Opinion issued November 29, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00435-CR
JOHNNY LEE HURD , Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause No. 1010614
MEMORANDUM OPINION
A jury found appellant, Johnny Lee Hurd, guilty of aggravated robbery, and, after having found true the enhancement allegation of a prior conviction for aggravated assault, the trial court assessed punishment at 15 years confinement and a fine of $10,000.00. See Tex. Pen. Code Ann. § 29.03 (Vernon 2006). In five issues, appellant asserts that: (1) the evidence is factually insufficient to sustain his conviction, (2) the trial court erred in allowing “backdoor” hearsay testimony and in overruling his objection to an improper jury instruction, and (3) there is a fatal variance between the name of the complainant in the indictment and in the proof at trial. We affirm.
Background
In the early morning hours of November 20, 2004, the complainant, Brenda Agreda, drove to her cousin’s apartment complex. Agreda testified that, after she parked her Lincoln Navigator, she turned to get her purse from the passenger seat and, when she turned back around, she saw appellant at her driver-side window. She testified that he pointed the gun at her and ordered her out of the vehicle. As she got out of the car, she saw another man, whom she later identified as James Lee Jones, at the passenger-side window. After taking Agreda’s keys, purse, and cell phone, appellant and Jones got into her vehicle and drove off. Houston Police Department patrol officer P.G. Villanueva spoke with Agreda at the scene.
Four days later, Houston Police Officer M.T. Ferguson was patrolling the area when he found the stolen Navigator in the Roadrunner Hotel. Officer Ferguson spoke with Warren Reading, who claimed to have information regarding the Navigator. After speaking with the patrons of the hotel, Officer Ferguson determined that appellant and Jones were the suspects. Detective Kim Miller reviewed Officer Villanueva’s offense report along with Officer Ferguson’s supplement. After speaking with both Reading and Agreda, Miller agreed that Jones and appellant were the suspects. Agreda identified appellant and Jones in a photo array.
Factual Sufficiency of the Evidence
In his first issue, appellant argues that the evidence was factually insufficient to support a finding that he committed the crime. Specifically, appellant argues that the only eyewitness who identified him, Agreda, gave inconsistent testimony, there is no fingerprint or “bloodhound” evidence to prove his possession or use of stolen property, and that the State’s use of extraneous offense testimony and evidence was unreliable. We disagree.Standard of Review
When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the proof of guilt is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we also cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, 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. In our factual-sufficiency review, we must also 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).
We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines the weight to be given contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408–09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. This standard of review applies to both direct and circumstantial evidence cases. King, 29 S.W.3d at 565.
Analysis
Appellant’s factual sufficiency argument is primarily based on his contention that the evidence provided by the State on the issue of identity is too weak under the beyond-a-reasonable-doubt standard to support a guilty verdict. Appellant first asserts that the only evidence identifying him as the assailant from one sole eyewitness, who is also the complainant. Appellant states that, because there are inconsistencies among the complainant’s statements and because there was no other physical evidence such as fingerprints linking him to the crime, testimony from one eyewitness is just not sufficient to sustain his conviction.
“Robbery” is defined as committing theft with the intent to control or maintain control of the property, and intentionally or knowingly threatening or placing another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02 (Vernon 2005). “Aggravated robbery” is specifically defined as a robbery committed with or exhibiting a deadly weapon. Tex. Pen. Code Ann. § 29.03 (Vernon 2005).
Appellant argues that too much of the evidence is in dispute to prove beyond a reasonable doubt that he committed the robbery. He states that Agreda was the only eyewitness and her testimony is unreliable because of the inconsistencies in her statement of the order of events. However, a conviction need not be reversed simply because there is only one eyewitness even if that person is also the complainant. See Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); Batts v. State, 673 S.W.2d 666, 668 (Tex. App.—San Antonio 1984, no pet.).
The inconsistencies appellant complains of include Agreda’s incorrect time of the incident; the fact that, initially, Agreda stated that the suspects rode off in the stolen vehicle together, then later admitted that one of the suspects might have walked away from the scene; and the fact that Agreda’s description of the suspects was “too broad.” Appellant also complains that Agreda’s description of appellant did not mention the tattoo on his face. The jury may believe or disbelieve any witness’s testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Although Agreda was the only eyewitness, she testified at trial that appellant was the assailant who threatened her life and ordered her out of the vehicle. She positively identified appellant in a photo array at which time she stated that she was 100% sure he was her assailant. Accordingly, we hold that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust and is, thus, factually sufficient to sustain the jury’s finding of guilt. We overrule point of error one.
