MARVIN SHERRELL PRESTON A/K/A ANTHONY TERRELL PAM, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 27, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00220-CR
No. 05-07-00221-CR
 
............................
MARVIN SHERRELL PRESTON A/K/A ANTHONY TERRELL PAM, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 219-82688-06, 219-82689-06
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OPINION
Before Justices FitzGerald, Lang-Miers, and Mazzant
Opinion By Justice FitzGerald
        A jury convicted Marvin Sherrell Preston   See Footnote 1  of two counts of robbery and assessed punishment at eight years' imprisonment in each case. In two issues, appellant contends the evidence is legally and factually insufficient to support the convictions. We affirm the trial court's judgments.
 
 
Background
 
        At approximately 9:30 p.m. on August 18, 2006, Robert Shannon was assaulted and robbed by two men at the DART   See Footnote 2  downtown Plano station. A few minutes later, Jaclyn Basilone was robbed by the same two men at the DART Parker Road station. After that robbery, the two assailants went to a grocery store parking lot across the street from the Parker Road station and asked Vincent Tucker to give them a ride to a DART station in Dallas. Tucker drove the two men only across the street to the Parker Road station, where the men were apprehended by the police. Several witnesses at the scene identified appellant and Jeremiah Smith as the men who committed the robberies.
        During the trial, the jury was told Smith pleaded guilty to committing both robberies at a separate hearing and received a prison sentence. Robert Shannon, the first complainant, testified that as he rode the DART train from Dallas into downtown Plano, he had “words” with two men. Shannon and the two men got off the train at the same time. One of the men hit Shannon in the back of the head. Shannon fell to the ground and both men kicked and beat him. As people around the station and nearby apartments came to Shannon's aid, one of the men took Shannon's wallet. Later that evening, a police officer drove Shannon to the Parker Road station to view suspects. Appellant was handcuffed and sitting on the curb while Smith was sitting inside a patrol car. Shannon identified appellant and Smith at the scene as the men who beat and robbed him. At trial, Shannon positively identified appellant as one of the men who beat and robbed him.
        Shavodka Moore testified that while riding the DART train into downtown Plano, she sat across the aisle from Shannon, who had his back to appellant and Smith. Moore was facing appellant and Smith. When Shannon turned around to see the train was near downtown Plano, appellant and Smith said, “turn around,” and told Shannon not to look at them. When Shannon got off the train, appellant and Smith followed him. Moore saw Smith hit Shannon in the back of the head with his fists, then both Smith and appellant “kicked and punched” Shannon. After Moore told the police what she observed, an officer drove her to the Parker Road station and asked if she saw the men who had attacked Shannon. Moore positively identified appellant and Smith, who were handcuffed and standing outside a patrol car, as the men she saw beating Shannon. At trial, Moore positively identified appellant as one of the men who beat Shannon. Moore testified that although the prosecutor showed her a photograph of appellant about one hour before the trial, she would have been able to identify appellant even without seeing the photograph because she clearly saw appellant for at least twenty minutes while riding the train.
        Several other witnesses testified they saw two men wearing white shirts and white caps beat and kick Shannon. Natalie Walsh testified she lived across from the downtown Plano station. She saw two men wearing long white T-shirts kicking and hitting another man who was laying on the ground. Walsh ran outside with a towel and water to help the man laying on the ground. When she asked the man if he was okay, he said, “[T]hey stole my wallet. My wallet's gone. My wallet's gone.” Walsh testified she saw two knives on the ground near where the assault took place. Chris Yarger, who also lived across from the downtown Plano station, testified he saw two men bending over a third man who was on the ground. Yarger saw both men hitting the man on the ground, so he yelled at them. Yarger testified both suspects wore baseball caps. Christopher Creed, who was in Haggard Park located next to the downtown Plano station, testified he saw two men hit a third man in the back of the head, then continue hitting and kicking the man when he fell to the ground. When Creed yelled at the men, they threw knives on the ground and ran across the tracks. Creed testified both men wore white T-shirts, but only one of the men was wearing a white hat.         Jaclyn Basilone, the second complainant, testified she and her friend Daniel Jackson sat in her Ford Explorer, that was parked about one-hundred yards from where people exit the train in downtown Plano, when two men opened the doors on either side and said they had been attacked by a man who was probably a “white supremacist from the KKK.” They asked for a ride to the Parker Road station. Basilone testified one of the men wore a “fair-colored” shirt with what looked like blood stains on it. The men got into the back seat while Basilone drove them to the Parker Road station. One of the men grabbed Basilone's purse when he exited the car. The other man opened the driver's side door, unbuckled her seatbelt, put his forearm against her throat, and ordered her to get in the back seat and give him everything she had or he would kill her. Basilone stepped on the gas and sped away, causing the man to fall down in the street. Basilone returned to the downtown Plano station and talked with the police. An officer later drove Basilone to the Parker Road station and asked her to look at two suspects. Basilone saw two handcuffed men leaning against a patrol car. Basilone testified she could not identify either man as the robber, stating she was “unsure.” At trial, Basilone testified she could not identify the men at the scene because she was “too upset” at the time, and could not identify appellant in open court as one of the robbers because she was driving and did not look back at either man at the time.
