Opinion
No. 05-01-00223-CR
Opinion issued June 25, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F00-44941-PI. AFFIRMED
Before Justices JAMES, FRANCIS, and LANG.
OPINION
Hector Hernandez appeals his conviction for robbery, enhanced by a prior felony conviction. After the jury found appellant guilty, the trial court found the enhancement allegation true and sentenced appellant to twenty-five years' imprisonment and a $1500 fine. Appellant brings seven points of error contending the evidence is legally and factually insufficient to support his conviction and that the trial court erred by admitting testimony identifying appellant as the robber. We affirm the trial court's judgment.
FACTUAL BACKGROUND
Paul Jackson worked at an Exxon station at the corner of Maple and Oak Lawn in Dallas. At about 8:00 a.m. on January 23, 2000, Jackson was standing near the register when a man came into the store with his jacket pulled over his head. The man put his knuckles in Jackson's back and said, "Open the register; open the register; right now, right now." Jackson could tell the man had not put a gun to his back, so instead of opening the register, Jackson picked up a bottle, "and I just started beating him across the head with that bottle." The man ran out of the store bleeding from the head. Jackson could not see the man's face, but he saw the back of his head and saw the man wore a white T-shirt, black jogging pants, and a black jacket. In court, Jackson described the robber as "[k]ind of stocky and big. . . . Kind of short, wasn't tall — not that short." Denise Roberts testified she was driving past the Exxon station when she saw a commotion inside the store. She saw a tall, slender man wearing dark pants made of windbreaker material, a matching jacket, and a white T-shirt walk out of the store. The man tried to hide his face with the jacket, but Roberts could see "he was covered in blood all on the right side of . . . [h]is head and his face." Roberts chased him in the truck, and the man jogged away, and then started walking. As he was walking, the man turned and looked at Roberts. Roberts testified she saw the man for about two minutes and was able to see his face for one minute. Roberts identified appellant as the man she saw leaving the Exxon station. Officer Richard Todd testified that before dawn on January 23, he was called to a domestic disturbance at 4014 Fairmount. When he got there, the assailant, who was the assault victim's boyfriend, had left, and the assault victim did not want to file a complaint. Later that morning he received a robbery call for the Exxon station, which was just a few blocks away from 4014 Fairmount. When he arrived at the Exxon station, another officer was handling the call, so Todd looked around and saw a trail of blood drops leading from the store. He knew the robber had left the store with a bleeding head, and Todd followed the trail of blood drops a couple of blocks under the Tollway and to near Harry Hines Blvd. where he lost the trail and returned to his squad car. About fifteen to thirty minutes later, Todd was called back to 4014 Fairmount for a family violence call. When he got there, he saw four people, two men and two women. Appellant was one of the men. Todd did not recognize appellant as fitting the description of the Exxon station robber because he was not wearing a shirt or jacket and he was wearing a baseball cap pulled low. While getting the information from the assault victim, her assailant showed up and walked to his apartment. The assault victim saw her assailant and said, "this is the guy that beat me up." Todd followed the assailant to his apartment, but the man said, "you can't come in here; this is my apartment," and he slammed the door in Todd's face. The assailant then ran out the back of his apartment and was eventually caught, arrested, and taken to jail. While the assailant was being apprehended, Todd noticed appellant had a bleeding cut on his head that was visible under the baseball cap and that appellant was about the same height as the description of the robber of the Exxon station. Todd telephoned his sergeant, David Welch, and told him he thought appellant was the robber. Welch came to the location, and they went to the door of the woman who had been assaulted and whose boyfriend had been arrested. The woman who had been assaulted answered the door, and they asked her if the other people were still there. She told them they were not and that she was alone. The officers asked if they could come in and look around, and she said "yes." The officers found appellant lying in a bed in the apartment, and they found a bloody T-shirt. The officers took appellant outside, and they had someone pick up Jackson and drive by to see if Jackson could identify appellant as the robber. Jackson testified that as he was driven past appellant, the officer asked him either "ain't this the guy" or "are that the guy." Appellant was still shirtless