartment, Ms. Meyers called for help.

Police were called to the scene at Rolling Creek Drive and an investigation into the robbery began. Deputy Paul Boyd was dispatched to the apartment and was told by Ms. Meyers that her car was missing. Deputy Boyd placed a broadcast over the radio describing the vehicle missing as a red Ford Probe. Deputy Boyd determined forced entry was made by breaking a rear window on the lower floor of the apartment which led into the kitchen, even though the apartment back door was left unlocked.

 

Several hours later, Deputy Almendarez was working on a traffic stop on Rolling Creek Drive when a witness told him that a man in a red car had broken into his friend=s truck. The witness led the deputy to the car, a red 1994 Ford Probe. A black male about five-ten or six feet tall wearing dark clothing was standing beside the car. When the deputy approached, the black man fled on foot. Deputy Almendarez pursued the man and during the foot chase, a wallet fell from the fleeing man=s back pocket. The deputy retreived the wallet but lost the fugitive in nearby woods. Deputy Almendarez had radioed other officers about the chase and a police perimeter had been set up around the woods and a number of officers began searching for the fugitive.

Officer David Thomas with the Houston Police Department K-9 unit arrived at the scene. Officer Thomas used K-9 police dog, Rudy, to track the fugitive and eventually the K-9 unit found the fugitive crawling in the woods and he was captured. Officer David Thomas identified the man as the Appellant.

The red Ford Probe that Appellant had fled from belonged to Ms. Meyers. An inventory search of the car found the following items within the vehicle: a blue towel, a blue Outback backpack which contained a .38 special revolver, a Pioneer car stereo, flashlight and two batteries, screwdriver, cigarette lighter, Kenwood remote and Rockford Fosgate remote, 5 grape suckers, a cell phone, and $3.89. They attempted to obtain fingerprints from the car, but there were none.

At trial, Appellant presented three alibi witnesses who testified Appellant could not have committed the robbery because he was at a friend=s house. The first witness was Ms. Shandreka Russell. Ms. Russell has known Appellant for seven years and she is the mother of their child. Ms. Russell testified she met with Appellant at a friend=s house at around 1 p.m. and she left at approximately 2:45 p.m. to pick up her daughter from school. She stated she went to visit with Appellant because she needed some money for their child.

 

The second witness testifying on Appellant=s behalf was Ms. Tiffany Merchant. Ms. Merchant has known Appellant for ten years and she has been dating Appellant for a year and a half. She stated she called Appellant during her lunch break at around 1:10 p.m. while Appellant was over at his friend=s house. The conversation did not last long because Ms. Merchant was upset Ms. Russell was going over to meet with Appellant. At approximately 1:25 p.m., Ms. Merchant telephoned Appellant again to see if Ms. Russell was still there and she was. Finally, Ms. Merchant called Appellant a third time at around 1:40 p.m. to see if Ms. Russell was still visiting with Appellant, and she testified she could hear Ms. Russell in the background.

The last witness Appellant presented was his mother, Renita Oliver. Ms. Oliver stated at approximately 12:45 p.m., she went over to Appellant=s friend=s house where Appellant had been staying the last two weeks. Prior to living in his friend=s house, Appellant had been living with his mother but he had to move out due to a fire that occurred in his mother=s home. Ms. Oliver went to pick up Appellant at his friend=s house so he could help her and her sister move some things. Ms. Oliver testified Appellant did not leave with her because his friend had left the apartment and he was there waiting for his friend=s kids to arrive from school or daycare and for Ms. Russell to arrive. Ms. Oliver did not stay long with Appellant. She stated she left Appellant at around 1:15 p.m. or 1:30 p.m. which is when she saw Ms. Russell arriving in the apartment parking lot.

SUFFICIENCY OF THE EVIDENCE

 

Appellant presents two issues challenging the legal and factual sufficiency of his conviction for aggravated robbery. The elements of aggravated robbery are: (1) the Appellant; (2) in the course of committing a theft; (3) with the intent to obtain and maintain control of property; (4) knowingly and intentionally; (5) threatened or placed another in fear of imminent bodily injury or death; and (6) used or exhibited a deadly weapon. Fortenberry v. State, 889 S.W.2d 634, 636 (Tex.App.--Houston [14th Dist.] 1994, pet. ref=d); Robinson v. State, 596 S.W.2d 130, 132 (Tex.Crim.App. 1980); Tex.Penal Code Ann. ' 29.03(a)(2)(Vernon 2003). Appellant contends his conviction should be reversed because the State failed to provide sufficient evidence identifying him as the robber.

