Opinion
No. 14-03-01129-CR
Opinion filed July 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 943,378. Affirmed.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
MEMORANDUM OPINION
Appellant Sedon Lemon Evans appeals from his felony conviction for the offense of aggravated robbery. After finding appellant guilty of the above charged offense, a jury assessed punishment at 35 years' confinement. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See TEX. R. APP. P. 47.4. We affirm. In his sole issue presented for review, appellant argues that the evidence is factually insufficient to support his conviction because (1) no eyewitness could identify him from a police lineup, and (2) a reasonable alternative hypothesis exists which exculpates him. We address these contentions below in that order. In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. See Zuniga v. State, No. 539-02, ___ S.W.3d ___, ___ 2004 WL 840786, *6 (Tex.Crim.App. April 21, 2004). First, appellant contends that the evidence is factually insufficient to support his conviction because no eyewitness was able to identify appellant from a police lineup. He points to evidence that Ruby Guidry (the victim of the robbery), Sandra Hulin (Guidry's daughter who was also an eyewitness to the robbery and was struck by the perpetrator during his flight from the scene), and Milton Koonce (who viewed the robbery through a rear-view mirror while seated in his car) were unable to positively identify appellant as the perpetrator. The identity of a perpetrator of a crime, however, can be proved by either direct or circumstantial evidence; eyewitness identification is unnecessary. Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986). The State's evidence presented at trial supports the conclusion that appellant was the perpetrator of the robbery. Willaim Ener testified that on February 2, 2003, he gave to appellant, whose hair at that time appeared as braided "corn rows," the keys to his 1990 white Mitsubishi Galant to hold in exchange for a certain amount of cocaine. Ener never gave appellant permission to drive the vehicle since Ener expected to sell the car to a prospective buyer the next morning. However, when Ener awoke the next morning, he realized that his car was missing. He believed that appellant had driven off with it since there was no broken glass near the area where Ener had parked the vehicle. At the parking lot outside the Garden Ridge Pottery store around noon on February 3, Guidry and Hulin were loading their recent purchases into their vehicle when they heard the sound of a car's engine revving. The car, which Guidry and Hulin described as white and mid-sized, then turned the corner and stopped behind Guidry and Hulin. A muscular black man with "kinky" or braided hair jumped out of the car, approached them, and, while brandishing a weapon, demanded their purses. The perpetrator took Guidry's purse and fled the scene by jumping back into the white car and speeding off. Hulin recalled the license plate number of the white car and reported it to police when they arrived. Jared Davis, an investigator with the Houston Police Department, later matched this license plate number and vehicle description given by Hulin to a car registered to Tahir Shaikh. It was later discovered that Shaikh had sold the vehicle to Ener on January 30, 2003. When appellant returned the car to Ener around 11:00 p.m. on the day of the robbery, appellant's hair was not braided in corn rows, but combed in an "afro" style. The next morning, Ener, while cleaning out the car for another prospective buyer, discovered, among other things, a cigarette box and what turned out to be a bank deposit slip with the names of both Guidry and Hulin on it. Investigator Davis later matched the fingerprints found on the cigarette box and the deposit slip to those belonging to appellant. While none of the eyewitnesses to the robbery was able to positively identify appellant as the perpetrator, Hulin identified appellant during a police lineup as having the same height as the perpetrator. At trial, Hulin testified that appellant looked "familiar" to her in terms of his height, his build, and the shape of his face. Based upon this evidence, we cannot say that the State's proof of appellant's guilt is so weak as to render the verdict clearly wrong and manifestly unjust. Neither can we conclude that the State could not have met the standard of proof beyond a reasonable doubt based on the failure of the State's eyewitnesses to positively identify appellant as the perpetrator. Accordingly, appellant's first contention is without merit. Second, appellant contends that the evidence is factually insufficient to support his conviction because an alternative reasonable hypothesis exists which exculpates him. He claims that the only evidence supporting his conviction is the testimony of Ener and Todd Chevalieo, both of whom had a motive to fabricate a version of events implicating appellant because they conspired to frame him for the robbery. The existence of an alternative reasonable hypothesis may be relevant to, though not necessarily determinative of, a factual sufficiency review. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). Based upon our review of the record, however, we find appellant's alternative hypothesis to be unreasonable. There is no evidentiary basis to conclude that Ener and Chevalieo reached any sort of an agreement to frame appellant for the robbery. Moreover, even if there were any evidence of such a conspiracy, appellant wholly fails to explain the presence of his fingerprints on the bank deposit slip containing the names of Guidry and Hulin, which is perhaps the most powerful piece of evidence linking appellant to the robbery. Because appellant's alternative hypothesis provides neither a reasonable explanation of the admitted evidence nor an account of the critical evidence supporting the jury's verdict, we find that appellant's second contention is without merit. See Chambers v. State, 711 S.W.2d 240, 245 (Tex.Crim.App. 1986) (stating that what is not in evidence is irrelevant for determining evidentiary sufficiency); Villani v. State, 116 S.W.3d 297, 304-05 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (finding factual sufficiency based on the appellant's failure to account for critical portions of evidence supporting jury finding). Accordingly, appellant's sole issue presented for review is overruled. The judgment of the trial court is affirmed.