Opinion issued January 22, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00030-CR
MICHAEL DEAMESE KELLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 185th District Court
Harris County, Texas
Trial Court Cause No. 1066590
MEMORANDUM OPINION
A jury convicted appellant, Michael Deamese Keller, of aggravated robbery with a deadly weapon and sentenced him to imprisonment for 40 years and a fine of $10,000. On appeal, appellant contends that the evidence was legally and factually insufficient. We affirm.
Background
On April 18, 2006, around 6:30 in the morning, complainant, Christopher Walker, awoke to the sound of a knock on his door. Expecting a repairman to replace his air conditioner, he opened the door without first looking through the peephole. When he opened the door, Walker saw an African-American man wearing a white tee shirt and basketball shorts, whom Walker identified at trial as appellant. Walker said appellant was taller than him and estimated that appellant was between 5'10" and 6' tall. He realized that this man was not the repairman, but, suspecting the man was lost or “addled in some way,” he spoke to him, as was his habit of greeting “street people” in his Montrose neighborhood. Walker testified that although the sun was not completely up, he had good light outside—and a halogen light inside near the door—and saw appellant clearly. Walker testified that appellant said a man named “Mike” owed him money and continued speaking for less than five minutes, not making much sense to Walker.
Appellant asked to use Walker’s restroom and forced himself into the small, one-bedroom apartment and into Walker’s bedroom. Walker began telling appellant, whom he had never before met, to leave. Appellant began yanking the cords from Walker’s laptop computer, which contained Walker’s research toward the doctoral degree he was pursuing in microbiology. Walker put his hands on appellant’s shoulders and again told him to leave and threatened to call the police. Walker testified that appellant then “turned around and put a gun in my face and said, ‘You’re not going to call the police.’” Appellant told Walker to sit down and threatened to shoot him. Walker testified that appellant’s demeanor had become increasingly threatening and that he was frightened.
As appellant continued to disconnect Walker’s computer, Walker ran out of his apartment, knocked on his neighbor’s door, and then hid behind a wall. When Walker saw appellant leave his ground-floor apartment with his laptop computer, Walker gave chase on foot, still dressed only in his underwear. Walker testified that appellant turned back two or three times during the foot chase to threaten Walker by pointing the gun at him. After Walker rounded a corner, he spotted a man leaning against a silver Pontiac Grand Am. When Walker asked the man to call the police, the man laughed, and Walker then assumed that he was an accomplice. Walker paused to memorize the license plate number, looked up, and saw appellant shoot him. He felt something hit his ankle, and he later concluded that it was a bullet fragment. He ran back to his apartment to call the police. He testified that he was very fearful at that moment, saying, “You can’t even describe it. I just—I wasn’t even thinking. I turned around and ran as fast as I could.”
Meanwhile, Walker’s neighbor, Thomas Briggs, had arisen early that same day to wash his laundry. He testified that he was on the first floor of the apartment complex, near appellant’s apartment at 6:15 that morning. He said that it was “pretty dark” initially, but he noticed an African-American man approach Walker’s door. After about five minutes, he saw Walker “bolt out of the door” in his underwear. Briggs returned to his second-floor apartment and looked down the street from his balcony. He said that there was “a lot of light at that time, plenty of light.” Although he saw nothing else, he heard a gunshot, and then he called the police.
Sgt. Defee, a Houston Police Department supervisor and robbery investigator, contacted Walker the next day. Sgt. Defee testified that his conversation with Walker was “identical” to the description given in the initial police report. Sgt. Defee ran the license plate number that Walker gave him and determined that it was registered to Desian Hubbard. He used a government-issued photograph of Hubbard to construct a photographic lineup, but Walker did not recognize anyone.
About a week after the robbery, Sgt. Defee contacted Hubbard by phone, and Hubbard confirmed that he owned a silver Pontiac Grand Am. Sgt. Defee identified himself as a robbery investigator, but he did not tell Hubbard the date of the robbery. Instead, he asked Hubbard if anyone else had driven his car in the previous two weeks. Hubbard told Sgt. Defee that he had loaned his car to appellant on April 17, 2006, and that appellant had returned it to him around 10:00 a.m. on April 18, 2006.
At trial, Hubbard testified that appellant was a lifelong friend. He said that he had loaned his car, which he thought was a silver Pontiac Grand Prix, to appellant around 10:00 p.m. on April 17, 2006, and that he had gotten it back the next morning around 10:00 a.m. He testified that he recalled speaking to Sgt. Defee on the telephone and that Sgt. Defee told him they were investigating a robbery that involved his car. However, during and after cross-examination, Hubbard said that he thought he had loaned the car to appellant on April 15, 2006, a Saturday. When confronted with the inconsistencies, Hubbard agreed that he would not have wanted to lie to a police officer, but he added, “I wouldn’t want to get myself in trouble, neither, by the same token, yeah.”
