Opinion issued July 1, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00339-CR
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Brandon Darrell Wilson, Appellant
V.
The State of Texas, Appellee
On Appeal from the 260th District Court
Orange County, Texas*
Trial Court Case No. D-080345-R (Count Two)
MEMORANDUM OPINION
A jury convicted appellant Brandon Darrell Wilson of robbery and sentenced him to 40 years’ confinement in prison and a $5,000 fine. See Tex. Penal Code Ann. § 29.02 (Vernon 2003). On appeal, Wilson challenges the legal and factual sufficiency of the evidence to support his conviction because his co-conspirator, who initially told police that Wilson was involved in the robbery, testified at trial that he lied to the police about Wilson’s involvement with the crime.
We affirm.
BACKGROUND
Just after midnight on May 22, 2008, Wilson went to a gas-station convenience store in Orange County. Rana Tamang was working alone as the night manager, talking on the phone to a friend. Wilson took an energy drink from the cooler, walked to the counter, asked for Marlboro cigarettes, pulled a wrapped object from his waistband, put it on the counter, and demanded money. Tamang, who believed the wrapped object to be a gun, told his friend he was being robbed, fumbled with the cash register, and then gave Wilson money and a package of Marlboro cigarettes. These events were recorded on video by a surveillance camera. Wilson fled and jumped into the bed of a dark-colored Ford pickup truck that was waiting outside for him. Wilson’s roommate, Kelly Mancina, gave the police a statement in which he said he was driving the truck, but he recanted at trial.
Officer L. Kemp was working as a patrol officer for the Orange County Sheriff’s Department, and she responded to the broadcast about the robbery. Tamang had called his store manager, who came to the convenience store and showed Kemp the surveillance video. The video recording showed that the robber had facial hair and wore a baseball cap. Kemp immediately recognized the robber, although she did not know his name. The store was unable to make a copy of the video recording at that time, so Kemp asked the manager to pause the video recording so she could take a still picture of the robber with her mobile phone. Then she sent the picture to other officers to solicit help in identifying the robber.
Officer E. Shannon, who was working as a patrol officer for the City of Pinehurst in Orange County, was with City of Orange Police Officer J. Warner when Warner received the robber’s photo from Kemp. Shannon recognized the robber as Wilson, because he had dealt with Wilson on other occasions. In addition, Shannon testified that the truck that Tamang described as the getaway vehicle matched the truck that Shannon knew Wilson drove. Shannon went to his office, got a picture of Wilson, and gave it to Warner.
Later that morning, hours after the robbery, Officer J. Davis, a patrolman for the City of Orange Police Department, was working as an investigator on the day of the robbery. He compiled a photographic lineup, including a recent photograph of Wilson, and showed it to Tamang. Davis testified that Tamang identified Wilson without hesitiation. Tamang also testified that he had identified Wilson from a photographic lineup, and Tamang identified Wilson at trial, saying he had no doubt that Wilson was the robber, despite the fact that Wilson appeared different at trial because his face was clean shaven.
City of Orange Police Detective R. Estrello testified that he had dealt with Wilson in the past and that he immediately recognized him upon viewing the surveillance video. He said, “No doubt in my mind that was him.” Detective Estrello and Sergeant Jefferson went to Wilson’s last known address, where his mother told them that Wilson was living with a man named Tony Evans. Estrello recalled that Wilson was with Evans the last time he dealt with him. Evans told Estrello that Wilson moved in with Kelly Mancina and his family. Estrello and Jefferson went to Mancina’s mobile home and found a truck that matched Tamang’s description of the getaway truck. They also saw Wilson walk up, with a freshly shaved face and cuts on his scalp from where he had recently shaved his head. Estrello said that the shoes Wilson wore matched those worn by the robber in the convenience store’s surveillance video. Estrello knocked on the door, and Wilson identified himself. Estrello attempted to arrest Wilson on outstanding warrants, but Wilson fled on foot, running through neighboring yards and hiding in tall grass. Approximately 14 hours after the robbery, Estrello arrested Wilson.
Estrello testified that he spoke with Mancina for over an hour during a recorded interview. During that interview, Mancina admitted that he was driving the getaway truck and that he knew that Wilson was going to rob the convenience store. Mancina told the police that they had been driving around and needed money for gas, and Wilson decided to rob the convenience store when his efforts at panhandling proved fruitless. Mancina told the police that Wilson used Mancina’s son’s toy gun, wrapped in a sock, to threaten Tamang. Mancina also said that Wilson shaved his head and face that morning, after the robbery. Finally, Mancina told the police where they could locate the sock-wrapped toy gun, and the police later found it where Mancina said it would be.
Before trial, Mancina signed a note in which he recanted his earlier statements to police. At trial, he again recanted his recorded police statement. Mancina admitted driving the truck but denied that Wilson committed the robbery. Instead, Mancina said, his accomplice was a “white guy,” whom Mancina did not remember and could not describe. Mancina claimed that he was under the influence of illegal drugs when he gave his police statement and that he implicated Wilson because Wilson owed him money. Mancina testified that Wilson always had his head shaved and was at home on the night of the robbery. However, Mancina also admitted lying about the case.
K. C. Breshears, a criminal investigator with the Orange County District Attorney’s office, testified that Mancina told him before trial that he was afraid to testify against Wilson because of Wilson’s connections to the Aryan Brotherhood gang. According to Breshears, Wilson wrote the note recanting Mancina’s statements to police, and Mancina signed it because he was afraid of Wilson. Mancina said he did not recall what he said to Breshears, but he denied that he feared Wilson or that Wilson wrote the letter recanting Mancina’s earlier statements.
