Doylyn Morrison v. The State of Texas--Appeal from Criminal District Court No. 5 of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DOYLYN MORRISON,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-05-00045-CR

Appeal from the

Criminal District Court No. 5

of Dallas County, Texas

(TC# F-0400475-SL)

O P I N I O N

Doylyn Morrison appeals his conviction for burglary of a habitation with intent to commit a felony, to wit: robbery. A jury found Appellant guilty and assessed punishment at twenty years imprisonment. He raises two issues on appeal: that the complainant s in-court identification was tainted by an impermissibly suggestive out-of-court identification; and, the evidence was factually insufficient to sustain his conviction. We affirm.

On the morning of June 26, 2003, Michelle Patterson, the complainant, was in her bedroom in the apartment where she lived with her one-month old son, boyfriend Mark Schmitz, her boyfriend s mother, and his sister, C.S. That morning, Mr. Schmitz left for work around 5:30 a.m. His mother left for work around 7 a.m. without waking up Ms. Patterson to lock the deadbolt on the apartment door as she normally did. Around 8:15 a.m., Ms. Patterson heard a noise and got up to open her bedroom door. As she reached for the door, a man she had never seen before, but who she later identified as Appellant, opened her bedroom door from the outside. Appellant said that someone had stolen his weed and money and rushed into the bedroom. Appellant asked Ms. Patterson for the money and she told him she did not have any money and showed him her purse. Appellant began searching for money and valuables. He instructed Ms. Patterson to sit on the bed. Appellant went into C.S. s bedroom. C.S., who had been asleep, woke up and saw Appellant trying to unplug the cord to her laptop computer. Appellant told her that her brother had stolen his weed and to go back to sleep.

Appellant returned to Ms. Patterson s bedroom holding the laptop wrapped in a towel. Then he took Ms. Patterson s engagement ring and told her to lie down on the bed on her stomach. Ms. Patterson was crying and screaming. Appellant ordered her to lift up her nightgown and touch herself. He threatened to force C.S. to do this instead if Ms. Patterson did not comply. Ms. Patterson was crying, scared, and thought he would rape her. From the corner of her eye, Ms. Patterson saw Appellant unzip his zipper and begin to masturbate. After masturbating, Appellant left the apartment, taking the laptop and Ms. Patterson s engagement ring.

While Appellant was in the apartment, he had gestured several times under his shirt as if he had a gun and threatened to hurt Ms. Patterson, her son, or C.S if she did not do whatever he said. Ms. Patterson felt that Appellant had placed her in fear of her life or serious injury.

In her statement to the police, Ms. Patterson described the intruder as a light-skinned black man, not that tall, and slender built. Shortly after the burglary, officers showed Ms. Patterson a lineup of six African-American males. Ms. Patterson could not identify any of the individuals as the intruder. On July 27, 2003, police officers showed Ms. Patterson a second lineup, in which she identified Appellant. At trial, Ms. Patterson made an in-court identification of Appellant as the person who had entered her Dallas apartment without her consent and robbed her. She also testified that she had no doubt in her mind that Appellant was the intruder.SUGGESTIVE IDENTIFICATION

In Issue One, Appellant contends that the complainant s in-court identification was inadmissible because it was tainted by impermissibly suggestive pretrial identification procedures. Texas courts stringently apply the contemporaneous objection rule in the context of improper identification. Van Zandt v. State, 932 S.W.2d 88, 94-95 (Tex.App.--El Paso 1996, pet. ref d), citing Perry v. State, 703 S.W.2d 668, 670 (Tex.Crim.App. 1986). Without an objection to an in-court identification or to testimony based on an impermissibly suggestive identification procedure, no error is preserved. Id. at 94-95; see also Perry, 703 S.W.2d at 671.

Here, Ms. Patterson made an in-court identification of Appellant without objection. She also testified regarding the circumstances of her out-of-court identification without objection. Appellant only lodged an objection when the State offered the photographic line-up into evidence. We conclude that Appellant failed to preserve this issue for review. We overrule Issue One.

FACTUAL SUFFICIENCY

In Issue Two, Appellant challenges the factual sufficiency of the evidence to sustain his conviction. Specifically, Appellant contends that excluding the in-court identification, which was allegedly tainted by the impermissibly suggestive prior photo line-up, there was no other corroborating evidence to connect Appellant to the offense.

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. Id. at 484-85. Thus, balancing all the evidence, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met and the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the offense beyond a reasonable doubt. Id. Our evaluation, however, should not intrude upon the fact finder s role as the sole judge of the weight and credibility given to any witness s testimony. See 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 shocks the conscience or clearly 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).

Here, Ms. Patterson positively identified Appellant as the perpetrator of the offense in a prior photo line-up and likewise identified him in open court at trial. She also testified that she stared at Appellant during the incident so that she would be able to identify him if she got the chance. Appellant points to the lack of physical evidence presented at trial, noting in particular that the police recovered no latent prints from Appellant in the apartment, found no traces of seminal fluids, located no witnesses at the apartment complex, and found no stolen property in Appellant s possession. Appellant also points out that C.S. was unable to identify him in the photo lineup or at trial. It is within the province of the jury to determine the credibility of the witnesses testimony and the weight to be given to their testimony. See Cain, 958 S.W.2d at 407. Apparently, the jury believed Ms. Patterson s testimony and resolved any conflicting evidence in favor of the State. Considering all the evidence in a neutral light, we find that the evidence was not too weak to support the guilty finding beyond a reasonable doubt nor was any contrary evidence strong enough such that the beyond a reasonable doubt standard could not have been met. Thus, the evidence was factually sufficient to sustain Appellant s conviction. Issue Two is overruled.

We affirm the trial court s judgment.

DAVID WELLINGTON CHEW, Justice

September 21, 2006

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

Barajas, C.J., not participating

(Do Not Publish)