DAVID ANTHONY COOKS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 21, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01575-CR
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DAVID ANTHONY COOKS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-72075-U
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OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Whittington
        David Anthony Cooks appeals his conviction for robbery. After finding him guilty, the trial judge assessed punishment at five years' confinement and a $1500 fine. In four issues, appellant claims the evidence is legally and factually insufficient to support his conviction, the trial judge erred in failing to pronounce sentence and grant him the right of allocution, and the judgment should be reformed to reflect the correct enhancement paragraph. We affirm the trial court's judgment.
        In his first and second issues, appellant claims the evidence is legally and factually insufficient to support his conviction. Under these issues, appellant contends the State did not establish appellant was the individual who committed the robbery and that the testimony of the complainant, Naraj Krishna, failed to establish the “requisite fear and taking for a robbery conviction.” We disagree.
        When reviewing sufficiency of the evidence challenges, we employ well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). Under a legal sufficiency review, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The fact finder is the sole judge of the witnesses' credibility and the weight to be given their testimony and, as such, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In circumstantial evidence cases, it is unnecessary for every fact to point directly and independently to appellant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Russell v. State, 665 S.W.2d 771, 776 (Tex. Crim. App. 1983)).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the verdict. Watson, 204 S.W.3d at 417. We cannot conclude a conviction is “clearly wrong” or “manifestly unjust” simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. The judge, as fact finder, is in the best position to evaluate the credibility of the witnesses, and our factual-sufficiency jurisprudence still requires an appellate court to afford “due deference” to the fact finder's determinations. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied 128 S. Ct. 87 (2007). Although the reviewing court is permitted “to substitute its judgment” for the fact finder's when considering credibility and weight determinations, it may do so only “to a very limited degree.” Marshall, 210 S.W.3d at 625 (citing Watson, 204 S.W.3d at 417).
        A person commits the offense of robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003). A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2008). Fingerprint evidence alone is sufficient to sustain a conviction if the evidence shows that the prints were necessarily made at the time of the offense. See Phelps v. State, 594 S.W.2d 434, 436 (Tex. Crim. App. [Panel Op.] 1980) (capital murder); Bowen v. State, 460 S.W.2d 421, 423 (Tex. Crim. App. 1970) (burglary); Scott v. State, 968 S.W.2d 574, 578 (Tex. App.-Austin 1998, pet. ref'd) (attempted capital murder).   See Footnote 1  An important factor is the accessibility of the fingerprinted object to the defendant. Phelps, 594 S.W.2d at 436. The court of criminal appeals has held the evidence sufficient “where highly unlikely possibilities could account for the presence of the defendant's fingerprints in a manner consistent with innocence.” Id. (citing Mann v. State, 420 S.W.2d 614, 606 (Tex. Crim. App. 1967) and Gonzales v. State, 399 S.W.2d 360, 361 (Tex. Crim. App. 1966)).
        At trial, Krishna testified that, on April 4, 2007, he lived in the Amesbury Apartments in Dallas. He had moved into a one-bedroom apartment in the complex four days before. Krishna drove a four-door 1994 Nissan Pathfinder with a rear hatch door and tinted windows. The car did not have an alarm system, and the car key would not unlock the driver side door. The passenger side door did not have an outside handle and could be opened only from the inside. The two backseat doors did not have key locks to unlock from the outside. If Krishna locked his vehicle, he would have to open the rear hatch door to unlock the car. He would then have to crawl over the rear seats into the front seat to drive. Because of this, Krishna usually left his car unlocked but kept the windows closed. On April 4, he parked his car near the front gate of the apartment complex and went into his apartment. Around 8:30 p.m., he left his apartment and walked toward his car. It was completely dark outside; there was no traffic and no parking lot lights. Krishna was talking to a friend on his cell phone. After he walked around the transformer box outside his apartment, he could see a shape in the front driver's seat of his car. He told his friend he thought someone was in his car. Krishna opened the door and yelled, “[A]re you trying to rob me?” Krishna testified he had not given anyone permission to be in his car or take things from his car.
        The person in the car had a big travel duffle bag in his hands. He was surprised and began to get out of the car. Krishna reached for the bag and, at the same time, pushed the person. Suddenly, it occurred to Krishna that this “could become a pretty dangerous situation,” so he began to back away. The person reached inside the duffle bag and said, “I'll shoot you in your face.” Krishna turned around, ran, and screamed. He looked back and saw the person exit the front gate and head down the street. Krishna immediately called the police.
        On cross-examination, Krishna admitted the locks on his car had not been working for about one month. He also testified he was unable to identify the person because it was dark outside and “it happened fast.” On redirect, Krishna testified he had a cell phone box in his car along with a couple of other boxes. He put those boxes in his car around 8 p.m. on Monday, April 2, when he finished moving out of his old apartment. Although his locks did not work, nothing in his car looked disturbed or taken until after he discovered that person in his car. When asked if, after he opened the door, he was afraid for his life, Krishna responded, “Yes. When they said, I'll shoot you in the face, I started taking it pretty serious.” Krishna testified that prior to that, he “wasn't really taking into consideration what the situation could escalate to. So I wouldn't say I was afraid for my life. I thought that-I was scared to have to fight.”
        Detective Joseph Cameron Allen of the Dallas Police Department testified he was called out to the scene around 9 p.m. He processed Krishna's car for fingerprints. After Krishna told the officer what happened, Detective Allen noticed several items in the back seat that had been removed from a box, including a cell phone box with a high gloss surface. Detective Allen processed the cell phone box and was able to retrieve a latent print off the box. He also retrieved a print from an exterior door.
        Detective Teresa Turko with the Dallas Police Department testified as a fingerprint expert. She analyzed the fingerprints Detective Allen had retrieved and determined the one from the cell phone box was “of quality to run through AFIS” (Automated Fingerprint Identification System). The fingerprint matched one from appellant's left index finger. She took appellant's fingerprints on the morning of trial, compared them to the one lifted from the cell phone box, and concluded the print from the box and the prints she took from appellant on the morning of trial came from the same individual.
        Viewed in the light most favorable to the judgment, the evidence shows Krishna encountered a person in his car who he could not identify because it was night and there was no lighting in the parking lot. The person was in Krishna's car without Krishna's permission and threatened to shoot Krishna in the face when Krishna confronted him. When asked if he was afraid for his life when he opened the door, Krishna answered, “Yes.” Krishna turned, ran, and screamed. A cell phone box, which had been removed from a bigger box in the back seat of the car, had appellant's left index fingerprint on it. Until that night, the items in the back seat of Krishna's car had not been moved or disturbed. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for robbery.
        Furthermore, after reviewing all the evidence in this case and giving due deference to the fact finder's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude the great weight and preponderance of evidence contradicts the verdict. Because the fact finder was rationally justified in finding guilt beyond a reasonable doubt, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first and second issues.
        In his third issue, appellant contends the trial judge erred in failing to pronounce sentence and grant him the right of allocution. Under this issue, appellant claims article 42.07 of the Texas Code of Criminal Procedure requires a defendant “be asked whether he has anything to say why the sentence should not be pronounced” and that the trial judge's failure to do so requires we reverse this case and remand for a new punishment hearing. We disagree.
        As a prerequisite to presenting a complaint on appeal, Texas Rule of Appellate Procedure 33.1 requires the record show the complaint was timely made to the trial court, the grounds were specifically stated or were readily apparent from the context, the complaint complied with the rules of evidence or appellate procedure, and the trial judge ruled on the objection. Tex. R. App. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). “Except for complaints involving fundamental constitutional systemic requirements which are not applicable here, all other complaints based on a violation of both constitutional and statutory rights are waived by failure to comply with Rule 33.1.” Ibarra, 11 S.W.3d at 197. In this case, “[t]here were no objections to the court's failure to inquire of the appellant if [he] had anything to say why the sentence should not be pronounced.” Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. [Panel Op.] 1978). See also Johnson v. State, 740 S.W.2d 868, 872 (Tex. App.-Houston [14th Dist. 1987, pet. ref'd) (by failing to object to trial court's omission of allocution right questioning, appellant waived any error);
Demouchette v. State, 734 S.W.2d 144, 146 (Tex. App.-Houston [1st Dist.] 1987, no pet.) (same).
Nor does appellant contend any of the statutory reasons set out in article 42.07 of the code of criminal procedure existed that could or would have prevented the pronouncement of sentence. See Tenon, 563 S.W.2d at 623. Under these circumstances, we conclude appellant has not preserved this issue for appellate review. We overrule his third issue.
        In his fourth issue, appellant claims “the judgment should be reformed to reflect the correct enhancement paragraph to which appellant pleaded true and which the trial court found true.” The record reflects the indictment contained three paragraphs. The first paragraph charged appellant with committing robbery on or about April 4, 2007 and was the offense for which appellant was on trial. The second and third paragraphs were enhancement paragraphs referencing two prior felony convictions occurring December 30, 1994 and April 7, 1989 respectively. After finding appellant guilty, the trial judge stated:
        JUDGE:
 