and wearing the baseball cap. Jackson could not identify appellant, so the officers released appellant and took Jackson back to the Exxon station. The officers returned to their patrol duties, and Welch saw appellant and the assault victim walking down Fairmount Street. Appellant was now wearing a dark jacket and was not wearing his cap. Todd stopped appellant, "checked him on the computer," "and some stuff came back on the computer" giving Todd "probable cause to detain him and talk to him for a period of time." At 11:40 a.m., Welch brought Jackson to the scene, who, this time, identified appellant as the robber. The officers then arrested appellant. Angelica Elizardo testified that in the early morning of January 23, 2000, appellant was with her, socializing at a friend's house with her friend Amanda and Amanda's boyfriend, Carlos. Carlos and Amanda and Amanda's sister and her boyfriend started fighting, and Elizardo and appellant left the friend's house. At about 7:00 a.m., as Elizardo walked past a 7-11, a man whistled at her, which appellant did not like. Appellant said something to the man, who then hit appellant, appellant hit him back, and appellant and the man had "a full-blown, knock-down, drag-out fight." After the fight, appellant was bleeding from the head. They went to Amanda's apartment. "Carlos came in hitting Amanda," and appellant fought with Carlos to stop him from "beating the hell out of Amanda." Appellant had blood on his shirt from the earlier fight. A police officer soon arrived, made them stand outside, and Carlos escaped through the back of the apartment. The officer told them they could leave. Elizardo drove away but soon returned and saw appellant sitting on the curb with a police officer by him. Elizardo drove by later and saw no one outside, so she went home.SUFFICIENCY OF THE EVIDENCE
In his first through fourth points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. When reviewing the legal sufficiency of the evidence, this Court must examine 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "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) (adopting the complete civil factual sufficiency standard of review). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim.App. 1997). The reviewing court is not free to reweigh the evidence and set aside a guilty verdict merely because the reviewing judges feel that a different result is more reasonable. Clewis, 922 S.W.2d at 135. Rather, the purpose of this analysis is to allow an appellate court, in the exercise of its fact jurisdiction, to prevent a manifestly unjust result. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. In his first point of error, appellant contends the evidence was legally insufficient to prove appellant intended to obtain or maintain control over "current money of the United States of America" as alleged in the indictment. Appellant argues his statement to Jackson, "Open the register," is not evidence of intent to steal United States currency because the record does not show appellant knew what was in the register. In his brief, appellant suggests he "could have been demanding the opening of the register for other reasons besides stealing money." The jury could reasonably infer from circumstances of the offense that appellant wanted Jackson to believe appellant had placed a gun against Jackson's back. If appellant's intent in desiring the opening of the cash register were anything other than the theft of its monetary contents, appellant would not have needed to try to convince Jackson he was holding a gun. We conclude a rational juror could find beyond a reasonable doubt that appellant intended to steal "current money of the United States of America." We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is legally insufficient to prove beyond a reasonable doubt appellant threatened Jackson with imminent bodily injury or placed Jackson in fear of imminent bodily injury. We disagree. The jurors could conclude appellant placed his knuckles in Jackson's back in imitation of a gun, and Jackson testified he was scared. This evidence is sufficient to prove beyond a reasonable doubt that appellant threatened Jackson with imminent bodily injury or placed Jackson in fear of imminent bodily injury. We overrule appellant's second point of error. In his third and fourth points of error, appellant contends the evidence is legally and factually insufficient to prove appellant was the robber. Appellant argues the evidence is insufficient because Jackson's identification of him was based on his head wound and clothing and not his physical features. Appellant argues Roberts' identification of him is unreliable because her description of the robber as tall and slender is inconsistent with Jackson's description of the robber as stocky and not tall. Appellant also argues Roberts' identification is unreliable because her description omitted reference to appellant's goatee and neck