TAWAN RESHEED HILL v. THE STATE OF TEXAS--Appeal from 230th District Court of Harris County

NUMBER 13-03-621-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

TAWAN RESHEED HILL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 230th District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Garza

Appellant, Tawan Resheed Hill, challenges his conviction for aggravated robbery by one issue: whether the trial court erred by denying his motion for an instructed verdict. Since a complaint about the denial of a motion for an instructed verdict is in actuality an attack upon the sufficiency of the evidence to sustain the conviction, we will address appellant s issue as a challenge to the legal and factual sufficiency of the evidence. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). Because the evidence was both legally and factually sufficient to sustain appellant s conviction, as discussed below, we overrule appellant s sole issue on appeal and affirm the judgment of the trial court. When reviewing the legal sufficiency of the evidence, we view 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). We are not fact finders; our role is that of a due process safeguard, ensuring only the rationality of the trier of fact s finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. 29.02(a) (Vernon 2003). A person commits aggravated robbery if he commits robbery and (1) causes serious bodily injury to another; (2) uses or exhibits a deadly weapon; or (3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the person is either 65 years of age or older or a disabled person. Tex. Penal Code Ann. 29.03(a) (Vernon 2003).

At trial, the State produced substantial evidence of appellant s guilt. Two of the three victims of the robbery testified that appellant forced his way into their apartment while brandishing a handgun. Appellant searched the apartment, demanded money, and made two of the victims take off their clothes and lie down on the floor. The other victim, who was five months pregnant at the time, was forced to stand in the corner of the dining room. Later, appellant pointed his handgun at her abdomen and demanded to know where the money was. When she failed to produce any money, appellant fired his weapon into the floor. After approximately fifteen minutes, appellant fled the scene, taking with him $200 in cash and a set of custom gold teeth, valued at approximately $900. The victims then called the police. About ten minutes later, police officers detained two men who were exiting the victims apartment complex. The victims identified one of the detained men as the individual who robbed them. After searching the suspects and their vehicle, police officers discovered a set of custom gold teeth, as well as $517 in cash.

At trial, two of the victims identified appellant as one of the men detained by the police and as the man who robbed them. One of the victims identified the set of custom gold teeth recovered by the police as the teeth taken from him during the robbery. The two victims also identified a hooded sweatshirt found in the backseat of appellant s vehicle as the sweatshirt worn by appellant during the robbery. A spent shell casing recovered from the floor of the victims apartment was also introduced into evidence. Although the handgun used in the robbery was not recovered, the spent shell casing corroborated the victims allegation that a firearm was discharged during the robbery.

We conclude that this evidence is legally sufficient to prove that appellant used and exhibited a deadly weapon during the commission of a robbery and that it is therefore legally sufficient to sustain appellant s conviction for aggravated robbery. See id. Appellant s legal-sufficiency challenge is overruled.

In a factual-sufficiency review, the evidence is viewed in a neutral light, favoring neither party. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, we determine whether 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. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A clearly wrong and unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Santellan v. State, 939 S.W.2d 155, 164 65 (Tex. Crim. App. 1997). We are authorized to disagree with the fact finder s verdict even if probative evidence exists that supports the verdict. Id. at 164; see also Johnson, 23 S.W.3d at 7.

Appellant contends that the evidence is factually insufficient to sustain his conviction because it demonstrates that the perpetrator of the offense was not him but a man named Gist who was with him when he was detained by the police. Appellant points out that the gold teeth and cash were actually found on Gist s person and that, at the time of their detainment, appellant was not wearing the sweatshirt described by the victims (it was found in the backseat of the car). Appellant further contends that the testimony of one of the victims was not credible because the victim gave inconsistent answers when asked whether he knew appellant prior to the robbery.

Given the evidence detailed in our legal-sufficiency analysis, we cannot conclude that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination or that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11. The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994) (per curiam). To the extent that one of the victims gave inconsistent answers, we note that the reconciliation of conflicts in the evidence is within the exclusive province of the jury. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). Appellant s challenge to the factual sufficiency of the evidence is overruled.

The judgment of the trial court is affirmed.

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex.R.App.P. 47.2(b)

Memorandum Opinion delivered and

filed this the 26th day of May, 2005.