After speaking with Hubbard, Sgt. Defee compiled a photographic lineup including appellant, from which Walker identified appellant as the man who stole his computer and shot at him. Walker testified that when he recognized appellant, “It was instantaneous and almost took my breath away, in a sense.” Although Walker had previously described the robber as having a gold tooth, he later testified that he believed it was actually silver, though he said the tooth had no bearing on his identification of appellant. Walker said that he was 100% certain that appellant, whom he identified at trial, was the man who robbed and shot at him. Sgt. Defee also testified that appellant was the same person whom Walker identified in the photographic lineup.
After Walker’s identification, Sgt. Defee spoke to appellant, who was in custody for assault at the time. Appellant denied any knowledge of, or participation in, this offense. He suggested that Sgt. Defee investigate two men: Maurice Hall and a man who went by the nickname “Fifth.” Sgt. Defee later created photographic lineups around both of these men, but Walker did not recognize either of them.
At trial, Danielle White, the mother of appellant’s son, testified on appellant’s behalf. White initially stated that she and appellant stayed together in a motel the night of April 17, 2006, leaving around 8:00 a.m. on April 18, 2006. Although she became confused about the dates and said she could not recall when she was at the motel, she insisted that they were together every morning for a year.
She testified that she filed a police report on April 19, 2006, in which she stated that appellant beat her as he chased her for seven blocks at a time when she was three months pregnant. White also testified that appellant threatened to kill her. Appellant was arrested and charged with assault. Nevertheless, White testified that she and appellant were still together and that she had his name tattooed on the back of her neck. Although White testified that she had never been convicted of a felony or a misdemeanor crime of moral turpitude, the State offered a rebuttal witness to prove that White had been convicted of the state jail felonies of unauthorized use of a vehicle and evading arrest.
The jury convicted appellant and sentenced him to 40 years in prison and a $10,000 fine. In two issues, appellant challenges the legal and factual sufficiency of his conviction. Appellant argues that: (1) there were two prior mistrials in this case; (2) he had an alibi; (3) the victim’s identification was unreliable; and (4) there were other suspects.Standard of Review
When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this is the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). In conducting our review, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843.
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 verdict 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 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 conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Aggravated Robbery
A person commits the offense of aggravated robbery if, in the course of committing theft and with intent to obtain or to maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. Tex. Penal Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003). A deadly weapon is defined as:
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
Tex. Penal Code Ann. § 1.07(a)(17) (Vernon Supp. 2008).Discussion
Legal Sufficiency
We first review the legal sufficiency of the evidence. Walker, who observed his robber at close range and in sufficient light, positively identified appellant in both a photographic lineup and in court as the person who threatened him with a gun, took his laptop computer without permission, and shot at him. In Johnson v. State, we held that a victim’s positive identification of the defendant in a photographic lineup and in court was legally sufficient to support an aggravated robbery conviction when the victim had sufficient time and light to observe her attacker. Johnson v. State, 176 S.W.3d 74, 77 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). We overrule appellant’s first issue and hold that the evidence is legally sufficient to support appellant’s conviction for aggravated robbery.
Factual Sufficiency
We evaluate the evidence neutrally from both sides in a factual-sufficiency review. See Cain, 958 S.W.2d at 408. Appellant points out that there was a discrepancy in Walker’s description of the robber’s height and the color of his metal tooth. Appellant argues that inconsistencies as to appellant’s appearance render the evidence insufficient to support the conviction. The inconsistencies were all before the jury, who were the judges of the facts, the credibility of the witnesses, and the weight to be given to their testimony. See Watson, 204 S.W.3d at 417; see also Escovedo v. State, 902 S.W.2d 109, 115 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (discrepancy regarding testimony about placement of tattoo did not render evidence insufficient in light of positive in-court identification).
Appellant also argues that there were other suspects, Maurice Hall and “Fifth.” However, Walker did not recognize either of these men in photographic lineups, and the jury was entitled to believe the testimony on this issue. See Watson, 204 S.W.3d at 417.
Although appellant presented an alibi defense, what weight to give contradictory testimonial evidence is within the sole province of the jury, as it turns on an evaluation of credibility and demeanor. Johnson, 176 S.W.3d at 78 (citing Cain, 958 S.W.2d at 408–09). Danielle White, who provided appellant’s alibi, is the mother of appellant’s son, had previously been victimized by appellant, and was impeached by her lie about her criminal history. The jury was free to disregard her testimony. See Escovedo, 902 S.W.2d at 115 (“The jury may believe or disbelieve all or any part of a witness’s testimony.”)
Accordingly, based on the record before us we conclude that the evidence is neither so weak that the verdict is clearly wrong and manifestly unjust nor is the verdict against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. We overrule appellant’s second issue.
Prior Mistrials
Finally, appellant argues that the fact of two prior mistrials itself should militate in favor of reversal for lack of sufficient evidence. An appellate court must review all the evidence which was before the jury when assessing legal and factual sufficiency. See Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988) (holding that reviewing court must consider even wrongly admitted evidence). Here, neither the records from the two, earlier trials nor the fact of the prior mistrials were before the jury. Therefore, we have properly refrained from considering them.
Conclusion
We affirm the judgment of the trial court.
James P. Sharp, Jr.
Justice
Panel consists of Justices Taft, Bland, and Sharp.
Do not publish. Tex. R. App. P. 47.2(b).