JASON PEREZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed May 4, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00934-CR
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JASON PEREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F08-41642-V
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OPINION
Before Justices Bridges, FitzGerald, and Fillmore
Opinion By Justice Fillmore
        A jury convicted appellant Jason Perez of robbery. After finding two enhancement paragraphs true, the trial court assessed punishment at forty-five years' imprisonment. In two issues, Perez contends the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
Background
 
        Carlos Gallegos got off work from his job as an automobile mechanic at approximately 11:00 p.m. After stopping to purchase groceries, Gallagos drove to his apartment complex close to Interstate 635 in Mesquite. As he pulled into the complex parking lot at approximately 12:30 a.m., Gallegos noticed a dark-blue, 1980s model Suburban following him. Gallegos parked his car, and the Suburban parked six spaces to the left. As Gallegos retrieved four grocery bags from his car, he saw the driver and the front seat passenger get out of the Suburban and switch places. The driver wore a white sleeveless undershirt and white shorts, and the passenger wore a dark-colored shirt.
        Gallegos began walking toward his apartment with the groceries in his arms. The man wearing the white sleeveless shirt and white shorts approached Gallegos, held a gun to his head, and demanded his wallet and jewelry. Gallegos saw tattoos on the man's neck, arms, and legs. The man “clicked” the gun “like he was ready to kill,” and a red laser dot shone on Gallegos's face. The man said he would kill Gallegos if he did not comply. Gallegos told the gunman to take everything and “[J]ust leave me the hell alone.” The man reached into Gallegos's pants pockets and said, “[L]et me have your gold.” When Gallegos said he did not have any gold, the man took his keys and wallet, then ran to the Suburban. At trial, Gallegos identified Perez as the gunman.
        Gallegos testified he dropped the groceries after Perez got into the Suburban and used his cell phone, which had been in his shirt pocket, to call 911. Perez told the dispatcher he had been robbed at gunpoint by “a Hispanic man wearing a white pullover shirt and white shorts.” He also told the dispatcher the man left in a “1980s model dark-blue Suburban” and the Suburban turned north onto Interstate 635.
        Mesquite police officer Francisco Aranda testified the 911 call from Gallegos came in at 12:40 a.m. Aranda responded to the robbery call by driving in the direction that the dispatcher said the suspect vehicle was traveling. Aranda testified he was looking for a 1980s model dark-blue Suburban carrying an Hispanic male wearing a white shirt and khaki or yellow shorts. At 12:44 a.m., Aranda saw the Suburban exit Interstate 635 and turn into a gas station located 2.4 miles from Galageos's apartment complex. The driver, Jaron Edwards, and the front seat passenger, Marcos Hernandez, got out of the Suburban and walked toward the station's convenience store. Aranda grabbed a rifle from his patrol car and confronted the two men, ordering them to get on the ground. Other officers arrived at the station and got Roberto Zarate, who was in the back seat behind Hernandez, and Perez, who was in the back seat behind the driver, out of the Suburban. According to Aranda, of the four men, Perez was the only one wearing a white “tank-top” shirt and light- colored shorts.
        Officer Bo Davenport testified he saw the Suburban exit the highway and turn into the gas station. Then he saw Aranda turn into the station behind the Suburban. When Davenport arrived at the station, there were two suspects outside the vehicle being detained by Aranda. Davenport ordered two more individuals to get out of the Suburban's back seat. Perez was sitting behind the driver's seat, and Zarate was sitting behind the front passenger seat. Davenport lined up the four men and illuminated them with the patrol car's spotlights. Davenport testified neither Hernandez nor Zarate had visible tattoos or wore white shirts and Edwards was a black male. Additionally, both Hernandez and Zarate had hair while Perez had a shaved head. Further, Hernandez was eleven years younger that Perez and twenty-five pounds heavier. Mug shots taken by the police of the four men when they were booked into jail were admitted into evidence and shown to the jury. Photographs of Perez taken after he was arrested show he had a shaved head, wore a white sleeveless shirt, and had visible tattoos on his neck, arms, and legs.
        Gallegos testified he was taken to the gas station and recognized the dark-blue Suburban parked at a gas pump. Gallegos saw several officers standing with four individuals, three Hispanic males and one black male. The officers used their patrol cars' spotlights to illuminate the four men. Gallegos immediately identified Perez as the gunman who had robbed him. Gallegos testified that of the four suspects, Perez was the only one wearing a white shirt and shorts and having visible tattoos. After Gallegos identified Perez, the officers searched the Suburban and found Gallegos's keys and wallet. However, Gallegos's driver's license, social security card, and credit cards were not found.
        Officer Stephen Birk testified the suspects were already detained when he arrived at the gas station. Birk searched the Suburban, specifically looking for a black handgun with a laser on it that was reportedly used in the robbery. Birk found a set of keys that belonged to Gallegos in the driver's side door and a blue bag that contained Gallegos's wallet in the middle of the back seat. Birk also found a black BB gun with a laser on it underneath the driver's seat. The gun was easily accessible by Perez, who had been sitting behind the driver.
Discussion
 
