Bengie Dejohn Francis v. The State of Texas--Appeal from 177th District Court of Harris County

Opinion issued November 29, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00794-CR

BENGIE DEJOHN FRANCIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1046748

MEMORANDUM OPINION

A jury convicted appellant, Bengie Dejohn Francis, of aggravated robbery // and assessed punishment at imprisonment for 20 years. In three points of error, appellant argues that the evidence is (1) legally insufficient to support his conviction as a primary actor or under the law of parties and (2) factually insufficient to support his conviction.

We affirm.

Facts

On July 30, 2005, the complainant, Julius Obilana, arrived at the apartment complex of Deshaye Kennedy, a woman he had met only once before. Upon arrival, the complainant walked with Kennedy and one of her friends toward Kennedy s apartment, but, seeing the open door and the dark interior, he became suspicious and tried to return to his car. Two men appeared behind him, one displaying a gun. They commanded him to lie on the ground, saying, Lay [sic] down, don t say anything. Don t make me hurt you. Then two men and two women surrounded the complainant, and someone took his wallet, car keys, phone, and watch. After they had searched all of his pockets, they told the complainant to run in one direction, and they fled in the opposite direction.

The complainant immediately ran to a nearby police sub-station and reported the robbery. Officer E. Sotuyo accompanied him back to the scene, where the officer encountered Kennedy, who stated that she knew the complainant had been robbed, but she was in a neighboring apartment at the time. The interview with her raised the officer s suspicion that she may have been involved with the planning of the robbery. Officer Sotuyo processed the scene, but was unsuccessful in finding the complainant s wallet or taking fingerprints from the complainant s car. The officer released the car to the complainant, but, without a car key, the complainant was unable to take his vehicle home that evening.

When the complainant returned to the apartment complex the following morning, his car was missing. Later that day he spotted appellant driving his vehicle at a shopping center and recognized appellant as the gunman from the previous night s robbery. While the complainant attempted to contact the police, appellant apparently saw the complainant watching him, abandoned the vehicle, threw the keys into the street, then departed in a different vehicle.

Investigating Officer J. Miller subsequently arrested DeShaye Kennedy in connection with the robbery. Kennedy fully identified appellant, and partially identified appellant s brother, John Zachary Couvson, and his sister, Sabrina Francis, as the other parties to the robbery. During appellant s trial, Kennedy testified that she, appellant, Couvson, and Francis were active participants in the planning of the robbery, but that appellant and Couvson together committed the robbery standing in front of the complainant, threatening him, and robbing him while Couvson held the gun. Kennedy was to bring the complainant to her apartment, then the men were to appear, pretend to scare off the women, and rob the complainant. She testified that both men talked about having a gun to use in the robbery. Kennedy pleaded guilty for her part in the offense for a reduced charge of robbery prior to any charges being filed against appellant. She was not obligated by her plea to testify against appellant.

Once Kennedy had provided Officer Miller with appellant s name, Officer Miller generated a photographic array and contacted the complainant. The complainant positively identified appellant as the gunman. This identification took place approximately two months after the robbery occurred. The complainant was unable to identify appellant s sister in a second photographic array shown to him at that same time. When police finally discovered the surname of appellant s brother, seven months after the robbery, the complainant was shown a third photographic array that included an image of Couvson, but the complainant was unable to identify Couvson as a participant in the robbery.

During a custodial police interview, appellant changed his story repeatedly, swearing to statements that he later admitted at trial were lies, and finally acknowledging his presence at the scene. Nevertheless, appellant maintained that he had merely spotted his brother holding the gun and approached him, asking what was happening, and that he only briefly saw the complainant already on the ground. Appellant testified that he had no part in the planning or commission of the offense. Appellant also testified that the jury should not believe Kennedy s testimony, that she had incorrectly implicated him, and that he was an innocent passer-by to the events.

In his testimony at trial, the complainant was unable to identify the gunman in the courtroom and verbally described the gunman as having a complexion as black as the judge s robe. Yet, when he was shown the earlier photographic array, he once again positively identified the photograph of appellant as the gunman. Appellant, who is African-American, has a light complexion.

The trial court instructed the jury on the grounds for convicting appellant as both the primary actor and as a party. The jury returned a general verdict finding appellant guilty of aggravated robbery. The jury then assessed punishment at imprisonment for 20 years.

Standard of Review

When an appellant challenges both the legal and factual sufficiency of the evidence, we must first determine whether the evidence was legally sufficient to support the verdict. Harmond v. State, 960 S.W.2d 404, 406 (Tex. App. Houston [1st Dist.] 1998, no pet.). When reviewing the sufficiency of the evidence where the trial court authorized the jury to convict on more than one theory here, either as a primary actor or as a party a guilty verdict will be upheld if the evidence suffices on any single theory. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999).

We review the legal sufficiency of the evidence by viewing 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 crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. Id.

The Court of Criminal Appeals has broken down factual-sufficiency analysis into two prongs. First, we must ask whether the evidence introduced to support the verdict, although legally sufficient, is so weak that the jury s verdict seems clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414 15 (Tex. Crim. App. 2006) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Second, we must ask whether, considering the conflicting evidence, the jury s verdict, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Id. at 415. In conducting this review, we view all of the evidence in a neutral light. Id. at 414. Furthermore, we should be mindful that a jury has already passed on the facts, so we cannot order a new trial simply because we disagree with the verdict. Id. What weight to give contradictory testimonial evidence is within the sole province of the jury because it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408 09 (Tex. Crim. App. 1997). Therefore, we must defer appropriately to the fact finder and avoid substituting our judgment for its judgment, and we may find evidence factually insufficient only when necessary to prevent manifest injustice. Id. at 407; see also Johnson, 23 S.W.3d at 12.