Standards of Review

In reviewing the legal sufficiency of Appellant=s conviction, we must view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The standard of review is the same for convictions based on direct or circumstantial evidence. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Because the trier of fact is in the best position to review the evidence first hand, we must give due deference to the trier of fact=s determinations regarding the weight and credibility of the evidence. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991), citing Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988); Johnson, 23 S.W.3d at 9; Tex.Code Crim.Proc.Ann. art. 38.04 (Vernon 1979).

 

In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient if the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. 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). We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. Zuniga, 144 S.W.3d at 481. A clearly wrong and manifestly unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Id. 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).

Legal Sufficiency[1]

 

Appellant contends there is legally insufficient evidence to establish Appellant=s identity as the robber because the victims of the crime did not have an adequate opportunity to view the robber, the State failed to present evidence Appellant was inside complainant=s residence, there was no evidence proving which of the two robbers was Appellant, and Appellant=s possession of Afruits of the robbery@ was not sufficient to prove Appellant=s identity as the robber.

The two eye witnesses to the robbery were the victims Christine Meyers and Ashton Posey. At the time the robbery occurred, both victims were sleeping and they had their overhead lights turned off. Although the lights were off, the victims were not sleeping in complete darkness because both of their bedroom blinds were half-way open, which provided the afternoon sunlight to shine into their rooms.

Ms. Meyers had enough light to see Appellant to make an in-court identification of Appellant as the robber with the gun. Ms. Meyers testified she saw Appellant for about a second and half or two seconds and then she closed her eyes because she was afraid he would do something to her if he knew she had seen him. When asked whether those few seconds were enough for her to remember the face of Appellant, she stated it did not take her a long time to memorize the face of the person who put a gun to her face. Specifically she said, AI=ve never had a gun to my face before, so it kind of bogs my memory.@

 

Although Ms. Meyers was able to see Appellant=s face, Mr. Posey did not. He stated the only thing he saw was the eye structure and eye color of the suspect as well as his figure. Even though Mr. Posey did not see Appellant=s face, the testimony of Ms. Meyers is legally sufficient evidence Appellant was the robber who held the gun to her head and was inside her apartment. Welch v. State, 993 S.W.2d 690, 694 (Tex.App.--San Antonio 1999, no pet.); Ford v. State, 794 S.W.2d 863, 867 (Tex.App.--El Paso 1990, pet. ref=d); Karpeal v. State, 628 S.W.2d 520, 524 (Tex.App.--Fort Worth 1982, pet. ref=d)(in-court identification of defendant is sufficient to sustain conviction).

In addition, Appellant was found in possession of Ms. Meyers= recently stolen vehicle. When a defendant is found in possession of recently stolen property and he or she does not offer an explanation for how they attained the property, a fact finder may draw an inference of guilt. Louis v. State, 159 S.W.3d 236, 246-47 (Tex.App.--Beaumont 2005, pet. ref=d), citing Hardesty v. State, 656 S.W.2d 73, 76 (Tex.Crim.App. 1983); Girard v. State, 631 S.W.2d 162, 164 (Tex.Crim.App. 1982)(recent and unexplained possession of robbery loot is sufficient evidence of guilt.). The fact finder may also infer guilt when a defendant is at or near the scene of the crime and thereafter flees from officers. Cawley v. State, 310 S.W.2d 340, 342 (Tex.Crim.App. 1983); Hardesty, 656 S.W.2d at 78.

 

Although Appellant was found in possession of Ms. Meyers= vehicle by Deputy Almendarez, Appellant asserts the evidence failed to prove his identity as the robber because Deputy Almendarez did not identify Appellant at trial. At trial, Deputy Almendarez could not identify Appellant as the suspect he chased on September 12. The deputy stated he could not identify Appellant at trial because it had been a long time since the day he saw him. Although Deputy Almendarez could not identify Appellant on the day of the trial, he did testify the suspect who fled from the Ford Probe and dropped his wallet was the same suspect who ran into the woods and he was the same man brought out of the woods by police officers. The deputy also testified the wallet the suspect dropped contained Appellant=s license. Even though Deputy Almendarez could not make an in-court identification of Appellant, his testimony still established Appellant was the suspect he chased from Ms. Meyers= stolen vehicle on September 12.

Moreover, the jury heard testimony from Ms. Meyers that she retained possession of her keys and her vehicle prior to the robbery. Ms. Meyers testified before she went to bed, she placed her wallet and the keys to her car underneath the table stand next to her bed. After the two robbers left Ms. Meyers= apartment, her keys, her wallet, and car were missing. Based upon Ms. Meyers= testimony, it would have been reasonable for the jury to infer Appellant acquired access to Ms. Meyers= keys by stealing them in the robbery.

