COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-273-CR
WILLIE CHARLES BOYNTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Willie Charles Boynton of two counts of
aggravated robbery with a deadly weapon and assessed his punishment at
twenty years’ confinement for each count. In a single point, Boynton argues
that the evidence is factually insufficient to support his conviction. We will
affirm.
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… See Tex. R. App. P. 47.4.
At approximately 10:30 p.m. on September 17, 2006, a male entered a
convenience store in White Settlement, pointed a gun at two store clerks, and
demanded money. The perpetrator was black, Hispanic, or black and Hispanic;
he stood about six feet tall, had a small, athletic build, and was between the
ages of eighteen and twenty-five; he wore jean shorts, black gloves, a white
and black bandana over part of his face, and a black or gray hoodie with the
hood over his head; he carried a green backpack; and his gun was wrapped in
a bandana that matched the bandana partially covering his face. The store
clerks complied with the perpetrator’s demand and gave him the store’s money,
and he left the store. One of the clerks later identified Boynton both in a
photographic spread and at trial as the person responsible for committing the
aggravated robbery.
Boynton argues that the evidence is factually insufficient to support his
conviction because there was “conflicting and inconsistent” testimony
regarding his identity as the person responsible for committing the aggravated
robbery. When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2006). We then ask whether the evidence supporting the conviction, although
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legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704–
05 (Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse
under the second ground, we must determine, with some objective basis in the
record, that the great weight and preponderance of all the evidence, though
legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.
We may not substitute our judgment for the factfinder’s. Johnson v.
State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d
404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals that a
different result is appropriate, we must defer to the jury’s determination of the
weight to be given contradictory testimonial evidence because resolution of the
conflict “often turns on an evaluation of credibility and demeanor, and those
jurors were in attendance when the testimony was delivered.” Johnson, 23
S.W.3d at 8. Thus, unless we conclude that it is necessary to correct manifest
injustice, we must give due deference to the factfinder’s determinations,
“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9. Our deference in this regard safeguards the defendant’s
right to a trial by jury. Lancon, 253 S.W.3d at 704.
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In a criminal trial, the State must prove that the accused was the
perpetrator, and the accused stands innocent before the court until his identity
is established beyond a reasonable doubt. Rice v. State, 801 S.W.2d 16, 17
(Tex. App.—Fort Worth 1990, pet. ref’d). Identity can be established by direct
or circumstantial evidence or by inferences. Earls v. State, 707 S.W.2d 82, 85
(Tex. Crim. App. 1986); Roberson v. State, 16 S.W.3d 156, 167 (Tex.
App.—Austin 2000, pet. ref’d).
The evidence showed that Darlene Archer was one of the convenience
store clerks working on the night of the robbery. Archer testified that she
thought the perpetrator looked like a young black man who was a little taller
than her and probably not “old enough to buy beer.” She was able to observe
the portion of his face above the bandana: his nose area, his eyes, and a part
of his forehead. Archer met with a detective after the robbery and viewed a
photographic spread that contained Boynton’s photo. Boynton’s photo was
included in the spread because a detective with the Saginaw Police Department
had identified Boynton as a possible suspect in the case. Archer “immediately”
identified Boynton as the person responsible for committing the aggravated
robbery. Archer also identified Boynton at trial as the person responsible for
committing the aggravated robbery.
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Joshua Bayle testified that he worked at a Subway in September 2006.
On September 16 at around 10:00 p.m., approximately twenty-four hours
before the convenience store robbery, a man between the ages of eighteen and
twenty-five entered the Subway carrying a green backpack and wearing a gray
hoodie and a white and black bandana over his mouth. The store’s security
cameras captured images of the person. The Saginaw Police Department
requested a copy of the footage.
Trivell Lewis testified that his brother attended high school with Boynton,
that Boynton was a friend of his family, and that Boynton lived with his family
for a period of time in 2006. Lewis had worked at the same Subway where
Bayle worked. On September 14, 2006, Lewis took Boynton to the Subway
to fill out an employment application. Lewis was later called to the Subway to
view the images of the person who entered the store on September 16, and he
concluded that the person in the images resembled Boynton; Lewis recognized
the hoodie, he opined that the shorts worn by the person used to be his, and
he last saw Boynton wearing black, high-top shoes similar to those worn by the
person in the images. Lewis thereafter had a conversation with Boynton about
the situation at the Subway. Lewis testified that he became one hundred
percent sure at that point that the person in the images was Boynton because
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Boynton asked about the bandana used by the person, but Lewis had not said
anything to Boynton about the person wearing a bandana.
Margaret Garcia was the other convenience store clerk working the night
of the robbery. She described the perpetrator as a black or black and Hispanic
male who had a small, athletic build and was between the ages of eighteen to
twenty-five. She observed the bridge of his nose to the middle of his forehead
during the robbery, but she was unable to identify the perpetrator when she
viewed a photographic spread. At trial, she was shown an image taken of the
person at the Subway, and she opined that the person in the image was ninety-
nine percent identical to the person who committed the robbery at the
convenience store. The State questioned Garcia if she saw anyone in the
courtroom who had features similar to the person who committed the
aggravated robbery at the convenience store, and she identified Boynton
because she recognized the shape of his eyes and his build.
Defense counsel attempted to cast doubt on Boynton’s identity as the
person responsible for committing the robbery by stressing that the police
report identified the perpetrator as a light skinned black male or a Hispanic
male. Defense counsel also elicited testimony from a witness who observed
the perpetrator running from the convenience store and described the person
as “Hispanic looking.” Archer, however, testified that she never described the
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perpetrator as Hispanic, and Garcia confirmed that she had described the
perpetrator as black or black and Hispanic, not Hispanic. The witness who
described the perpetrator as “Hispanic looking” confirmed that he had assumed
the perpetrator was Hispanic because he had seen a lot of other people in his
neighborhood wearing attire similar to what the perpetrator wore and because
of a bias he harbored as a result of his vehicle being vandalized. The detective
who showed Archer and Garcia the photographic spread testified that in his
experience as a detective, witnesses can give varying descriptions of other
people.
Defense counsel also pointed out that Archer was hysterical and upset
when the robbery occurred and when she viewed the photographic spread, but
Archer testified that she was “a thousand-and-one percent sure” that Boynton
committed the aggravated robbery, and the detective opined that he thought
Archer was a good witness because she immediately recognized Boynton as the
person responsible for committing the robbery.
As the judge of the weight and credibility of the evidence, the jury could
have given more weight to the direct and circumstantial evidence demonstrating
that Boynton committed the robbery than it gave to any contradictory evidence;
the mere existence of contradictory evidence is not enough to support a finding
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of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.
Crim. App. 2001); Johnson, 23 S.W.3d at 8–9, 12.
Viewing all the evidence in a neutral light, favoring neither party, the
evidence supporting the conviction is not so weak that the factfinder’s
determination is clearly wrong and manifestly unjust nor does the conflicting
evidence so greatly outweigh the evidence supporting the conviction that the
factfinder’s determination is manifestly unjust. See Lancon, 253 S.W.3d at
704; Watson, 204 S.W.3d at 414–15, 417. We hold that the evidence is
factually sufficient to support Boynton’s conviction for both counts of
aggravated robbery with a deadly weapon. We overrule Boynton’s sole point
and affirm the trial court’s judgments.
PER CURIAM
PANEL: MEIER, DAUPHINOT, and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 1, 2009
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