Analysis

Legal Sufficiency

In his first two points of error, appellant argues that the evidence is legally insufficient to prove that he committed aggravated robbery either as a principal actor or under the law of parties.

Guilt as a Primary Actor

Appellant was charged with aggravated robbery. A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property of another, 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. 31.03(a) (Vernon Supp. 2007). The offense of robbery is aggravated if the person commits any of the aggravating factors enumerated in section 29.03 of the Penal Code, including using or exhibiting a deadly weapon. Id. 29.03(a)(2) (Vernon 2003). Thus, to convict appellant as a principal, the State was required to prove that, in the course of committing theft and with the intent to obtain or maintain control of the property, appellant intentionally or knowingly threatened or placed the complainant in fear of imminent bodily injury or death and used or exhibited a firearm. See id. 29.02(a)(2), 29.03(a)(2), 31.03(a).

Appellant contends that because the complainant was unable to identify him in the courtroom as the gunman and because the complainant s trial testimony described the gunman s complexion as very dark, which was in contrast to appellant s light complexion, the State has not presented legally sufficient evidence to show that appellant was a primary actor in committing aggravated robbery.

Appellant contends that the complainant s identification of him as the gunman solely through the photographic array was not sufficient evidence that appellant was the gunman because the complainant failed to identify appellant in the courtroom. We disagree. The law does not require a courtroom identification when other evidence is presented establishing the culpability of the defendant. Conyers v. State, 864 S.W.2d 739, 740 (Tex. App. Houston [14th Dist.] 1993, pet. ref d) (citing Anderson v. State, 813 S.W.2d 177, 179 (Tex. App. Dallas 1991, no pet.)); see also Navajar v. State, 496 S.W.2d 61, 63 64 (Tex. Crim. App. 1973) (holding that tentative in-court identification was irrelevant when victim made positive identification from photograph 10 days after incident), overruled on other grounds by Rutledge v. State, 749 S.W.2d 50 (Tex. Crim. App. 1988). The complainant s identification of appellant as the gunman in the photographic array two months after the offense suffices to support the conviction. See id.

Appellant also argues that the complainant s inconsistent testimony about the comparative darkness of the gunman s complexion renders the evidence insufficient to support his conviction as a primary actor because his complexion is light. However, it is well established that a jury may choose to believe or not believe the witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Williams v. State, 226 S.W.3d 611, 615 (Tex. App. Houston [1st Dist.] 2007, no pet.); see also Escovedo v. State, 902 S.W.2d 109, 115 (Tex. App. Houston [1st Dist.] 1995, pet. ref d) (finding inconsistent testimony about appearance of tattoo was for jury to resolve). A jury may believe a witness even though some of his testimony may be contradicted, and part of his testimony may be accepted while the rest rejected. Sharp, 707 S.W.2d at 614. Here, the jury could have believed the complainant s testimony regarding his identification of appellant in the photographic array and disregarded any discrepancy in the description of appellant s complexion. See id. Furthermore, the jury s finding is supported by testimony from Kennedy establishing appellant s intent and his participation in the planning and execution of the robbery, and by appellant s own statement that he was present during the robbery. The complainant also testified that he saw appellant driving the stolen vehicle the day after the robbery and that his wallet, cellular phone, and watch were never returned to him. The foregoing evidence is legally sufficient for a rational jury to find beyond a reasonable doubt that appellant intentionally or knowingly threatened the complainant with a firearm in the course of committing the theft of the complainant s property. See Tex. Pen. Code Ann. 29.02(a)(2), 29.03(a)(2), 31.03(a); King, 29 S.W.3d at 562.

We overrule appellant s first point of error. //

Factual Sufficiency

In his third point of error, appellant contends that the evidence presented by the State is too weak to support a finding of guilt beyond a reasonable doubt and that the contrary evidence was strong enough that the State could not have met the beyond-a-reasonable-doubt standard.

Appellant argues that the most compelling evidence that undermines the verdict is the complainant s inability to identify him in the courtroom at trial. The complainant s inability to make a courtroom identification does not prevent the jury from reasonably relying on the complainant s identification of appellant in the photographic array. See Conyers, 864 S.W.2d at 740. The State presented evidence that the complainant identified appellant in a photographic array two months after the robbery, and the complainant testified at trial that he believed he correctly identified the man who pointed the gun at him during the robbery. The State also presented Kennedy s testimony that appellant was involved in the planning and commission of the robbery, and appellant himself admitted to being present at the time the robbery took place. Furthermore, the day after the robbery, the complainant saw appellant driving the complainant s vehicle. Even considering the conflicting evidence, the jury s verdict is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 415.

Appellant also argues that the evidence is factually insufficient because the complainant s description of the robber s skin does not match appellant s skin. Furthermore, appellant points to his own testimony regarding the events surrounding the robbery that he was coming to visit Kennedy and coincidentally happened upon the robbery but that he did not help to plan or commit the robbery.

These conflicts in testimony were presented to the jury at trial. Because this credibility determination was placed in the hands of the jury, the weight it chose to give to or withhold from each element in seeking resolution was solely within its province. See Cain, 958 S.W.2d at 408 09. The jury s decision to convict appellant on the basis of Kennedy s testimony and the other evidence against appellant in spite of the conflict regarding the shade of appellant s skin is not manifestly unjust simply because the jury resolved conflicting testimony in favor of the State. See id. at 410.

Thus, after examining all the evidence in a neutral light, we hold that the proof of guilt was not so weak that the verdict is clearly wrong or manifestly unjust; nor is the contrary evidence presented of such great weight and preponderance that it contradicts the jury s verdict. See Watson, 204 S.W.3d at 414 15.

We overrule appellant s third point of error.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

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