        In two issues, Perez contends the evidence is legally and factually insufficient to support the conviction because an “impermissibly suggestive show-up”   See Footnote 1  caused Gallegos to mistakenly identify Perez as the robber. Specifically, Perez argues there are two reasonable alternative hypotheses that support someone other than Perez being the robber: (1) the actual gunman was dropped off prior to the officers observing the Suburban, or (2) Gallegos confused Perez with Hernandez.
        In reviewing a challenge to the legal sufficiency of the evidence, we examine all of the evidence in the light most favorable to the verdict to 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); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The evidence need not exclude all alternative reasonable hypotheses in order to be legally sufficient. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999); Herrero v. State, 124 S.W.3d 827, 834 (Tex. App.-Houston [14th Dist.] 2003, no pet.); see also Clayton, 235 S.W.3d at 778 (“When the record supports conflicting inferences, we presume that the fact-finder resolved the conflicts in favor of the prosecution and therefore defer to that determination.”).
        When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The evidence is factually insufficient (1) if the evidence supporting the conviction is too weak to support the verdict, or (2) when the evidence supporting the verdict is outweighed by the great weight and preponderance of the contrary evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). We may set aside a verdict based on factual insufficiency only when necessary to prevent manifest injustice. Laster, 275 S.W.3d at 518. In a factual sufficiency review, we are permitted to substitute our judgment for the fact finder's when considering credibility and weight determinations, but only to a “very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon, 253 S.W.3d at 706.
        The existence of alternative reasonable hypotheses may be relevant to, but is not determinative in, a factual sufficiency review. Wilson, 7 S.W.3d at 141. However, it is the jury that accepts or rejects reasonable equal competing theories of causation, and we may not find the evidence to be factually insufficient merely because there is an alternative reasonable hypothesis. Steadman v. State, 280 S.W.3d 242, 247 (Tex. Crim. App. 2009); Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). We must have a “high level of skepticism about the jury's verdict” before we may reverse based on factual insufficiency. Steadman, 280 S.W.3d at 246-47         Gallegos testified he clearly saw Perez point a gun at his head and demand his wallet, money, and jewelry. Gallegos called 911 at 12:40 a.m. and told the dispatcher the robber was Hispanic, was wearing a white, sleeveless T-shirt and white shorts, and had visible tattoos on his neck, arms, and legs. Gallegos also said the robber was in a dark-blue Suburban heading north on Interstate 635. At 12:44 a.m., Aranda saw the Suburban approximately two-and-one-half miles from Gallegos's apartment. Perez was in the backseat of the Suburban behind the driver. A gun was under the driver's seat, and a bag containing Gallegos's wallet was between Perez and Zarate.
        Gallegos positively identified Perez as the robber both at the gas station and in court. Aranda and Davenport testified that, although they detained four suspects, Perez was the only one who wore clothing similar to that described by Gallegos in his 911 call and who had visible tattoos on his neck, arms, and legs. The jury saw photographs of Perez and the other three men taken when they were booked into the jail and heard testimony about the differences between the men's appearances and ages. Perez's counsel cross-examined the witnesses about Gallagos's description of the robber, the possibility the Suburban stopped between the apartment complex and the gas station, the possibility the four men could have changed clothes, and the fact some of Gallegos's property was not recovered.
        Perez essentially argues Gallegos's identification of him as the robber was not credible. However, the jury is best positioned to evaluate the credibility of any testimony presented to it, and we must afford due deference to its determination. Williams, 235 S.W.3d at 750; Lancon, 253 S.W.3d at 706. The jury was free to believe or disbelieve any and all of the evidence presented by either side. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Lancon, 253 S.W.3d at 707.
        Viewing the evidence in the light most favorable to the verdict, we conclude a rational juror could have found Perez was the robber. Further, we cannot we say the evidence is too weak to support the jury's finding that Perez was the robber or that this finding is against the great weight and preponderance of the evidence. Accordingly, the evidence is legally and factually sufficient to support the jury's verdict. We resolve appellant's two issues against him and affirm the trial court's judgment.
 
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
090934F.U05
 
Footnote 1 At trial, Perez did not object to either the procedure used during the “show-up” at the gas station or to Gallegos's in-court identification of Perez as the robber. Accordingly, he has failed to preserve error with regard to any challenge to either identification. Perry v. State, 703 S.W.2d 668, 670-71 (Tex. Crim. App. 1986) (without an objection to in-court identification or to testimony based on impermissibly suggestive identification procedure, no error is preserved); Luster v. State, 85 S.W.3d 865, 869-70 (Tex. App.-Eastland 2002, pet. ref'd).