Opinion issued June 14, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00660-CR
LEROY COLLINS JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1033716
A jury convicted appellant, Leroy Collins Jr., of aggravated robbery with the use or exhibit of a deadly weapon (a metal pipe), and the trial court assessed punishment at 30 years in prison. See Tex. Pen. Code Ann. §§ 29.02, 29.03(a)(2) (Vernon 2003). We determine whether the evidence was factually sufficient to prove that it was appellant who committed the charged offense. We affirm.
Background
Liaquat Ali worked the night shift at a 99 Cent store located on Scott Street in Houston. The store was open 24 hours a day; however, after midnight, the doors were locked, and transactions were conducted through a window and drawer. Appellant worked with Ali at the same store during the day and, at night, slept in the back of the store. Appellant had a key to the store and knew the alarm code. Harold "Moe" Gilmore had also been an employee at the store in the past.
At about 1:00 on the morning of May 28, 2005, Ali had just completed making a sale of cigarettes through the store's window. When Ali turned around, he saw appellant, who was holding a sharp object and telling Ali to get back and to put his hands up. Gilmore was also inside, though Ali did not know how Gilmore had entered because the doors were locked. While appellant was reaching inside the cash register, Gilmore hit Ali on the head with a metal pipe. Gilmore hit Ali a second time, and Ali fell to the floor, unconscious.
Gilmore called the store's owner, Mohammed Pirzada, about 8:00 the same morning to tell him that someone had shot Ali in the store. When the police arrived, they found fresh signs of forced entry to the store's back gate and door. Later that morning, they found appellant asleep in the back of the store.
Ali spent nearly three weeks in the hospital due to the severity of his head injuries. Pirzada visited Ali several times, once with appellant. On Pirzada's fourth or fifth visit, which was about three or four weeks after the robbery, Ali told Pirzada that Gilmore had robbed him. Pirzada informed the police, who arranged for a photographic spread to be shown to Ali at his apartment. When the police interviewed him, Ali told them that both Gilmore and appellant had robbed him. Ali thereafter identified appellant and Gilmore from photographic spreads.
Factual Sufficiency
In his sole point of error, appellant contends that the evidence was factually insufficient to support the jury's verdict because the testimony of the witnesses was inconsistent and "totally unreliable" and because there was no physical evidence presented to the jury that would have substantiated the guilty verdict.
A. The 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); Perales v. State, No. 01-05-01019-CR, 2006 WL 3628902, at *2 (Tex. App.--Houston [1st Dist.] Dec. 14, 2006, pet. filed). A review of the factual sufficiency of the evidence begins with the presumption that the evidence is legally sufficient to support the judgment. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). 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 verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Perales, 2006 WL 3628902, at *2. Appellant raises both types of challenges on appeal.
Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" and "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); Perales, 2006 WL 3628902, at *2. Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Watson, 204 S.W.3d at 417; Perales, 2006 WL 3628902, at *2. Before concluding 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. Watson, 204 S.W.3d at 417; Perales, 2006 WL 3628902, at *2.
In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Perales, 2006 WL 3628902, at *2. We may not reweigh the evidence or substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Perales, 2006 WL 3628902, at *3. The fact-finder alone determines what weight to place on 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; Perales, 2006 WL 3628902, at *3. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Cain, 958 S.W.2d at 407 n.5; Perales, 2006 WL 3628902, at *3.
B. The Law
A person commits aggravated robbery, as the indictment alleged and the jury was charged here, if he commits robbery and uses or exhibits a deadly weapon. See Tex. Pen. Code Ann. § 29.03(a)(2). Under the charge given here, a person is guilty of robbery if, while in the course of committing theft, and with intent to obtain or to maintain control of the property of another, he intentionally or knowingly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See id. § 29.02(a)(1), (2). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of the property. Id. § 31.03(a) (Vernon Supp. 2006). An accused's mental state may be inferred and proven circumstantially from acts or surrounding circumstances. See Ledesma v. State, 677 S.W.2d 529, 531 (Tex. Crim. App. 1984). The jury charge authorized appellant's conviction under the law of parties.C. Discussion
1. The Strength of the Evidence Supporting the Verdict
Appellant first contends that the evidence is factually insufficient to support the jury's verdict because the testimony of the witnesses, especially that of Ali, was inconsistent throughout the trial. This portion of appellant's factual-sufficiency challenge also relies on the fact that Ali waited three or four weeks to identify appellant.
