Robert Crosby v. The State of Texas--Appeal from 185th District Court of Harris County

Issued November 15, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-01137-CR

ROBERT CROSBY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1070657

MEMORANDUM OPINION

In a non-jury trial, the trial court convicted appellant Robert Crosby of aggravated robbery and sentenced him to five years imprisonment. In one issue, Crosby challenges the factual sufficiency of the evidence to support his conviction. We conclude that the evidence is factually sufficient and, therefore, affirm.

Background

In May 2006, Ramon Barahona was walking to the store when two men approached him. Both men wore hooded sweatshirts (or sweaters), one black and one red. When the men got close to Barahona, the man wearing the red sweatshirt, later identified as Darnel Robinson, drew a gun and demanded Barahona s money. The other man, Crosby, stood to the side, kept his hands in his pockets, and looked around. Barahona grabbed Robinson s wrist and hit the gun, which caused the clip to fall out. Barahona managed to pick it up before running away. On his way to a store to use the telephone, Barahona saw the two men walk toward nearby apartments.

Houston Police Department Officer J. Hutchison was patrolling the area when she heard a radio call identifying two robbery suspects that a woman anonymously had called 911 to report. Hutchinson spotted two males matching the caller s description crossing a street, and she pursued them into a store parking lot. Officer Hutchison saw the males split up, and decided to follow Robinson, who was wearing a red sweatshirt, to the back of the parking lot because he appeared to be carrying something. She apprehended him and put him in the back of her police car. After arresting Robinson, Officer Hutchinson apprehended and arrested the second suspect, Crosby. Although she lost sight of Crosby for a short period, she confirmed that she had seen him running with Robinson. After a search of the area, officers found a gun and a red sweatshirt in the store s back parking lot.

Barahona does not speak English, so he telephoned his nephew to meet him after the robbery, and to call the police. When his nephew arrived, they noticed nearby police cars and approached the police officers to report the robbery. When the officers realized that Barahona was describing the two men they had in custody, Officer Hutchison pulled Crosby and Robinson individually out of the police cars, and Barahona positively identified them as the men that robbed him.

At trial, Officer Hutchison identified Crosby as the man she saw running in front of the store, and Barahona identified him as the lookout during the robbery. Barahona admitted that he was more focused on the gun than on the perpetrators and that both men wore hoods when they robbed him. Barahona testified that neither man wore a sweathshirt when he identified them after their arrest. Officer Hutchison could not remember the clothes they were wearing when she arrested them, nor could she recall whether police recovered a black jacket.

Before Crosby s trial, Robinson, a juvenile, pled guilty to aggravated robbery. Robinson testified at Crosby s trial that he committed the robbery alone and that he does not know Crosby. Crosby, who has been convicted previously for six misdemeanor trespasses and two misdemeanor thefts, testified in his own defense. He stated that he was out for a walk the day of the robbery, and cut across the parking lot as a shortcut when the officer arrested him. He denied knowing Robinson and denied that he wore a sweatshirt that day.

Factual Sufficiency

A. Standard of Review

In evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a verdict is clearly wrong or manifestly unjust simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson, 204 S.W.3d at 417. Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury s resolution of that conflict. Id. Rather, before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury s verdict. Id. We must also discuss the evidence that most undermines the jury s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

B. Aggravated Robbery

A person commits the offense of robbery if, in the course of committing theft as defined in Chapter 31 and with 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. Pen. Code Ann. 29.02(a)(2) (Vernon 2003). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. Id. at 31.03(a) (Vernon 2003). A robbery is aggravated when a person commits robbery as defined in section 29.02, and he uses or exhibits a deadly weapon. Id. at 29.03(a)(2) (Vernon 2003). 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. Id. at 7.02(a)(2) (Vernon 2003).

Crosby contends that the evidence linking him as a party to the aggravated robbery is factually insufficient to support the verdict. He focuses on the State s witnesses, asserting that their testimony was so weak that the trial court s finding is manifestly unjust. The State presented two witnesses that testified that Crosby participated in the robbery, and the defense put forward two witnesses who contradicted them. First, Crosby observes that Barahona admitted that he was more focused on the gun than on the robbers, and that the jacket hood impaired the lookout s face. Further, Crosby asserts that Barahona gave no identifying details about the accomplice s hair or dress. The record contradicts the second assertion. At trial, Barahona described the lookout as wearing a black sweater on a very hot day, being shorter than the man with the gun (Robinson), and having a little beard. Moreover, Barahona had noticed Crosby and Robinson talking with each other immediately before Robinson pointed a gun at him.

Second, Crosby asserts that Officer Hutchison s testimony is weak because she could not recall the dispatcher s description of the suspects over the radio broadcast, nor the clothes that the suspects wore that initially attracted her attention. In addition, Officer Hutchison stated that she did not recall if Crosby wore a black sweatshirt when she apprehended him and did not know if a black sweatshirt was recovered. However, she identified Crosby as the man she witnessed running with Robinson, speaking with him, and then moving in different directions.

In addition, Crosby points out that Robinson testified on his behalf, and stated that Crosby was not part of the robbery and that he was not previously acquainted with him.

The trial court credited the testimony of the State s witnesses over the testimony of the defense s witnesses. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented, and we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Crosby contends that the trial court should not have placed so much weight on the testimony of the State s witnesses. However, a [fact-finder s] decision is not manifestly unjust merely because the [fact-finder] resolved conflicting views of evidence in favor of the State. Herrero v. State, 124 S.W.3d 827, 835 (Tex. App. Houston [14th Dist.] 2003, no pet.). We defer to the court s findings, and conclude that the State's evidence was not so obviously weak or contrary to the overwhelming weight of the evidence as to be factually insufficient. We therefore hold that factually sufficient evidence supports the verdict.

Conclusion

We hold that the evidence is factually sufficient to support the conviction and therefore affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

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