No. 05-07-00635-CR
Opinion Filed May 14, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 366th District Court Collin County, Texas, Trial Court Cause No. 366-80725-06.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
Opinion By Justice O'NEILL.
A jury convicted appellant Gregory Bryan Marquez of aggravated robbery of an elderly person, and the court sentenced him to life in prison. Appellant challenges the sufficiency of the evidence to support his conviction and challenges the trial court's admission of certain evidence. We affirm the trial court's judgment.
Background
On September 7, 2005, seventy-three-year-old Wylie Rowan was sitting in his dining room when he heard a "tremendous bang." He immediately went to the front door and saw it had been kicked open. He went to his bedroom and saw a man standing there, and it was obvious he had been rummaging through his belongings. Rowan hit appellant in the face, and appellant hit him back. Based on the scrapes on his arms, he assumed appellant also hit him with a drawer. Appellant ran from the room and drove off in his car. Rowan grabbed his 357 Magnum Taurus and fired four shots at the car in an attempt to stop it. Rowan hit the back window and shattered it; however, appellant got away. Rowan called the police and three detectives and two county sheriffs came to his house. He described the intruder as a light-skinned Hispanic, medium height, and approximately 180 pounds. He wore glasses and a black leather Harley Davidson hat, which the officers recovered from the scene. They also retrieved Rowan's gun for evidence. He described appellant's vehicle as dark in color and maybe a Toyota. Rowan gave a statement to Scotty Morrison, an investigator with Collin County's sheriff office, who responded to the burglary in progress. Morrison said when he arrived Rowan was excited, shaking, and "his face was kind of red and swollen." Rowan reported he surprised an intruder, they got into a fight, and the intruder struck him in the face with his hand. Although Rowan's testimony at trial often changed about whether he remembered appellant hitting him in the face with his hand, Morrison testified Rowan specifically told him this information. Morrison later entered the details of the crime into the crime analyst list serve and Chief William Thackett, police chief for the city of Argyle, responded and sent the picture of a possible suspect to Morrison. Morrison prepared a photo lineup and showed it to Rowan. He identified two individuals as the possible intruder, one of which was appellant. Approximately two months later, Chief Thackett told Morrison about Shawn Henderson, an inmate in Tarrant County jail who might have information about the incident. Henderson later provided Morrison with information consistent with facts he already knew. Specifically, Henderson stated appellant came to his house in Hurst and said he "broke into a house and went up on the owner in the hallway or something." He said after he saw the owner, he hit him under the chin and took off running. As he drove away, the owner fired shots at his car and shattered his back windshield. Henderson, a certified auto mechanic, replaced the back window for appellant. During the repair, he noticed shattered glass inside the car from the window and also saw a bullet hole in the passenger side door. He described appellant's car as a red Toyota. Henderson also said appellant told him he lost his Harley Davidson hat, which was his "prized possession," and his glasses at the house. Henderson testified before the jury to these same facts. Based on this information, police obtained an arrest warrant for appellant and a search warrant for his car. When officers searched the car, they noticed glass fragments on the inside and a bullet hole in the car door. It was obvious appellant had recently replaced the back windshield. Officers also found maps, a compass, gloves, and a flashlight in the front seat, which Morrison testified was consistent with someone driving out in the country to burglarize homes. As part of the investigation, the Harley Davidson hat was scraped for DNA evidence. A forensic analyst first developed a DNA profile from the hat. Once appellant was in custody, he submitted to a buccal swab of his cheeks for DNA, which the forensic analyst used for comparison. Although the hat did not produce a full DNA profile, the partial profile had seven out of the thirteen typings used for comparison. The forensic analyst testified the partial profile contained a mixture of more than one individual, which is typical for something like a hat that could be handled by multiple individuals. However, after comparing appellant's DNA profile to the partial profile from the hat, she testified appellant "cannot be excluded as a primary contributor to this mixture." She specifically found his typings in six out of seven locations, which meant she found more of appellant's DNA than any other contributor. Approximately two weeks after appellant's arrest, Michael Hendrix, an investigator with Denton County, received a black travel-type suitcase from Dennis Barnett. Barnett's step-daughter Nicole was dating Sean Wilson at the time. Barnett came into possession of the suitcase when he moved Nicole and Sean from the Blue Diamond Motel in Fort Worth to his home. Sheriffs later came looking for Sean because they believed he was involved in a burglary or could provide information regarding it. Barnett then turned over the suitcase to police. When they searched the suitcase, they found a bullet, documents with appellant's name on them, two prescription bottles also with his name, and a spiral notebook containing some personal writings. Susan Allen, a forensic firearm examiner, tested Rowan's gun and the bullet retrieved from the suitcase. The tests concluded Rowan's gun fired the bullet. A jury found appellant guilty of aggravated robbery of an elderly person, and the trial court sentenced him to life imprisonment. This appeal followed. Sufficiency of the Evidence
