Richard Christopher Burdick v. The State of Texas--Appeal from 196th District Court of Hunt County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00033-CR

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RICHARD CHRISTOPHER BURDICK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 196th Judicial District Court

Hunt County, Texas

Trial Court No. 21,171

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Richard Christopher Burdick appeals his conviction by a jury for aggravated robbery with a deadly weapon. The jury found at least one of the enhancement paragraphs true and assessed Burdick's punishment at twenty years' imprisonment. Burdick argues that the evidence is factually insufficient to support the jury's verdict. We affirm the trial court's judgment.

On March 5, 2002, two or more intruders gained entry into Jason Campbell's house in Commerce, Texas. Charity Wilfred was asleep in Campbell's bedroom. Although Campbell had spent the night at the residence, he had already left for work before the robbery occurred. Wilfred awoke with a gun pointed at her head. She observed two intruders in the bedroom, a black man and a white man. Wilfred recognized the white male intruder who was holding the gun, although she could not remember his name. Wilfred testified she had met the intruder on several prior occasions. A bow, nine guns, and other items were stolen from the house. Wilfred later identified Burdick in a photographic line-up and at trial as the intruder holding the gun.

Burdick argues the evidence is factually insufficient to sustain his conviction for aggravated robbery with a deadly weapon. Burdick makes four arguments in support of his contention the evidence is insufficient: 1) the State's witnesses gave perjured testimony; 2) there was no evidence he ever possessed the stolen items; 3) the door was kicked from the inside; and 4) the evidence did not sufficiently identify him as the intruder. //

A factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In determining the factual sufficiency of the evidence to establish the elements of the offense, we view all the evidence in a neutral light and set aside the verdict only if it is so contrary to the great weight of the evidence as to be clearly wrong, or so weak as to be clearly wrong or manifestly unjust. Id. However, "[t]he court's evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony." Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

First, Burdick argues the State's witnesses gave perjured testimony concerning their sleeping arrangements the night before the burglary and concerning a voice mail message left by Campbell. Although Campbell testified he and Wilfred slept in the same bed the night before, Wilfred testified Campbell slept on the couch. John and Patina Gunther, friends of Burdick, testified Campbell left a message on John Gunther's voice mail which claimed that four African-Americans robbed his house. Campbell denied saying four African-Americans robbed his house, but claimed he left a message that one African-American man and one white man robbed his house. Burdick testified that he had heard the message and that Campbell was lying as to its contents. Inconsistent testimony simply raises credibility issues. "The court's evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony." Id. Since credibility issues are the sole province of the jury, this Court will not disturb the jury's conclusion unless it is against the great weight of the evidence or so weak as to undermine confidence in the verdict. The inconsistent statements do not undermine the witnesses' testimony to the extent necessary to make the evidence so weak as to be clearly wrong or manifestly unjust.

Second, Burdick contends none of the stolen items were ever shown to be in his possession. While finding the stolen items in the possession of a defendant is rather persuasive evidence he is guilty, the converse is not true. The State was only required to prove Burdick exhibited a deadly weapon and placed Wilfred in fear of imminent bodily injury or death while in the "course of committing theft." See Tex. Pen. Code Ann. 29.02(a)(2), 29.03(a)(2) (Vernon 2003). In the "course of committing theft" means "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." Tex. Pen. Code Ann. 29.01(1) (Vernon Supp. 2004). A person commits the offense of theft if he or she appropriates property with intent to deprive the owner of the property without his or her effective consent. Tex. Pen. Code Ann. 31.03 (Vernon 2003). Wilfred testified Burdick held a gun to her head while the men were wrapping the stolen guns in a blanket. She was "very scared" and thought she might die. Campbell testified he did not give consent to anyone to remove the guns from his house. Based on Wilfred's and Campbell's testimony, sufficient evidence exists that Burdick exhibited a deadly weapon, placing Wilfred in fear of imminent bodily injury or death while appropriating property without effective consent. The fact the stolen items were not found in Burdick's possession is not evidence sufficient to make the great weight of the evidence indicate that the result was clearly wrong.