tattoos. The jury could determine Roberts' description was more reliable because she looked at the robber longer than Jackson did and she was able to view the robber's face. Roberts' omission of appellant's neck tattoos and goatee is consistent with her description that appellant tried to hide his face with his jacket. We conclude a rational juror could find beyond a reasonable doubt that appellant was the robber. We also conclude the evidence of appellant's guilt is not so weak as to undermine confidence in the jury's determination, nor is it so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We hold the evidence is both legally and factually sufficient to prove appellant was the robber. We overrule appellant's third and fourth points of error.IDENTIFICATION TESTIMONY
In his fifth point of error, appellant contends the trial court erred in denying his motion to suppress Welch's testimony of Jackson's out-of-court identification of appellant because the police procedures leading to the identification were impermissibly suggestive. After Welch testified, appellant moved to suppress Welch's testimony that Jackson identified appellant as the robber because the procedures were impermissibly suggestive. After some discussion, the trial court denied appellant's motion to suppress. A motion to suppress is nothing more than a specialized objection to evidence, and it must meet the requirements of an objection. Mayfield v. State, 800 S.W.2d 932, 935 (Tex.App.-San Antonio 1990, no pet.). One of the requirements of an objection is it must be timely, i.e., it must be at the earliest opportunity, which is as soon as the defense knows or should know an error has occurred. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); Henderson v. State, 82 S.W.3d 750, 752 (Tex.App.-Corpus Christi 2002, pet. ref'd); see Tex.R.App.P. 33.1. In this case, appellant did not object when Welch testified about Jackson's identification of appellant but waited to object until Welch's testimony had concluded and the State had finished its direct examination of the next witness. Appellant should have objected at the time Welch testified about Jackson's identification of appellant. Because he did not object until much later, his objection to the testimony was untimely, and no error is preserved for our review. We overrule appellant's fifth point of error. In his seventh point of error, appellant contends the trial court erred in overruling his rule 403 objection to Welch's testimony about Jackson's identification of appellant. Appellant did not make this objection until after the evidence was closed and just before the trial court read the charge to the jury. This objection was untimely and did not preserve error. We overrule appellant's seventh point of error. In his sixth point of error, appellant contends the trial court erred in overruling his hearsay objection to Welch's testimony about Jackson's identification of appellant. Rule of evidence 801(e)(1)(C) provides:(e) A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(C) one of identification of a person made after perceiving the person . .Tex.R.Evid. 801(e)(1)(C). At trial, appellant argued rule 801(e)(1)(C) was not applicable because "a prior identification is only admissible from that witness — from the declarant's testimony, not admissible through a third-party's testimony such as a police officer." The trial court rejected this argument, noting that case law interpreted rule 801(e)(1)(C) to allow a police officer to testify about another witness's out-of-court identification of the wrongdoer. See, e.g., Rodriguez v. State, 975 S.W.2d 667, 682 (Tex.App.-Texarkana 1998, pet. ref'd); Smith v. State, 830 S.W.2d 328, 329 (Tex.App.-Houston [14th Dist.] 1992, no pet.). On appeal, however, appellant argues for the first time that rule 801(e)(1)(C) does not apply because Jackson did not see the robber's face so his identification was not "made after perceiving the person." The argument on appeal must comport with the objection at trial or error is waived. Chambers v. State, 903 S.W.2d 21, 32 (Tex.Crim.App. 1995). Appellant did not make the argument at trial that rule 801(e)(1)(C) requires the declarant have viewed the identified person's face in the previous encounter. Accordingly, this argument is not preserved for our review. Even if the argument were preserved, appellant's argument would lack merit. Rule 801(e)(1)(C) contains no requirement that a witness have viewed the identified person's face. In this case, Jackson testified he saw the robber, including the wound he inflicted on the robber, but Jackson testified he did not see the robber's face. Because neither the rule nor its interpretation in case law required Jackson to have viewed the robber's face for Welch's testimony about Jackson's out-of-court identification statement to be admissible, appellant's argument lacks merit. We overrule appellant's sixth point of error. We affirm the trial court's judgment