Brian Wayne Rivers v. State of Texas--Appeal from 338th District Court of Harris County

Opinion filed August 16, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00165-CR

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BRIAN WAYNE RIVERS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1030792

  O P I N I O N

Brian Wayne Rivers appeals his conviction by a jury of the offense of murder. The jury assessed his punishment at life imprisonment in the Texas Department of Corrections, Institutional Division. Rivers contends in a single issue on appeal that the evidence is factually insufficient to support his conviction because the State did not prove his identity beyond a reasonable doubt. We affirm.

In order to determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

Viola Howard, the victim=s sister, testified that her brother accompanied her to the car in which she was going to ride as she was leaving a birthday party for him. She indicated that a green Cadillac pulled up near them. She said that someone turned the Cadillac=s lights off and the shooting started. She testified she saw ABrian@ in the car. She stated that the person looked familiar to her but that it did not register to her at first that it was ABrian@ she had seen.

Viola testified that, after she was checked out at the hospital, she returned to the scene of the shooting. She said she described the car to police at the scene and told them that there were three black males in the car. She acknowledged that she told police that she was not able to see who did the shooting. She explained the fact that it had not yet registered on her that she had seen ABrian.@ She noted that it had been seven or eight years since she had seen him and that that was when she was in the eighth or ninth grade. She declared that he had gained a lot of weight. She also noted that she was more concerned at that time about what could be done to help her brother than about who had shot him. In court, she identified Rivers as the ABrian@ she was referring to. She testified that on the night of the shooting she saw Rivers with a gun in his hand, shooting at her brother. She said she let police know that she believed it was Rivers who had done the shooting.

Viola testified that she subsequently identified Rivers in a police photo spread as the man she saw in the car shoot her brother. She indicated that, when she saw the photograph of Rivers as he currently appeared, she was certain it was the same person. She also said that she was certain, looking at Rivers, that he was the person who had done the shooting. None of the other witnesses was able to identify Rivers as a shooter.

Based upon all the evidence, we hold that the evidence is factually sufficient to support the conviction because we do not find that the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict is against the great weight and preponderance of the evidence. Rivers=s attack against Viola=s identification of him as a shooter is based upon the panic that occurred after the shooting, upon the fact that she initially told police she could not see the shooters well enough to identify anyone, and upon her knowledge of a feud between her family and that of Rivers.

Relying on Johnson v. State, 978 S.W.2d 703 (Tex. App.CCorpus Christi 1998), aff=d, 23 S.W.3d 1 (Tex. Crim. App. 2000), Rivers asserts that the accuracy of identification by an eyewitness can be a basis for overturning a conviction based upon factual insufficiency. While Rivers=s assertion about eyewitness testimony is correct, we find Johnson to be distinguishable from the case at bar.

In Johnson, the victim of an assault testified that she Abelieved@ she saw the face of her attacker. Johnson, 978 S.W.2d at 705. She indicated that she Abelieved@ the attacker=s ski mask came off when he forced her to do oral sex. Id. She said he did not have the ski mask on as he was driving back into town but that she did not look at him. Id. at 706. She said that she was positive he was the one, but not 100% positive because it was dark, she was blindfolded, she was very scared, her assailant had a ski mask on most of the time, and she did not take a very good look at him. Id. There was evidence that the victim failed to identify Johnson in a police photographic lineup. Id.There is no indication that the victim previously knew her assailant.

In the case at bar, although Viola told police initially that she could not see who did it, she subsequently remembered that she could tell it was Rivers, whom she had gone to school with, and identified him in a police photographic lineup. Her identification in court was unequivocal. Her inability to initially name Rivers to the police was explained by her concern about her brother=s condition and the fact that Rivers had gained weight since she had last seen him. We overrule Rivers=s sole issue on appeal.

The judgment is affirmed.

PER CURIAM

August 16, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: McCall, J.,

Strange, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.