The evidence also established Appellant was found in possession of Ms. Meyers= car only three hours after the robbery and in the same vicinity. The time frame from the initial robbery of Ms. Meyers and Mr. Posey at 1:30 p.m. to Appellant=s fleeing from Deputy Almendarez at approximately 4:30 p.m. was a relatively short three hours. In addition to being a small time frame, the Appellant was apprehended in the same area where the aggravated robbery occurred. The aggravated robbery occurred on Rolling Creek Drive which was off of FM 1960 and both Deputy Almendarez and Officer Thomas testified Appellant was apprehended in the wooded area of FM 1960. Based upon this evidence, the jury could have reasonably concluded Appellant was guilty because he was in possession of recently stolen property, the robbery and Appellant=s arrest were in close proximity of each other, and he fled from Deputy Almendarez. Viewing the evidence in the light most favorable to the prosecution, the jury could have found beyond a reasonable doubt Appellant committed the robbery. Appellant=s Issue One is overruled.

Factual Sufficiency

 

As previously stated, Ms. Meyers was able to distinctly identify Appellant in court. The evidence in the record did indicate Mr. Posey could not adequately identity Appellant because he did not see his face. Any inconsistencies within the testimony of the victims is weighed by the trier of fact. Johnson, 23 S.W.3d at 8. Appellant cites Johnson v. State for its holding that even with an in-court identification by the victim, the Court of Appeals and the Court of Criminal Appeals found there was factually insufficient evidence. Johnson v. State, 978 S.W.2d 703, 707 (Tex.App.--Corpus Christi 1998), affirmed by Johnson, 23 S.W.3d at 12.

Appellant urges this Court to consider the ruling of Johnson as a similar situation to Appellant=s. In Johnson, the victim was apprehended in her apartment parking lot after coming home from work and she was raped. Johnson, 978 S.W.2d at 705. The man who raped her wore a black turtle neck, a ski mask, and gloves. Johnson, 978 S.W.2d at 705. He forced the victim to drive them outside the city where there was no artificial light and the area was very dark. Id. He then proceeded to bind her, blindfold her, and then raped her. Id. The victim made an in-court identification where she stated the following:

Q: Do you believe or do you know whether or not that is the man that sexually assaulted you in November of 1992?

A: I cannot tell a hundred percent that it is him, but I am positive.

Q: I=m sorry?

A: I=m positive that it is him.

Q: But you are not a hundred percent positive?

A: No sir.

Q: Why can=t you be a hundred percent positive?

A: It was dark. I blindfolded [sic]. I was so scared. He had a ski mask on most of the time. I didn=t take a look at him very good. I was just so scared. I don=t think I would have a chance to identify him. I thought I was going to die.

 

. . .

Q: Well do you remember if it was a short time or a long time that he had the mask off?

A: I believe that he didn=t have the mask on while he drived [sic] back into town but I didn=t take a look at him.

Q: But the person who did this to you did not have a mask on for the entire trip back into town?

A: I believe so.

Q: You just didn=t look at him?

A: I didn=t look at him.

Johnson, 978 S.W.2d at 706.

The court in Johnson held the evidence was factually insufficient because the in-court identification was not clear and unequivocal and the other evidence presented by the State against the defendant could have applied to many other people. Johnson, 978 S.W.2d at 707. The other evidence the State used to incriminate Johnson was DNA testing showing he was in a group of 8.5 percent of the black population to match the DNA samples of semen taken from the victim, he had lived in the area where the rape had occurred, he was not circumcised, after his arrest he escaped from jail, and he lived in an apartment a short distance from the victim. Johnson, 978 S.W.2d at 706-07.

As previously discussed, Ms. Meyers made a clear in-court identification of Appellant. She stated in her testimony:

Q: And was there light enough for you to observe the face of the person that came in with the gun?

A: Yes, sir.

 

Q: And describe for us what you saw about the face when you saw it as the person came into your room.

A: I saw the upper half of the face.

Q: Describe it for us. Was it a man or woman?

A: It was a male about the size of my boyfriend. So, about six, six-one, a little bigger set.

Q: Was he white or black?

A: He was black.

Q: What was his hair like?

A: Short.

Q: Do you remember seeing any facial hair on him?

A: I don=t remember. I saw the top half before I closed--because I was kind of looking at the gun. And then right above it was his face so--

Q: From your vantage point, like in your bed, the gun was blocking the lower half of his face?

A: Yes.

. . .

Q: Okay. The defense also brought up that you only saw the face for one-and-a half to two seconds. How long did it take you to memorize the face of the person who put a gun to your face?