Hearsay
In point of error two, appellant contends that, because both constituted backdoor hearsay, the trial court erred in admitting Officer Ferguson’s testimony concerning his interview with Warren Reading and Detective Miller’s testimony describing her investigation of appellant.
Standard of Review
We review a trial court’s decision to admit evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We will not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).
Analysis
“Hearsay” is a statement, other than the one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). “Statement” is defined as “(1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.” Tex. R. Evid. 801(a). Hearsay is not admissible evidence unless excepted by a statute, the rules of evidence, or another rule promulgated pursuant to statutory authority. Tex. R. Evid. 802.
Appellant relies on Schaffer v. State, 777 S.W.2d 111 (Tex. Crim. App. 1989), for the proposition that Ferguson’s testimony constituted backdoor hearsay—that is, the State was attempting to get before the jury the contents of Reading’s statement—that appellant possessed the stolen vehicle—via Ferguson’s testimony. Schaffer held that, “where there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly.” 777 S.W.2d at 114 (noting that the phrase “inescapable conclusion is not a talisman . . . [but that] the focus of the inquiry should remain whether or not the disputed testimony is being offered to prove the out-of-court statement.”). In Jones v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992), the Court of Criminal Appeals stated:
At the guilt/innocence phase of the trial the arresting officer testified that after listening to another detective question Yelena Comalander, he began to suspect appellant in this offense, and that he then had an arrest warrant issue for appellant. The State argues that this testimony is not hearsay because it was not introduced for the truth of the matter asserted, but to explain how the officer came to suspect appellant, seek an arrest warrant for him, and then arrest him.
Because the statement was not offered to prove the truth of the matter asserted, but to show why the officer got an arrest warrant for and arrested appellant it was not objectionable as hearsay.
843 S.W.2d at 499.
The Court of Criminal Appeals revisited the issue in Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) and reaffirmed Jones when it held that an appointment book and an application form with the defendant’s name in it were admitted to show how the defendant became a suspect, not for the truth of the matter asserted. Id. at 347. Police officers may testify to explain how the investigation began and how the defendant became a suspect. Id.
Unlike the “inescapable conclusion” in Schaffer, Officer Ferguson’s and Detective Miller’s testimony was offered to establish the course of Miller’s investigation and to show how appellant became the robbery suspect. See Jones, 843 S.W.2d at 499. Because the ruling falls within the zone of reasonable disagreement, we hold that the trial court did not err in allowing Officer Ferguson’s and Detective Miller’s testimony. See Burden, 55 S.W.3d at 615. Accordingly, we overrule appellant’s second and third points of error.
Submission of Jury Instruction
In appellant’s fourth point of error, he argues that the trial court erred in overruling his objection to the State’s inclusion of an instruction in the jury charge under Article 21.07 on the issue of idem sonans. At trial, appellant requested the following instruction:
You are instructed unless you find from the evidence beyond a reasonable doubt that the names Agrada appearing in the indictment and Agreda as testified to in this trial or [sic] usually pronounced in such a way that the names have been distinguishable, or that there’s difficulty in distinguishing when pronounced, you’ll find the defendant not guilty.
The trial court instructed the jury on the issue of idem sonans as follows:
You are instructed that unless you find from the evidence beyond a reasonable doubt that the names “Brenda Agrada” appearing in the indictment, and “Brenda Agreda” as testified to in this trial are usually pronounced in such a way that the names are indistinguishable or that the attentive ear finds difficulty in distinguishing them when pronounced, you will find the defendant not guilty.
Appellant alleges, that there is “a lack of evidence in the record raising the issue as to whether or not [Agreda] is known by two or more names.” Appellant further states that he was surprised by the fact that Agreda claims to have two names, and he was “prejudiced because he is now subjected to another potential trial with the complainant, because Agreda with an “E” sound, cannot sound the same as Agrada, with an “A” sound, as the witness testified.” We disagree.
