Fernando Lancon v. The State of Texas--Appeal from 49th Judicial District Court of Webb County

DISSENTING OPINION

No. 04-05-00164-CR

Fernando LANCON,

Appellant

v.

The STATE of Texas ,

Appellee

From the 49th Judicial District Court, Webb County, Texas

Trial Court No. 2004CRN000281-D1

Honorable Manuel R. Flores , Judge Presiding

Opinion by: Sarah B. Duncan , Justice

Dissenting opinion by: Rebecca Simmons , Justice

Sitting: Sarah B. Duncan , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: December 27, 2006

Because I apply Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), differently than does the majority, I must respectfully dissent. The majority finds the conviction of Fernando Lancon is against the great weight and preponderance of the evidence. I believe that the weight of the eyewitness testimony, combined with the deference to be given to jury determinations of credibility, supports the conviction.

Testimony Regarding Eyewitness Identification

The majority's opinion views all the evidence in a neutral light and then attempts to weigh the evidence, both pro and con, in accordance with Watson. Great weight is given to what the majority characterizes as the "objective" unreliability of Dominguez's and Diaz's eyewitness identification of Fernando Lancon as the shooter. Likewise, great weight is accorded to testimony identifying Eduardo as the shooter. Yet, the jury alone is the appropriate judge of the credibility and the weight to be given the witnesses' testimony and they must have found Dominguez's and Diaz's testimony more credible than the testimony of the defense witnesses. (1)

During cross-examination defense counsel extensively cross-examined witnesses regarding the identification of Fernando as the shooter, pointing out inconsistencies and the unlikely conclusion that within twenty minutes after the shooting, Fernando changed cars, changed clothes, disposed of the murder weapon, dropped off Villarreal, washed his hands to remove the gunshot residue, and then came back to the scene of the shooting. Furthermore, defense counsel raised multiple inconsistencies regarding the testimony of the two eyewitnesses, including clothing descriptions provided by the two witnesses and evidence that the shooter was right-handed and that Fernando was left-handed. Moreover, as the majority points out, defense counsel even elicited admissions that both eyewitnesses had smoked marihuana on the day of the incident and the evening before trial. The jury sifted through the extensive testimony and seemed to find the evidence of Dominguez and Diaz more compelling than the other evidence. The jury's conclusion is supported by the evidence.

Dominguez testified that he knew both Eduardo and Fernando prior to the incident - he was in the sixth grade with Eduardo and saw Fernando daily at school. He conceded that Fernando and his brother looked alike, but that he was "one-hundred percent" sure that the individual shooting at him was Fernando Lancon. Diaz, on the other hand, acknowledged that he did not know Villarreal or Fernando prior to that evening, but identified both individuals in court as the individuals that exited the maroon car in front of the Soliz residence, and that he saw Fernando pointing a gun at Dominguez. When questioned about Fernando's physical resemblance to that of Eduardo, Diaz admitted that they looked alike and it was possible that he could be confused. Diaz, however, testified that he believed it was Fernando Lancon that exited the vehicle that night.

Credibility Determinations

Despite the lack of certitude, the evidence includes not only Dominguez's and Diaz's in-court identifications of Fernando, but also their descriptions of the shooter on the night in question and their photo line-up identifications. Some inaccuracies in a witness' description do not automatically render the evidence insufficient. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982);see Escovedo v. State, 902 S.W.2d 109, 115 (Tex. App.--Houston [1st Dist.] 1995, writ ref'd). Moreover, it is well established that a conviction may be based on the testimony of a single credible eyewitness. Davis v. State, 831 S.W.2d 839, 842 (Tex. App.--Dallas 1992, pet. ref'd) (holding that positive identification by victim was sufficient to sustain conviction, even though defendant offered five alibi witnesses that he was in another state at the time of the crime); Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd) (direct physical evidence is not necessary when the victim's testimony sufficiently supports conviction).

Furthermore, the majority relies on Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000), that in certain instances credibility can be determined from a cold record. Johnson, however, is distinguishable from the current case because this shooting occurred in front of a house, the shooter was within three to ten feet from the witnesses, whose view was not obstructed, and Dominguez recognized Lancon as someone with whom he was already well acquainted. In its application of Watson's two prong test, the majority determines that the jury's implicit finding that Fernando, rather than Eduardo, was the shooter is greatly outweighed by the contrary evidence. See Watson, 204 S.W.3d at 414-15 at *8. The very basis of this determination rests on the credibility of the witnesses' testimony and fails to acknowledge that such determinations must remain solely within the purview of the jury. As the Court of Criminal Appeals stated:

In reaching our conclusion in this case we have not overlooked the general rule, frequently announced, that the credibility of witnesses and the weight to be given their testimony exclusively rests with the jury and the lower court. Further, that this court will not pass on the sufficiency of the evidence unless there is an entire failure of proof. . . .

Id. at 411; see also Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (holding that appellate review defers to the fact-finder's determination of the credibility of the evidence); Cain v. State, 958 S.W.2d 404, 407 & nn.4-5 (Tex. Crim. App. 1997).

Conclusion

The jury heard all of the contrary evidence and obviously found Dominguez's and Diaz's testimony more credible than that of the opposing witnesses. The amount of weight to be given any particular testimony, or the amount any testimony should be discounted, must come from the jury alone and not from an appellate court. Moreover, I cannot agree the contrary evidence leads to an entire failure of proof and I am therefore unable to conclude that the evidence is so weak as to be clearly wrong and manifestly unjust.

Accordingly, I would affirm the judgment of the trial court.

Rebecca Simmons , Justice

P ublish

1. While the jury implicitly determined Fernando Lancon to be the shooter, they did not convict Zuniga as the driver. The jury was able to review all the evidence and reach a different conclusion as to these two defendants.