Edward O'Neal Powell v. State

Opinion issued March 23, 2006

     












In The

Court of Appeals

For The

First District of Texas





NO. 01–05–00726–CR





EDWARD O’NEAL POWELL, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1032228





MEMORANDUM OPINION


          Edward O’Neal Powell, appellant, was charged by indictment with aggravated robbery. Tex. Pen. Code Ann. § 29.03 (Vernon 2003). Appellant pleaded not guilty to the charge and pleaded true to an enhancement. The jury found him guilty and, after having found the enhancement allegation true, assessed punishment at 20 years’ confinement in prison.

          In one point of error, appellant argues that the evidence is factually insufficient to support his conviction.

          We affirm.

Background

           Charles Patterson, complainant, is a distributor of Little Debbie products. On September 30, 2004 at 6:30 a.m., Patterson drove his vehicle to his next stop—a convenience store near the University of Houston. As Patterson neared the store, he saw a maroon car pulling out of a parking space. Patterson waited on the street for the car to leave. However, instead of leaving, the car backed up, giving Patterson space to enter. Patterson then drove into the parking lot. The car never left.

          Patterson thought the situation felt strange, so he took his gun, a Beretta .9 millimeter, and tucked it into the back of his pants. He entered the store and took the clerk’s order. He walked out to his vehicle to get the products. From the reflection on the window in his vehicle, he saw a passenger get out of the maroon car and approach him. The driver of the maroon car drove out of the parking lot and parked the car on the street. Patterson turned around and saw the passenger approach him, holding what Patterson described as either a .9 or a .45 millimeter gun.

          The passenger told Patterson to give him Patterson’s money. Patterson told the passenger that he did not have any money. After the passenger had Patterson turn out his pockets, the passenger demanded Patterson’s keys. Patterson refused. The passenger looked away briefly, and Patterson took this opportunity to pull out his own gun. This resulted in a standoff between the two. The driver of the car approached. Patterson pointed his gun at the driver and told him to back up. The driver walked back to the car. Slowly, the passenger began to back away toward the car as well. As the passenger approached the car, Patterson thought he heard a shot. Patterson fired three times, shooting out the rear window of the car. The passenger dropped to the ground as the car immediately drove away. The passenger got up, and ran way.

          Patterson went inside the store and told the clerk to call the police. Before the police arrived, the driver of the maroon car drove back into the parking lot. When the police arrived, he complained about Patterson’s shooting out his rear window. After the police viewed the surveillance videotape, which corroborated Patterson’s explanation of events, the police took the driver into custody.

          Inside the car, the police found two photographs of the driver, appellant, and two other men. The police also identified appellant’s palm print near the passenger door on the car. About a month later, Officer Robert Sherrouse received an anonymous telephone call. Based on the telephone call, appellant became a suspect in the case. Officer Sherrouse created a photographic array containing a photograph of appellant and five other similar-looking men. He presented the array to Patterson. Patterson identified appellant as the passenger who had attempted to rob him, saying he was 90% sure that appellant was the assailant.

Factual Sufficiency

          In his sole point of error, appellant argues that the evidence is factually insufficient to support his conviction.

A.     Standard of Review

          In a factual-sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside 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. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)). Our evaluation may not intrude upon the fact-finder’s role as the sole judge of the weight and credibility accorded any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The fact-finder alone determines what weight to place on contradictory testimonial evidence, as it depends on the fact-finder’s evaluation of credibility and demeanor. Id. at 408. In conducting a factual-sufficiency review, we must discuss the evidence that, according to appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

B.      Analysis

          Appellant argues that the evidence was factually insufficient to support the finding that he was the passenger of the car who robbed Patterson. The following evidence supported identifying appellant as the assailant: The two pictures in Ford’s car showed appellant in similar clothing to what Patterson described the assailant as wearing. Appellant’s palm print was located on the passenger side of Ford’s car. An anonymous telephone call led Officer Sherrouse to place appellant’s picture in a photographic array. Upon viewing the photographic array, Patterson identified appellant as the assailant, saying he was 90% sure that appellant was the assailant.

          To counter this evidence, appellant’s primary argument is that because Patterson had said he was 90% sure that appellant was the assailant, his identification was not unequivocal, and therefore it was factually insufficient to support a conviction. In support of his argument, appellant cites Johnson v. State, where the Court of Criminal Appeals affirmed the Thirteenth Court of Appeals’ reversal of a conviction because “[t]he in-court identification was not clear and unequivocal.” 23 S.W.3d 1, 6 (Tex. Crim. App. 2000) (quoting Johnson v. State, 978 S.W.2d 703, 707 (Tex. App.—Corpus Christi 1998, pet. granted)). In Johnson, an aggravated sexual assault case, the complainant testified that she was positive that Johnson had been the assailant, but she was not 100% positive. 23 S.W.3d at 5. The reasons that the complainant was not sure were because it was dark, she had been blindfolded, the assailant wore a ski mask most of the time, she was scared, and she never got a good look at the assailant. Id. The reason that the complainant felt she was positive was because there was “something in [Johnson’s] eyes.” Id.

          The facts of this case are substantially different. Here, Patterson had a clear view of appellant’s face for an extended period of time. The only qualification Patterson gave was to say he was “90% sure.” This was not such an equivocal statement as to render Patterson’s identification factually insufficient. Additionally, Patterson identified appellant at trial without any equivocation.

          Appellant also focuses on the fact that there was another witness present that gave a distinctly different description of the assailant than what Patterson gave. Clifford Hall testified for the defense. He was a witness at the scene, and gave a statement to the police. While it is true that Hall’s description of the assailant was different than Patterson’s, many other critical facts that Hall gave were different from those given by Patterson and the testifying police officers and even from what the surveillance videotape showed. Additionally, the evidence showed that Hall was then serving time for possession with intent to deliver a controlled substance, and he admitted to being convicted of a number of other felonies.

          The jury may believe all, some, or none of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Unless the available record clearly reveals that a different result is appropriate, we defer to the jury’s determination concerning the weight to place upon conflicting testimony, because resolution of facts often turns on an evaluation of the credibility and demeanor of the witnesses. Johnson, 23 S.W.3d at 8. Here, the jury chose to reject most, if not all, of Hall’s testimony. The jury was well within its bounds to do so.

          Finally, appellant argues that there were inconsistencies between Patterson’s description and appellant’s age and the assailant’s attire. Whatever inconsistencies existed were not so pronounced as to render the verdict factually insufficient. We hold that the evidence was factually sufficient to support appellant’s conviction.

          We overrule appellant’s sole point of error.


Conclusion

          We affirm the judgment of the trial court.

 

                                                                        Laura Carter Higley

                                                                        Justice


Panel consists of Justices Taft, Higley, and Bland.


Do not publish. See Tex. R. App. P. 47.2(b).