After Mancina again stated that the handwriting in the original note was his, the prosecutor asked him to write it again from dictation. The prosecutor read the note to Mancina. The handwriting on the two documents did not match, and Mancina misspelled several words while writing the note in court.
Wilson’s sister testified that she saw Wilson the day before the robbery and Wilson had a clean-shaven head at that time. In addition, she was not aware of any connection Wilson had to the Aryan Brotherhood gang, and she testified that Wilson drank cola, not energy drinks, and he never smoked Marlboro cigarettes. Similarly, Wilson’s mother denied that he was connected to the Aryan Brotherhood gang, drank energy drinks, or smoked the brand of cigarettes taken from the convenience store. She testified that she saw Wilson approximately two weeks before the robbery and that he was clean shaven at that time. She also testified that Wilson commonly wore a bandana over his head.
The trial court instructed the jury on both aggravated robbery and robbery, and the jury convicted Wilson of robbery. After learning of Wilson’s prior convictions for burglary of a habitation, possession of cocaine, and tampering with a governmental record, the jury sentenced Wilson to 40 years in prison and a fine of $5,000.
Standard of Review
In two issues, Wilson challenges the legal and factual sufficiency of the evidence to support his conviction. In particular, Wilson contends that Mancina’s trial testimony, in which he stated he previously lied about Wilson’s involvement in the robbery, is too weak to support the verdict, especially in light of the testimony from his sister and mother that he had shaved his hair and face before the robbery.
Legal Sufficiency
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 was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). If we determine that the evidence is legally insufficient, we must render a judgment of acquittal. Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).
Factual Sufficiency
In a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). 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 acquitted. See 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 factfinder’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 trial court’s judgment. See id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the judgment. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
In reviewing the factual sufficiency of the evidence, appellate courts should afford almost complete deference to a factfinder’s decision when that decision is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). In a bench trial, the trial court judge is in the best position to judge the credibility of a witness because he is present to hear the testimony, as opposed to an appellate court that relies on the cold record. Id.; see Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978) (“The jury, or trial judge in a trial before the court, is the sole judge of the credibility of the witnesses and may accept or reject any part or all of the testimony given by State or defense witnesses.”). The factfinder may choose to believe some testimony and disbelieve other testimony. Lancon, 253 S.W.3d at 707.
ROBBERY
A person commits theft if he “unlawfully appropriates property with intent to deprive the owner of property.” Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2009). A person commits robbery if, “in the course of committing theft” and “with intent to obtain or maintain control of the property,” he “intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” See Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003).
Analysis
Wilson argues that this is a case of mistaken identity. Wilson contends that the evidence is legally insufficient because, at trial, Mancina testified that he lied about Wilson’s involvement because Wilson owed him money. In addition, Wilson points to trial testimony from his mother, sister, and Mancina that he was seen without facial hair before the robbery.
Tamang, the sole live eyewitness to the robbery, identified Wilson from a photographic lineup less than 24 hours after the robbery. Tamang identified Wilson at trial, saying he had no doubt that Wilson was the robber, despite the changes in his facial hair. “It is well established that a conviction may be based on the testimony of a single eyewitness.” Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)). The jury could have believed Tamang, and his testimony alone would be legally sufficient to support the verdict. However, this is not a case where the jury had to rely on the testimony of a single eyewitness, because the robbery was recorded by the convenience store’s surveillance camera and two law enforcement officers testified that they recognized Wilson from the video recording of the robbery. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Wilson committed robbery as charged. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Drichas, 175 S.W.3d at 798.
As to factual sufficiency, Wilson argues that the verdict was “overwhelmingly against the weight of the evidence so as to be unjust. The evidence just doesn’t match the verdict.” Wilson essentially contends that the trial testimony of his mother, his sister, and Mancina was more credible than that of the State’s other witnesses.
It is axiomatic that the trier of fact is the sole judge of the credibility of the witnesses and must resolve inconsistencies in the evidence. See Johnson, 571 S.W.2d at 173; see also Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet. ref’d) (“[W]hen a witness recants prior testimony, it is up to the fact finder to determine whether to believe the original statement or the recantation.”); Maldonado v. State, 887 S.W.2d 508, 509 (Tex. App.—San Antonio 1994, no writ) (“Just because the . . . witness recants incriminating testimony does not mean the evidence is insufficient.”). The jury was in the best position to determine who was more credible based on their testimony and demeanor in court, and, on appeal, we will defer to the jury’s assessment of credibility under these circumstances. See Lancon, 253 S.W.3d at 705.
As to its credibility determination, in addition to observing the testimony and demeanor of the witnesses, the jury was able to compare Mancina’s written recantation with the writing sample he provided during trial and to observe Mancina’s demeanor in the video recording of his earlier statement to police. As to Wilson’s identity argument, the jury was able to watch the robbery, which was recorded by the store’s surveillance camera, and compare Wilson’s appearance at trial with the video recording and the photograph that Kemp took from it.
Moreover, we note that the facts that Wilson relies upon were not facts that the State was required to prove in order to support his conviction for robbery. It is irrelevant whether Wilson drank energy drinks or smoked Marlboro cigarettes; these facts are not elements of the charged offense. See Tex. Penal Code Ann. §§ 29.02(a)(2), 31.03(a) (Vernon 2003 & Supp. 2009). Viewing all the evidence in a neutral light, we conclude that the evidence of Wilson’s guilt was not so weak that the verdict is clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11.
We hold that the evidence is both legally and factually sufficient, and we overrule Wilson’s two issues.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Jennings, Alcala, and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).
* Originally appealed to the Ninth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Ninth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.