        Daniel Jackson positively identified appellant at the scene and in open court as one of the men who robbed Basilone. Jackson testified he was with Basilone when appellant and another man said they needed a ride because they had just been beaten up by the KKK. While Basilone drove the men to the Parker Road station, Jackson, who was sitting in the front passenger seat, let one of the men use his cell phone. The man refused to return Jackson's phone when they stopped at the station. Jackson saw the man take Basilone's purse as the man got out of the car. Jackson saw the other man put his arm against Basilone's throat, push her back against the seat, then fall to the ground when Basilone stepped on the gas. Jackson testified a police officer later drove him back to the Parker Road station and asked if he saw the suspects. Jackson positively identified appellant and Smith at the scene as the men who robbed Basilone. After Jackson identified appellant and Smith, an officer called Jackson's cell phone number. Jackson's phone rang in Smith's pocket. Jackson testified he was shown a photograph of appellant by an investigator the day before the trial.
        Vincent Tucker identified appellant in open court as one of the men who was arrested after Tucker gave him and another man a ride to the Parker Road station. Tucker testified appellant and another man walked up behind him in the parking lot of a grocery store and said they got “jumped by KKK.” The men wanted a ride to a DART station in Dallas even though the Parker Road station was across the street from the grocery store's parking lot. Tucker had finished work at the grocery store and told the men he could only take them to the station across the street. Tucker testified both men wore hats, and one of the men held a white shirt in his hands. Tucker testified appellant was the man holding the white shirt. Appellant got in the front passenger seat and put the shirt under the seat. When Tucker drove to the Parker Road station, he saw the police. Appellant and the other man told Tucker to “get going and not stop.” An officer approached the car, questioned all of them, then detained appellant and the other man. After Tucker gave the officers consent to search his vehicle, an officer pulled a white T-shirt with blood stains on it from under the front passenger seat. Tucker wrote out a statement for the police, then went home.
        Officer Larry Going saw appellant and Smith getting out of a car at the Parker Road station. They matched the description of two suspects who had robbed a man and woman at the downtown Plano station, who witnesses said wore white T-shirts and white baseball caps. Going testified he determined the driver, identified as Vincent Tucker, was not one of the suspects even though he was about the same age and physical size as appellant because Tucker wore khaki pants and a “Minyards” work shirt. Appellant, who sat in the front passenger seat of Tucker's vehicle, wore a light blue shirt, and Smith, who got out of the back passenger seat, wore a white T-shirt and white baseball cap. When Going questioned the men, appellant gave a false name, stating his name was Anthony Terrell Pam. Smith gave his true name. Going detained appellant and Smith, then told other officers to bring witnesses to the Parker Road station at separate times. Going testified appellant was not placed in handcuffs until after he was identified by the first witness.
        After receiving consent to search Tucker's vehicle, officer Jennifer Chapman found a blood- stained white T-shirt on the front passenger floorboard. Chapman testified none of the witnesses identified Tucker as a suspect, even though Tucker was viewable from where the witnesses were sitting in patrol cars. None of the witnesses mentioned seeing any tattoos on the suspects' arms, even though appellant has tattoos on both arms. Officer Rick Wilson testified he processed Basilone's vehicle and two knives found within thirty feet of the assault for fingerprints. One print taken from the vehicle did not match anyone, but a print taken from the larger knife match Smith.
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and 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, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The standard is the same for both direct and circumstantial evidence cases. See Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex. App.-Dallas 2004, no pet.). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007), petition for cert. filed, (U.S. July 17, 2007) (No. 07- 5500); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), petition for cert. filed, (U.S. Mar. 13, 2007) (No. 06- 11318). Unless the record clearly reveals a different result is appropriate, we must defer to the fact- finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        To obtain convictions for robbery, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly, while in the course of committing theft, (1) threatened and placed Jaclyn Basilone in fear of imminent bodily injury and death, and (2) caused bodily injury to Robert Shannon. See Tex. Pen. Code Ann. § 29.02(a) (Vernon 2003).
        The jury was instructed it could find appellant guilty if it found he acted as a party to the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. See id. § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See id. § 7.02(a)(2). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, and after commission of the offense. Michel v. State, 834 S.W.2d 64, 67 (Tex. App.-Dallas 1992, no pet.).
 