A: Doesn=t take long. I=ve never had a gun in my face before, so it kind of bogs my memory.

. . .

Q: Ms. Meyers, going back to September 12th of 2003, do you see a person in the courtroom today that was in your bedroom with a gun pointed at your head about 1:30 on September 12th, 2003?

 

A: Yes, sir.

Q: And would you please point at that person and tell us what he=s wearing?

A: Him, and he was wearing dark colors.

Q: Tell us what he=s wearing now.

A: The tan shirt with a blue tie.

Q: And where is he sitting?

A: To the right of me.

Unlike the victim in Johnson, Ms. Meyers made a clear and unequivocal in-court identification of Appellant. The testimony by the victim in Johnson stated she was not one-hundred percent sure the defendant was her attacker. She stated she was unsure because it was dark outside and she was so terrified she did not want to look at her attacker. This is not what occurred in the case at hand. Here, Ms. Meyers testified she had plenty of light to see the upper half of the robber=s face. She also stated she memorized what he looked like and her in-court testimony shows she clearly pointed out Appellant as the robber who was in her apartment on September 12.

 

Moreover, the holding in Johnson is not similar to the case at hand because the circumstances surrounding Appellant=s arrest could not have applied to many people not associated with the robbery. The evidence used against Johnson were circumstances that could have applied to anyone. Unlike Johnson, Appellant was found a few hours later in the same area as the robbery and he was in possession of Ms. Meyers= stolen vehicle which contained a weapon the victim testified was the one used in the robbery. When asked whether Ms. Meyers owned the gun found inside her car, she testified she did not own the gun. Ms. Meyers was able to describe the gun in court as a revolver that had a wood or wood-grained handle. She further explained she knew the gun used in the robbery was a revolver because the barrel and everything else on the weapon is a lot higher up than a semi-automatic. Ms. Meyers testified she knew this because her brother is a police officer and he carries an automatic weapon. Based upon the evidence Appellant held in his possession, these circumstances lend themselves to his involvement in the robbery.

Lastly, Appellant asserts his witnesses presented enough evidence of an alibi that the State could not have proven beyond a reasonable doubt Appellant was the robber. All three witnesses testified Appellant was at a friend=s house at the time the robbery occurred. Ms. Russell testified she was with Appellant the entire time when the robbery was taking place, Ms. Oliver testified she saw her son a few minutes before the robbery occurred at his friend=s house, and Ms. Merchant testified she was on the phone with Appellant during the time the robbery occurred. However, in addition to all three testifying Appellant was at his friend=s house, two of the witnesses, Ms. Russell and Ms. Oliver, also admitted they never told the Sherriff=s Department or the Harris County DA=s office about Appellant=s whereabouts before testifying at Appellant=s trial. From the time the robbery occurred on September 12 to the time Appellant had his trial was a period a little over nine months. Although no testimony was elicited from Ms. Merchant as to whether she notified the authorities prior to trial about Appellant=s alibi, she did testify that she did not want to see her boyfriend convicted. Specifically she stated:

Q: Would you say whatever you need to to avoid him getting convicted?

A: Probably so.

 

The credibility of witness testimony is determined by the trier of fact. The jury in this case could have believed all, some, or none of the witness testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Even though Appellant presented alibi witnesses, we leave the credibility of their testimony to the jury=s determination. Clewis, 922 S.W.2d at 133. Based upon all of the evidence, we find there was sufficient factual evidence to convict Appellant of aggravated robbery. Appellant=s Issue Two is overruled.

We affirm the trial court=s judgment.

September 29, 2005

DAVID WELLINGTON CHEW, Justice

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

(Do Not Publish)

 

[1] In both legal and factual insufficiency arguments, Appellant references Ashton Posey=s testimony that he was shown a photographic lineup. Specifically, Appellant argues the State failed to provide any evidence of the identification procedure or any exhibits about what photographs were shown to the victims. At trial, Ashton Posey testified to the following:

Q: Did you give the description of the person=s eye structure to the police?

A: No, ma=am. They just showed me a photo shoot.

Mr. Posey=s statement was the only reference in the record regarding any type of photo shoot and the State never admitted any evidence of a photo shoot. Appellate court review is limited to the confines of the record. Salazar v. State, 5 S.W.3d 814, 816 (Tex.App.--San Antonio 1999, no pet.); Burns v. State, 761 S.W.2d 486, 487 (Tex.App.--Corpus Christi 1988, pet. ref=d); Jones v. State, 564 S.W.2d 718, 721 (Tex.Crim.App. 1978). Because the State did not admit the evidence into the record and this Court is bound by the record, we cannot review Appellant=s argument regarding the lack of evidence the State failed to introduce.