In his third and fourth issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. He specifically challenges the jury's reliance on testimony from a convicted felon; the DNA evidence found inside the hat was not reliable; complainant's identification in a photo lineup was not reliable; and the State failed to prove appellant hit complainant in the face with his hand, as alleged in the indictment. The standard of review for legal and factual sufficiency of the evidence is well established. When deciding whether evidence is legally sufficient to support a conviction, we must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App. 2005). When reviewing the factual sufficiency of the evidence, we look at all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 416-17 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417; Johnson v. State, 23 S.W.3d 1, 12 (Tex.Crim.App. 2000). In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Under either standard, the fact finder is the sole judge of witness credibility and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (legal sufficiency review); Johnson, 23 S.W.3d at 7 (factual sufficiency review). The State charged appellant with intentionally, knowingly, and recklessly causing bodily injury to Wylie Rowan, a person sixty-five years of age or older, by striking him in the face with his hands, while in the course of committing theft of property and with intent to obtain and maintain control of said property. See Tex. Penal Code Ann. § 29.03(a)(3)(A) (Vernon 2003). After reviewing the record, we conclude the evidence is both legally and factually sufficient to support his conviction. We first address appellant's complaint regarding Shawn Henderson's testimony. As the sole judge of witness credibility, the jury was free to believe his testimony, despite being a convicted felon. Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 7. Although appellant argues his testimony was unreliable and it is likely he framed appellant for the robbery based on his knowledge of the crime and access to appellant's belongings, the State questioned him about his past criminal history and motive for testifying. He admitted he was a convicted felon, but wanted to testify and help the police because it was the truth. He testified the State offered him immunity for anything he testified to, but he had no current charges in Collin County for which he was receiving a special deal. He also admitted that around the time of the incident he regularly used rock cocaine. Thus, the jury was well aware of his background and considered it in reaching its decision. See, e.g., Short v. State, 995 S.W.2d 948, 952 (Tex.App.-Fort Worth 1999, pet. ref'd) (concluding evidence sufficient to support conviction despite witness's felony conviction and inconsistent testimony). Second, his arguments regarding the reliability of the DNA results from the hat also falls within the province of the jury. There is no requirement that each individual piece of evidence be reliable beyond a reasonable doubt, but only that the State prove each element of the offense beyond a reasonable doubt. Bethune v. State, 821 S.W.2d 222, 226 (Tex.App.-Houston [14th Dist.] 1991), aff'd, 828 S.W.2d 14 (Tex. 1992). In discharging that duty, the jury determined the reliability of the evidence and the weight it should be afforded. Of course, a defendant is entitled to attack the reliability of the State's evidence through cross-examination and final arguments, and appellant did so in the present case. Appellant challenged the fact the State had only a partial DNA profile from the hat, and it could not prove with one hundred percent certainty the DNA was in fact his. In fact, the analyst testified the hat contained a minimum of two people's DNA. However, she also stated she could not exclude appellant as the primary contributor. Although appellant asserted Henderson had access to his hat, Henderson testified the hat was appellant's "prized possession," and he never saw him without it. With such evidence before it, the jury was free to weigh the contradictory evidence and determine it corroborated appellant's guilt. Appellant also claims his conviction is insufficient because the State used a photo lineup in which Rowan could not positively identify him, but could only narrow it down to two possible individuals. Rowan testified he identified two individuals in the lineup and also said he could not identify appellant in court because he had bad eyesight and a detached retina. Again, the jury was free to consider Rowan's inability to identify appellant and weigh the information accordingly. This evidence alone, however, is not by itself enough to determine appellant's conviction is legally or factually insufficient. See, e.g., Marines v. State, No. 14-06-00738-CR, 2008 WL 553895, at *5 (Tex.App.-Houston [14th Dist.] Feb. 28, 2008, pet. filed) (holding evidence factually sufficient even though an eyewitness was unable to identify appellant in lineup when other evidence established his guilt). Finally, appellant challenges the State's failure to prove a necessary element of the offense, specifically, that appellant hit Rowan in the face with his hands. He relies on the fact Rowan did not include this information in a written statement to police, and he had no documented bruises or marks on his face. He also cites to a statement Rowan made during cross examination in which he stated he did not have any recollection of appellant striking his face with a hand. Although Rowan made the statement, he also testified on direct examination that appellant hit him in the face with his hand or fist. Officer Morrison also testified Rowan told him appellant struck him in the face, and he observed Rowan's face was "kind of red and swollen." Shawn Henderson testified appellant told him he hit Rowan under the chin. Thus, despite the lack of any documented physical injuries or Rowan's vacillating testimony regarding his recollection of events, the jury was free to consider the other evidence and determine appellant hit Rowan in the face with his hand. Considering all of the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction. Likewise, after considering the evidence in a neutral light, the evidence is not so obviously weak as to undermine confidence in the jury's determination or is the proof of guilt greatly outweighed by contrary proof. Thus, appellant's third and fourth points are overruled. Admission of Photo Lineup