The Court has found you guilty with what you're charged with. I talked to the attorneys in the back. The State has agreed to strike the second paragraph on the indictment, which will make this a first degree felony, the range of punishment being not less than five nor more than 99 years or life. It's my understanding that we will arraign the defendant on the third paragraph.
 
The record also contains the State's motion to strike words or paragraphs of the indictment in which the State requested the trial judge strike the second paragraph. The trial judge granted and signed the motion. Thus, the record clearly shows the second paragraph of the indictment was stricken, leaving only the prior felony offense contained in the last enhancement paragraph. Because there was only one prior felony offense alleged in an enhancement paragraph, it follows that the trial court's judgment correctly reflects that appellant pleaded true to the first, and only, enhancement paragraph. We overrule appellant's fourth issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071575F.U05
 
Footnote 1 At the time both Phelps and Bowen were decided, the jury in any circumstantial evidence case was instructed that, before the jurors could convict the defendant, they were required to find the evidence negated every reasonable hypothesis other than that hypothesis establishing the guilt of the defendant. See Geesa v. State, 820 S.W.2d 154, 157 (Tex. Crim. App. 1991). Since the “reasonable hypothesis analytical construct” was abrogated in the Geesa opinion, however, the State is no longer required to negate every reasonable hypothesis other than the one establishing a defendant's guilt and is required only to establish the guilt of the defendant beyond a reasonable doubt. Geesa, 820 S.W.2d at 155. The abrogation of the reasonable hypothesis analysis does not alter our analysis in this case nor does it lessen the importance of fingerprint evidence found at a crime scene.