 
Discussion
 
        Appellant argues the evidence is legally and factually insufficient because another person fit the description of the assailant, but officers singled out appellant. Appellant asserts the witnesses's identifications were tainted because (1) officers told witnesses at the scene that the robbers had been caught before they identified appellant, and (2) no witness mentioned seeing tattoos on the assailants' arms, even though appellant has tattoos on both arms. The State responds that the evidence is legally and factually sufficient to support the jury's verdict in both cases.
        The jury was charged it could find appellant guilty of two counts of robbery as a principal, a party to the offense, or not guilty. Appellant was apprehended near the scene of both robberies shortly after they occurred. Three witnesses positively identified appellant at the scene and in open court as one of two men who committed the robberies. Shannon testified appellant followed him off the train, assaulted him, and took his wallet. Moore testified she sat on the train facing appellant for twenty minutes before seeing appellant follow Shannon off the train and attack Shannon. Jackson positively identified appellant as one of two men who robbed Basilone.
        Going testified police officers had a description of the robbery suspects as being young men wearing white T-shirts and white baseball caps. When arrested, appellant was wearing a light-blue shirt and Smith was wearing a white T-shirt and white baseball cap. Going testified that although Tucker was in the vehicle with appellant and Smith, Tucker was not a suspect because he was dressed differently. Tucker was wearing a work shirt with the name of a grocery store across the front. Going also testified an officer found a blood-stained white shirt under the seat in Tucker's car where appellant had been sitting. Tucker testified that when appellant was asking him for a ride, appellant held a white T-shirt in his hand. Tucker positively identified appellant as the man who sat in the front passenger seat of the car.         We conclude the sum total of the evidence is sufficient to support a rational jury's finding beyond a reasonable doubt that appellant participated in the two robberies, and is legally and factually sufficient to support the conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92; Michel, 834 S.W.2d at 67. We resolve appellant's issues against him.
        We affirm the trial court's judgment in each case.
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070220F.U05
 
Footnote 1 In each case, appellant was indicted under the name Anthony Terrell Pam. However, at trial appellant testified his true name is Marvin Sherrell Preston.
Footnote 2 Dallas Area Rapid Transit