In his second point, appellant challenges the admission of a photo lineup because it was more prejudicial than probative. He claims because Rowan could not remember which pictures he previously identified in the lineup, he was harmed by the jury being misled or confused by the issue. We review a trial court's ruling regarding the admission of evidence under an abuse of discretion standard. Patterson v. State, 138 S.W.3d 643, 650 (Tex.App.-Dallas 2004, no pet.). Assuming without deciding the trial court erred in admitting the lineup, we must determine if the error caused appellant harm. Texas Rule of Appellate Procedure 44.2(b) provides a nonconstitutional error "that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App. 2002). In assessing the likelihood the error adversely affected the jury's decision, we must consider everything in the record and the character of the alleged error and how it might be considered in connection with other evidence in the case. Id. After reviewing the record, we conclude any harm from the admission of the photo lineup did not influence the jury's guilty verdict. As explained above, strong physical evidence linked appellant to the crime, and the jury heard testimony from Shawn Henderson that appellant admitted to the crime. Moreover, if anything, this evidence favored appellant because it showed Rowan was not able to positively identify him, which could have created doubt in the jury's mind about appellant's identity as the intruder. Therefore, we cannot say he was harmed by the evidence. Thus, we conclude the trial court did not err in admitting the lineup. Appellant's second point is overruled. Admission of Suitcase
In his first issue, appellant alleges the trial court erred in admitting the suitcase into evidence. He does not challenge the chain of custody once the police had possession of the suitcase, but rather challenges how the suitcase got into the hands of the police in the first place because no one could testify the suitcase belonged to appellant. He also claims he was harmed by the admission of the suitcase because it contained a bullet fragment from Rowan's gun. We again review the admission of such evidence under an abuse of discretion standard. Patterson, 138 S.W.3d at 650. As a predicate to admissibility, rule of evidence 901 requires a party who offers an item into evidence to establish to the trial judge's satisfaction the item is what the party represents it to be. Tex. R. Evid. 901(a). When the evidence being introduced does not have any unique characteristics, a chain of custody may be required to prove that the item presented at trial is the same one involved in the events at issue. Avila v. State, 18 S.W.3d 736, 739 (Tex.App.-San Antonio 2000, no pet.). However, Rule 901 only requires a showing that satisfies the trial judge that the item in question is what the State claims. Id. Further, the trial court does not abuse its discretion in admitting evidence when it reasonably believes a reasonable juror could find the evidence has been authenticated or identified. Druery v. State, 225 S.W.3d 491, 502 (Tex.Crim.App. 2007); Tex. R. Evid. 901(b) (noting evidence may be authenticated by appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances). Absent evidence of tampering or commingling, theoretical breaches in the chain of custody do not affect the admissibility of evidence. Kingsbury v. State, 14 S.W.3d 405, 407 (Tex.App.-Waco 2000, no pet.); Garner v. State, 939 S.W.2d 802, 805 (Tex.App.-Fort Worth 1997, pet. ref'd) (noting complaints regarding gaps in the chain of custody go the weight of the evidence, not its admissibility). Here, the State produced evidence of prescription bottles with appellant's name on them, legal documents containing his name, and a spiral notebook containing personal writings found inside the suitcase. Thus, the suitcase contained sufficient distinctive contents to support a finding the suitcase belonged to appellant. See, e.g., Druery, 225 S.W.3d at 503 (concluding evidence properly admitted when letter and envelope contained sufficient internal characteristics to support a finding defendant authored the letter). Absent evidence of tampering or other fraud, which has not been presented here, alleged problems in chain of custody do not affect admissibility but rather affect the weight the fact-finder should give the evidence. Id. at 503-04. The jury heard testimony from Michael Hendrix that he did not know who put the items in the suitcase, but he did know it was originally in the motel room where Sean Wilson and appellant temporarily lived. He said he received it from Dennis Barnett, who testified he did not know who packed it and was unaware of any connection between it and appellant. Thus, the jury had before it evidence to consider the possibility someone else besides appellant put the items in the suitcase and weigh the possibility accordingly. Therefore, we cannot conclude the trial court abused its discretion in admitting the suitcase. Even if we determined it was improperly admitted, appellant has failed to establish harm. See Tex. R. App. P. 44.2(b). Although he asserts he was harmed because police recovered from the suitcase a bullet fired from Rowan's gun, we cannot conclude after considering the record as a whole that this evidence influenced the jury's finding of guilt. Again, as noted above, the State introduced other physical evidence linking appellant to the crime, and Shawn Henderson testified appellant admitted to the crime on the day it occurred. Accordingly, appellant's first point is overruled. Conclusion
Having overruled all of appellant's points, we affirm the trial court's judgment.