No. 14-05-00315-CR
Memorandum Opinion filed March 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 981,059. Affirmed.
Panel consists of Justices HUDSON, FOWLER, and SEYMORE.
CHARLES W. SEYMORE, Justice.
Appellant, Clarence Dewayne Jackson, appeals a conviction for aggravated robbery. In two issues, appellant contends that (1) the evidence is legally and factually insufficient to support his conviction, and (2) the trial court erred by admitting the complainant's identification of appellant. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex.R.App.P. 47.4.
I. BACKGROUND
On February 25, 2004, a man later identified as appellant entered a locally owned grocery store with the ostensive purpose of purchasing a box of crackers and some summer sausage. The owner of the store, the complainant, totaled appellant's purchases on the cash register. As soon as the cash drawer opened, appellant held a gun to the complainant's head and demanded money. The complainant gave the man about five hundred dollars of cash. As appellant exited the store, the complainant fired a shot at appellant with his .38 caliber revolver. Appellant fired back, and several gun shots were exchanged before appellant escaped in a white, four-door vehicle. A jury convicted appellant of aggravated robbery and assessed punishment at thirty-eight years' imprisonment. II. SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant contends that the evidence is legally and factually insufficient to support his conviction for aggravated robbery. A. Legal Sufficiency
In reviewing the evidence for legal sufficiency, we view all evidence in the light most favorable to the verdict in order 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); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). We must defer to the fact finder's judgment as to the weight and credibility of the evidence, and resolve any inconsistencies in favor of the verdict. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Cury v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). A person commits the offense of robbery if he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death while in the process of committing theft with an intent to obtain or maintain control of the property. TEX. PENAL CODE ANN. 29.02 (Vernon Supp. 2005). A robbery is aggravated if a person uses or exhibits a deadly weapon during the commission of a robbery. Tex. Penal Code Ann. § 29.03 (Vernon Supp. 2005). Here, the complainant identified appellant at trial as the man who held a gun to his head, took his money, and caused him to fear for his life. A customer at the store who witnessed the crime also positively identified appellant at trial. Further, appellant was admitted to the hospital within an hour of the robbery for a gunshot wound. Appellant's fingerprints were found on the box of crackers picked up by the robber. The police recovered a white, four-door car with its windows shot out within a mile of the store. The car was owned by appellant's girlfriend. There was a bullet hole in the door panel and .38 caliber casings were found in the exterior and interior of the vehicle. DNA analysis revealed that a bloodstain inside the car matched appellant's blood. Viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant committed the offense of aggravated robbery. Therefore, the evidence is legally fficient to support appellant's conviction. B. Factual Sufficiency
In reviewing the evidence for factual sufficiency, we must view all of the evidence in a neutral light, and must set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence may be factually insufficient if (1) the evidence supporting the verdict alone is too weak to justify a finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that it would prevent a reasonable jury from finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Appellant argues that neither the complainant nor the customer who witnessed the crime accurately identified appellant in a photo line-up. He also complains that the State failed to introduce evidence matching the .38 caliber casings found at the scene and in the car with the complainant's gun. However, in light of the identifications of appellant at trial, the DNA evidence, the fingerprint evidence, and the evidence that appellant was hospitalized with a gunshot wound within an hour of the offense, we conclude that the State's evidence was not too weak to justify a finding of guilt beyond a reasonable doubt. In support of his factual insufficiency argument, appellant also relies on his own testimony. Appellant testified that he was shot by the angry boyfriend of a woman with whom he spent the night before the robbery. He claimed that his fingerprints were found on the cracker box because he had previously been to the store. He also said that, although the car belonged to his girlfriend, his girlfriend called him that morning to tell him the car had been stolen. With respect to the bloodstain found in the car, appellant claimed that he cut his finger while fixing a flat tire. Appellant did not offer any evidence to corroborate his explanations. We must defer to the jury's determinations involving witness credibility and demeanor. Zuniga, 144 S.W.3d at 481. The jury was the sole judge of witness credibility and was free to accept or reject all or any part of appellant's testimony. See Ortiz v. State, 93 S.W.3d 79, 88 (Tex.Crim.App. 2002); Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App. 1998). Because a jury could have reasonably disbelieved appellant's unsubstantiated testimony, we conclude that the contrary evidence is not so strong that it would prevent a rational jury from finding guilt beyond a reasonable doubt. Accordingly, we find the evidence factually sufficient to support appellant's conviction. Appellant's first issue is overruled. II. IDENTIFICATION TESTIMONY
In his second issue, appellant contends that the trial court erred by allowing the complainant to identify appellant at trial. However, appellant has not preserved any alleged error for review. Appellant complains on appeal that he was denied due process under the federal and state constitutions because the complainant did not identify appellant from his independent recollection of the crime. However, appellant did not file a motion to suppress the complainant's identification, and he did not object to the complainant's identification at trial. Appellant therefore waived any error on appeal. See Tex.R.App.P. 33.1(a) (providing that a party must make a timely and specific objection, request, or motion at trial to preserve error for appellate review); Perry v. State, 703 S.W.2d 668, 670-71 (Tex.Crim.App. 1986) (noting that "Texas courts stringently apply the contemporaneous objection rule in the context of improper identification"); In re G.A.T., 16 S.W.3d 818, 827 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Appellant's second issue is overruled. The judgment of the trial court is affirmed.