The evidence showed that Ali was very seriously injured by the attack. (1) He was hospitalized for 17 to 18 days, and his head injuries were so severe that an investigating officer contacted the police department's homicide division, in case Ali died, and Pirzada did not believe that Ali would survive. When Ali was discharged from the hospital, soon before he told Pirzada who had attacked him, Ali was "still not in good shape." Likewise, during an initial police interview at his apartment, Ali continually complained of head pain. Given this evidence, the jury may have believed, for example, that Ali's injuries were so severe that he was incapable of telling anyone for several weeks who had attacked him. This view of the evidence could have been bolstered by Pirzada's testimony that, from the day that Ali identified Gilmore and appellant as his attackers, Ali never changed his story about who had committed the crime.
The fact-finder is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Reconciliation of any conflicts in the evidence is within the exclusive province of the jury. Id. The jury was entitled to believe Ali's testimony despite any inconsistencies that it may have contained and was entitled to give it the weight that it deemed appropriate. See Davis v. State, 831 S.W.2d 839, 842 (Tex. App.--Dallas 1992, pet. ref'd) (affirming robbery conviction when only one eyewitness identified defendant, despite testimony of five alibi witnesses who testified for defendant). For these reasons, we hold that the verdict was not based on evidence that was so weak as to render the verdict clearly wrong or manifestly unjust. We thus further hold that the evidence was not factually insufficient for the reason that appellant argues in this portion of his sole point of error.
2. The Great Weight and Preponderance of the Evidence
Appellant next contends that the evidence is factually insufficient to support the jury's verdict because (1) he had no reason to force open a door when he had a key and permission to be in the store; (2) it would have been illogical for him to have slept at the store after the robbery instead of fleeing; and (3) there were no usable or identifiable fingerprints at the scene.
The evidence indicated that the forced entry had occurred some time late on the night of May 27 or early in the morning of May 28 because (1) the gate and door's damage appeared "fresh"; (2) a witness saw four men enter the store by tearing at its back gate and kicking the adjacent door at 4:40 a.m. on May 28, heard a loud gunshot-like sound shortly thereafter, and saw the men leave the store quickly afterwards; (3) Ali did not hear anyone come in through the back gate or door before he was attacked at 1:00 on the morning of May 28, despite the door's being metal and having been forced open with a heavy object; and (4) Pirzada had visited the store earlier on the night of May 27 and had seen no problems. Additionally, there was testimony that the neighborhood was a "very rough," high-crime area and that the store had been broken into in the past.
Given this evidence and sequence of events, the jury could reasonably have believed, as the State hypothesized in its closing argument, that the four unidentified men who had broken into the store later that morning had fled after having seen Ali injured on the floor--meaning that the attack on Ali and the forced entry were unrelated. As for appellant's having been found asleep in the store after the robbery, the jury could have believed either what appellant argues or, instead, as the State argued in closing, that appellant did not flee so as not to cast suspicion on himself. Additionally, appellant's having been found asleep after the crime does not necessarily negate his having participated in the robbery earlier. And as for the lack of fingerprints, the jury also had before it Ali's eye-witness testimony that appellant and Gilmore had robbed him.
The jury may accept or reject any or all of the evidence presented by either party. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Given the possible ways of construing the evidence, and the totality of the evidence before the jury, we hold that the verdict was not against the great weight and preponderance of the evidence. Therefore, we further hold that the evidence was not factually insufficient for the reason that appellant argues in this portion of his sole point of error.
We overrule appellant's sole point of error.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Jennings, and Alcala.
Do not publish. See Tex. R. App. P. 47.2(b).
1. Indeed, Ali testified that, as of the time of trial, which was over a year after the
robbery, he was still unable to work because of his injuries.