Third, Burdick asserts the evidence clearly indicates the door had not been kicked in from the outside of the house. Burdick contends it is obvious from the photographs taken at the scene the door had been kicked from inside the house. Burdick bases this contention on the way the door had been broken and the fact that the majority of the glass fell on the outside of the house. Burdick fails to direct us to any indication in the record, other than the photographs themselves, which supports the conclusion that the door had been kicked in from the inside rather than the outside. The photographs themselves do not clearly indicate how the door was kicked open. Burdick appears to argue that, if the door had been kicked in from the inside, doubt would be created as to whether the State's version of the facts were true. Regardless of whether this fact would create doubt as to the State's version of the facts, it certainly does not make the evidence so weak as to be clearly wrong or manifestly unjust.

Last, Burdick argues the evidence did not sufficiently prove he was one of the intruders. At trial, Wilfred originally indicated doubt as to whether Burdick was one of the intruders. She testified he looked "quite a bit different" now than he had at the time of the robbery. Wilfred testified the intruder had "longer hair" and a darker complexion. Burdick argues he has never had long hair and does not have dark skin. When asked by the defense attorney whether she was ever shown a photographic line-up of any suspects with long hair, Wilfred clarified her answer, explaining she meant his hair was "longer than he has now." Eventually, the State showed Wilfred the photographic line-up in which she had previously identified Burdick as the intruder. After viewing the photographic line-up, Wilfred testified Burdick was the intruder. Wilfred testified that, when she identified the defendant in the photographic array, she had no doubt the picture she identified was a picture of the intruder. // Investigator Seals testified Wilfred identified Burdick's photograph as the person who was in the house during the robbery. Testimony of a single eyewitness has been held sufficient. Garza v. State, 82 S.W.3d 791, 793 (Tex. App. Corpus Christi 2002, no pet.) (store employee identified defendant, who was a frequent customer, as the perpetrator); Davis v. State, 831 S.W.2d 839, 842 (Tex. App. Dallas 1992, pet. ref'd) (affirming aggravated robbery conviction where only one eyewitness identified the defendant, who presented five alibi witnesses). While the weight of Wilfred's identification may be diminished by the hesitancy of the identification, we must defer to the jury's determination of weight and credibility. "When reviewing the evidence, our role is not to become a thirteenth juror. This Court may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder." Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

While the robbery was occurring, Wilfred recognized the intruder with the gun as someone she knew, although she could not remember his name. Wilfred testified that the intruder with the gun was wearing a white t-shirt, but that she recognized him as someone she knew based partially on the unique tattoos bearing Old English letters on his chest and back, as well as other tattoos on his arms. Wilfred also recognized him as a person with whom she had played video games with at Campbell's house, given a ride back to Campbell's house from a bar once, and who had received a puppy from a litter her dog had. Campbell supplied Burdick's name when she asked him the name of the guy to whom she gave the puppy. Burdick contends Wilfred could not have identified him by his tattoos since the robber had worn a white t-shirt. "[A] factual sufficiency review must be appropriately deferential so as to avoid the appellate court's substituting its own judgment for that of the fact finder." Jones, 944 S.W.2d at 648. Whether Wilfred would have been unable to identify Burdick due to the white t-shirt is a fact issue on which we must defer to the jury's determination unless clearly wrong. We cannot say that the great weight of the evidence indicates the verdict is clearly wrong or that the evidence is so weak as to be clearly wrong or manifestly unjust.

All of Burdick's arguments focus on credibility of the witnesses. "The court's evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony." Id. In order to reverse the trial court, the great weight of the evidence must indicate the verdict to be clearly wrong, or the evidence must be so weak as to be clearly wrong or manifestly unjust. Viewed in a neutral light, the great weight of the evidence does not indicate Burdick did not commit the crime in question. Due to the identification of Burdick as the intruder, we cannot say the evidence is so weak as to be clearly wrong or manifestly unjust.

For the reasons stated, we affirm the judgment.

Jack Carter

Justice

Date Submitted: November 4, 2003

Date Decided: November 5, 2003

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