Standard of Review
Texas requires unanimous verdicts in all felony cases. See Tex. Const. art. V, § 13; Stuhler v. State, 218 S.W.3d 706, 716 (Tex. Crim. App. 2007); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). Appellate review of jury-charge error involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we must determine whether error occurred. If so, we must then evaluate whether sufficient harm resulted from the error to require reversal. Id. at 731–32. Error in the charge, if timely objected to in the trial court, requires reversal if the error was “calculated to injure [the] rights of the defendant,” which means no more than that there must be some harm to the accused from the error. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); see Abdnor, 871 S.W.2d at 731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). “A defendant must have suffered ‘some’ actual, rather than theoretical harm from the error.” Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (citing Almanza, 686 S.W.2d at 171).
Analysis
Appellant argues that there was no evidence that Agreda was known by two or more names. A variance between the allegation and proof of a name will not impugn the validity of a judgment of conviction so long as the names sound alike or the attentive ear finds difficulty distinguishing them when pronounced. Farris v. State, 819 S.W.2d 490, 469 (Tex. Crim. App. 1990). If a question arises whether two spellings are idem sonans, it is an issue of fact for the jury. Id. Unless the two are patently incapable of sounding alike, a failure to request submission of the issue for jury consideration will defeat any claim of a variance on appeal. Id. Pronunciation, rather than spelling, is the key to resolving the issue. Id.
Also, the State offered evidence that Agreda introduced herself to Detective Miller and Officer Ferguson as Brenda Agrada, with the spelling A-G-R-A-D-A. Agreda even testified that she is often referred to as Brenda Agrada and Brenda Agreda, and she responds to both names. There is sufficient evidence in the record that Agreda used the names Agreda and Agrada; therefore, the trial court did not err by including the instruction, and we hold that the variant spelling is not fatal to appellant’s conviction. We overrule appellant’s forth issue.
Fatal Variance
In his fifth issue, appellant contends that the evidence is legally insufficient to support his conviction because the State failed to prove Agreda’s name as alleged in the indictment. He contends that, because Agreda’s last name was spelled “Agreda” in the reporter’s record, but was spelled “Agrada” in the indictment, there exists a fatal variance between the State’s proof of Agreda’s name and the name alleged in the indictment. We disagree.
Standard of Review
In reviewing a legal sufficiency challenge, we inquire, whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Thomas v. State, 36 S.W.3d 709, 710 (Tex. App.—Houston [1st. Dist.] 2001, pet. ref’d).
Analysis
Although the indictment charges appellant with the aggravated robbery of Brenda “Agrada,” the Code of Criminal Procedure allows the use of either name in the indictment when a person is known by two or more names. See Tex. Code Crim. Proc. Ann. art. 21.07 (Vernon 2005); Lopez v. State, 610 S.W.2d 764, (Tex. Crim. App. 1981). There was sufficient evidence presented at trial that showed Agreda was known by the two names “Agrada” and “Agreda.” In Garcia v. State, 760 S.W.2d 817 (Tex. App.—Corpus Christi), aff’d, 792 S.W.2d 88 (Tex. Crim. App. 1990), the court held that there was no variance where there was evidence the complainant used the name in indictment, although not his legal name. Id. at 819-820 (no variance in the indictment where the victim, J.L. Garza, was also known by J.L Garcia; either name could have been stated in the indictment).
Appellant also argues that there was a fatal variance between the State’s proof of the complainant’s name and the name alleged in the indictment. As a general rule, a variance between the indictment and evidence at trial is fatal to a conviction. Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995); Reyes v. State, 3 S.W.3d 623, 625 (Tex. App.—Houston [1st Dist.] 1999, no pet.). This rule, however, applies only to a material variance, or one that misleads the defendant to his prejudice. A variance between the allegation and proof of a name will not impugn the validity of a judgment conviction so long as the names sound alike or the attentive ear finds difficulty distinguishing them when pronounced. Farris, 819 S.W.2d at 496. If a question arises whether the two spellings are thus idem sonans, it is the issue of fact for the jury. Id.
Agreda testified that she was known by both names, and there was also testimony from Officer Ferguson and Detective Miller stating that the complainant used the name “Agreda.” Sufficient evidence supports the jury’s idem sonans finding, and the spelling variance thus is not fatal. We overrule appellant’s fifth issue.
Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).