Emmett Matthews v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-01-298-CR

EMMETT MATTHEWS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # FR-01-16047

O P I N I O N

Emmett Matthews appeals from a conviction and ten year sentence for aggravated robbery. Matthews alleges in his sole point that the evidence is factually insufficient to support his conviction. We overrule the point and affirm the judgment.

In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We must view all the evidence without the prism of the in the light most favorable to the prosecution construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).

We must also remain cognizant of the factfinder s role and unique position one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

Matthews s brief itself is insufficient. In Purvis, this court laid out the proper procedure for presenting an insufficiency point on appeal. Purvis v. State, 4 S.W.3d 118, 119-20 (Tex. App. Waco 1999, no pet.).

1) a listing of the elements of the offense;

2) an identification of the element(s) on which the evidence is alleged to be insufficient;

3) a statement attacking either the legal or factual sufficiency of the evidence;

4) a discussion or statement of the applicable standard of review;

5) a discussion of the evidence which is contained in the record (with citations to the record);

6) a discussion of the law which is applicable to the case and the admissibility of the evidence (steps 5 and 6 can be presented in reverse); and

7) a discussion of the application of the law to the specific facts of the case.

Id. Several of these steps can be grouped, but each should be contained in the brief. The issue should be a summary of items 2 and 3. Id. at 120. Matthews s brief fails to (1) list the elements of the offense, (2) designate which element or elements are not supported by the evidence, and (3) discuss the application of law to the facts.

Even though we have determined that the brief is insufficient, we are considering the brief by construing the text to determine what the argument is, and then analyzing the argument. The elements of aggravated robbery are: (1) a person; (2) in the course of committing theft; (3) with intent to obtain or maintain control of the property; (4) knowingly and intentionally; (5) threatens or places another in fear of imminent bodily injury or death; and (6) uses or exhibits a deadly weapon. Robinson v. State, 596 S.W.2d 130, 132 (Tex. Crim. App. 1980); Tex. Pen. Code Ann. 29.03(a)(2) (Vernon 1994).

Rather than attacking any particular element of aggravated robbery, Matthews appears to argue that evidence is factually insufficient to support a conviction because most of the State s witnesses were not present during the robbery of Anthony Dixon and because the only two witnesses who were present Dixon and his roommate were not credible.

Dixon and his roommate testified that Matthews held Dixon at gun point and took several items including a computer. Matthews argues that Dixon is not a credible witness because he had a charge pending for the offense of possession of a controlled substance in a school zone, and was having a party during the time Matthews allegedly robbed him. Matthews appears to allege that the roommate is not credible by virtue of his relationship with Dixon, and therefore, has reason to lie.

Police officer testimony revealed that the stolen items were found in Matthews s vehicle. The jury also had Matthews s version of the facts available for use in their determination in the form of a statement he gave the police. According to Matthews, he gave Dixon money for crack. Dixon pointed a gun at him first, and he wrestled the gun away from Dixon. Matthews said that he had purchased the computer the week before and was merely picking it up. During closing argument, Matthews s attorney reiterated to the jury that Dixon and his roommate were not credible.

After observing testimony from Dixon and his roommate, the arresting and interrogating officers, and fact witnesses that were not present during the robbery, reading the statement of Matthews, and listening to the closing arguments of the parties, the jury returned a verdict of guilty.

During a review of factual sufficiency, the appellate court may make credibility determinations only if the information that can be clearly discerned from a cold appellate record reveals that the wrong result was reached. Johnson, 23 S.W.3d at 8-9. Otherwise, an appellate court must defer to the jury evaluation of witness credibility. Id. Here, the jury had the opportunity to watch the witnesses and determine if they were biased or otherwise not credible by their mannerisms, tone, and inflection. The information on the record is not so clearly contrary to the jury finding that it requires an overturning of the verdict. Matthews s point is overruled.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed December 31, 2002

Do not publish

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