In The
Court of Appeals
For The
First District of Texas
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NO. 01-01-00842-CR
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LESTER MYLES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from The 263rd District Court
Harris County, Texas
Trial Court Cause No. 858,484
O P I N I O N Appellant was charged by indictment with aggravated robbery. Appellant pled not guilty to the charge, and a jury found appellant guilty as charged with an affirmative finding of a deadly weapon. The indictment included two enhancement paragraphs, and appellant pled true to both enhancements. The jury assessed punishment at 47 years in prison.
BACKGROUND
On October 9, 2000, Nolan Sharp and his nephew, Ronald Gulley, were returning from the house of his friend Dinkie. As Sharp and Gulley were leaving Dinkie's house, they were approached by a man they knew as Tallhead. Tallhead asked Sharp for $50, to which Sharp responded, "I ain't got it right now." Sharp saw appellant waiting in a gray Lincoln Continental when Tallhead approached him for the money. After Sharp told Tallhead he did not have the money, Tallhead walked back to the gray Continental and Sharp and Gulley left. Sharp and Gulley noticed that they were being followed by the gray Continental. When Sharp arrived at his house, he went inside to get his cordless phone so that he could call his girlfriend. He came back down to his truck, where Gulley was still sitting in the passenger's seat, and Sharp called his girlfriend. He then heard a shot fired close to him. He looked up and there was a man wearing a mask standing outside of his truck. Sharp recognized the man as appellant by his voice and facial features that were visible even with the mask. Appellant told him, "Step out the truck and give it up." Sharp interpreted that to mean give up your money. When Sharp got out of the truck, appellant, told him to get on the ground. Sharp did not get down on the ground because he was scared appellant would shoot him in the back of the head. Appellant then shot Sharp in his right hand. Then, Sharp tackled appellant. The two struggled for about three to four minutes, and Sharp took off running. Sharp jumped over a fence, and appellant began shooting again. Appellant pursued Sharp, and to scare off appellant, Sharp said, "Whew, there come the police." Appellant got scared and ran away.
The police arrived at the scene of the shooting and called an ambulance. Sharp told the police he did not know who had shot him. Sharp did know who the shooter was, but at the time had decided he was going to take "the law into his own hands." Sharp was at the hospital for two or three days, and while he was there, he decided to tell the police who had shot him. After being released from the hospital, Sharp made a written statement to the police. In his statement, Sharp told the police that appellant was the shooter, and the police also interviewed Gulley. Gulley corroborated Sharp's statement, and the police then put together a photospread. The photospread included a photo of appellant, Tallhead, and four other individuals. Sharp identified appellant from the photospread. The police obtained a warrant, went to appellant's residence, and arrested appellant.
DISCUSSION
In his first and second points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction for aggravated robbery. Specifically, appellant argues that the evidence was legally and factually insufficient to support his conviction because (1) there is no evidence that appellant intended to commit theft or deprive Sharp of any property and (2) the witnesses were simply not credible.
In reviewing the evidence on legal sufficiency grounds, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In reviewing the evidence on factual sufficiency grounds, all of the evidence as a whole must be reviewed and not only in the light most favorable to the prosecution. Clewis v.State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). After reviewing the evidence, we will not deem the evidence to be factually insufficient unless (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). However, in a factual sufficiency review, the appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Under both legal and factual sufficiency, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses' testimony. Penegraph v. State, 623 S.W.2d 341, 343 (Tex Crim. App. 1981).
Evidence Favorable to the Verdict
At trial, Nolan Sharp testified that appellant threatened him at gunpoint, "Step out of the truck and give it up." Sharp testified that he understood this to mean appellant wanted his money or his truck. In addition, Sharp testified that five minutes prior to the threat, appellant's friend, Tallhead, had asked Sharp if he could borrow $50. Sharp also stated that he saw appellant with Tallhead when Tallhead asked him for the $50.
Sharp testified that appellant called him after he returned from the hospital. Sharp said that appellant identified himself and asked, "What is this here that I heard about I robbed you?" Sharp said he told appellant that he knew it was him who had tried to rob him. Appellant asked if Sharp had filed charges against him, and he asked Sharp to drop the charges. Finally, Sharp testified that on the phone, appellant admitted to committing the robbery and apologized.
Gulley testified at trial that he was with Sharp on the night of the robbery. Gulley testified that Tallhead asked Sharp for money and Tallhead and appellant followed them home. Gulley testified that he recognized appellant and Tallhead and appellant shot at Sharp. Gulley testified that he could identify appellant because of the "beanie" and "thermo" he was wearing.
Officer Motard testified that Sharp came to the homicide division to change his previous statement and he told the officers it was appellant who shot and tried to rob him. He testified that Sharp identified appellant from a photospread that included a photograph of Tallhead, and Gulley corroborated Sharp's statement.
Evidence unfavorable to the Verdict
After the shooting, Sharp originally told the police that he did not know who had shot him. Gulley also did not identify appellant as the shooter when the police came to Sharp's home. Sharp and Gulley both confirmed that Sharp had taken drugs 2 or 3 days prior to the robbery.
Officer Gillham testified that, on the night of the robbery, Sharp told him he did not know who had shot him. Officer Gillham also asked Sharp if he had recognized the shooter's voice, and Sharp answered, "No." Officer Gillham also testified that he felt Sharp was "holding back" and not telling him the truth about whether he knew who the shooter was.
Leonard Banks testified at trial that he witnessed the shooting from his hamburger stand. He stated that he could not positively tell who the shooter was because the shooter was wearing a mask. He further explained that he remembered the shooter being thin, and he thought appellant was "solid." Banks stated that appellant was "probably not" the shooter. He also explained that he never saw the shooter's face, but only his body.
Analysis
Appellant argues that there is no evidence that appellant intended to commit theft or deprive Sharp of any property. The jury was presented with testimony from Sharp, Gulley, and the police officers. Sharp and Gulley both testified that Tallhead had approached Sharp and asked to borrow $50 immediately before the robbery. They each testified that appellant was with Tallhead. Sharp testified that when appellant stated, "Step out the truck and give it up," he understood that to mean appellant wanted the money or his truck.
Appellant also argues that the evidence is legally and factually insufficient because the witnesses are "simply not credible." He argues that Sharp is "an admitted liar, perjurer, career criminal and thief." However, under both legal and factual sufficiency, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses' testimony. Penegraph , 623 S.W.2d at 343. The jury was presented with Sharp's background and was given the opportunity to weigh his and all the other witnesses's testimony.
After examining the evidence in the light most favorable to the verdict, we find that the evidence was legally sufficient to support appellant's conviction for aggravated robbery. Moreover, we find that (1) the evidence was not so weak as to be clearly wrong and manifestly unjust and (2) the adverse finding was not against the great weight or preponderance of the available evidence. Accordingly, we overrule appellant's first and second points of error.
We affirm.
Sam Nuchia
Justice
Panel consists of Chief Justices Schneider and Justices Hedges and Nuchia.
Do not publish. Tex. R. App. P. 47.