COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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DEDRICK EUGENE RIVERS, Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-00-00544-CR Appeal from the 161st District Court of Ector County, Texas (TC# B-27,290) |
O P I N I O N
Dedrick Rivers appeals his conviction for aggravated robbery. Finding no reversible error, we affirm.
Facts
Dedrick Eugene Rivers was charged by indictment with aggravated robbery. He was found guilty after a jury trial and sentenced to serve twenty years in the penitentiary.
At trial, the State called Daniel Regalado, a police officer at Odessa College. Regalado testified that the evening of November 15, 1998, he was working his second job as a security officer at Music City Mall. He finished working and returned to his apartment around 12:30 a.m. on November 16. The lighting in the parking lot was fair, and Regalado noticed a vehicle, a gray Buick Regal, enter the lot and park in the first available space before exiting his car. While walking from car to apartment, he noticed five black males approaching him. He assumed they were visiting someone who lived there, and said, Awhat=s going on@ by way of greeting. He continued walking, and then heard someone coming up behind him. He then saw a black man with a revolver pointed at him. This man was only a few feet from him, and Regalado could see the gun clearly. He identified it as a chrome-plated .38 revolver. Regalado testified, AHe told me to give him my wallet or he was going to kill me.@ Regalado, who was dressed as a security officer rather than police officer at the time, was not armed. Regalado gave the man his wallet. He was in fear for his life. The thief then ran back toward the car Regalado had noticed earlier.
The remaining four men watched Regalado a few seconds before they took off. When they left, he went into his apartment and immediately called the police. The police responded, he described what had happened. Regalado described the thief as wearing dark baggie jeans, and a white shirt with thin dark stripes. He was a large person with Areal chubby cheeks.@ Thirty to forty minutes later, the police took him to the south side of Odessa. There, they had detained a car which answered the description he had given them. He recognized the car as the one he had seen earlier. A police officer asked him if either of two men in the car was the perpetrator of the robbery. The police had the two men exit the car, and Regalado was about 10 to 15 feet away from them. He identified one of the men as the one who had robbed him of his wallet at gunpoint. Regalado identified defendant in court as the man who had robbed him, and as the same person he had identified at the show-up.
James Wesley Carta, a patrol officer with the Odessa Police Department, testified that he was on patrol in the early morning hours of November 16, 1998. He received a broadcast about the robbery, and pulled over a vehicle which matched the description given. A passenger got out, asked what the problem was, and then fled on foot. Carta ran after him, and while he was gone, the car drove off, jumping a curb in the process. (This was recorded on the patrol car=s video camera.) Carta testified he was not completely certain, but he believed that defendant Rivers was the car=s driver.
The State called Joe Sanford, another Odessa police officer on duty that night. He heard the broadcast regarding Carta, and set out to look for the suspected robber. He saw a car at an intersection which matched the description, and which rolled through a stop sign. He stopped the car, ordered its two occupants out, and arrested both. Sanford identified defendant Rivers as the driver of the car. Regalado came to the scene shortly afterward. Sanford found some of Regalado=s identification cards and business cards on the front seat of the Buick.
During Sanford=s testimony, there was some discussion about Rivers=s passenger being a juvenile. On cross-examination, defense counsel established that juveniles are not barred from testifying. On redirect, the prosecutor established that the defense had as much right to call a juvenile witness as the State.
The defense called a single witness, Rivers=s aunt Sandra Shaw. She testified that Rivers does not own or wear dark clothes, preferring mostly red or white.
Failure to instruct on lesser-included offense of robbery
In his first issue on appeal, Rivers claims that he was entitled to an instruction on the lesser-included offense of robbery, and the trial court therefore erred in failing to include that instruction in the court=s charge. He suggests that because no weapon used in committing the robbery was ever found, that this constitutes some evidence that the robbery occurred without use of a deadly weapon. We disagree.
In determining whether Rivers was entitled to a charge on the lesser-included offense, we apply a traditional two-prong test. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994); Rodriguez v. State, No. 08-97-00268-CR, 2001 WL 1136310, at *17 (Tex. App.--El Paso September 27, 2001, pet. ref=d). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Bignall, 887 S.W.2d at 23; Rodriguez, 2001 WL 1136310, at *17. Second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rodriguez, 2001 WL 1136310, at *17. Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992).
Here, Rivers cites no evidence raising a question as to whether he committed only simple robbery. The only evidence as to the circumstances of the robbery come from the testimony of Regalado, who was unequivocal that he was robbed at gunpoint. That the gun was never found does nothing to raise an issue on any lesser-included offense. There is no evidence that would allow a rational jury to find that Rivers was guilty only of robbery. Issue One is overruled.
Denial of motion for directed verdict
Similarly, in his second issue on appeal, Rivers contends that the evidence was factually insufficient to prove the elements of aggravated robbery because the firearm was never found. Although Rivers=s formulation of this issue speaks in terms of denying his motion for directed verdict, his argument requests a factual sufficiency review and asks us to apply the standard for factual sufficiency set out in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). We therefore construe this issue as raising factual sufficiency, and we will review it under that standard.
In reviewing factual sufficiency of the evidence, we consider all the evidence but not in the light most favorable to the verdict. Rodriguez, 2001 WL 1136310, at *5. We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. We must balance all the evidence, both that which tends to prove the existence of a vital fact and that which tends to disprove its existence, in determining whether any rational trier of fact could find the essential elements of the charge beyond a reasonable doubt. Id.
As discussed in regard to the prior issue on appeal, here there is no evidence tending to disprove use of a deadly weapon. Rivers points us to two facts in arguing the evidence was factually insufficient: that the weapon was never found, and that the evidence concerning use of a firearm came from the robbery victim. We do not find this evidence (if it can be so characterized), nor any reasonable inference from it, to render the evidence so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Issue Two is overruled.
Denial of motion to suppress identification based on show-up
In his third issue on appeal, Rivers urges that the trial court erred in refusing to suppress his identification by the victim Regalado based upon an impermissibly suggestive Ashow-up@ shortly after the robbery.
It is true that on-the-scene confrontations possess a degree of suggestiveness, and under certain circumstances may amount to a denial of due process. See Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1981). Nevertheless, the admission of evidence of a one person show-up, without more, does not violate due process. Id. Where a witness has made an in-court identification, appellant must show that it was tainted by improper pretrial procedure and confrontation. In re G.A.T., 16 S.W.3d 818, 827 (Tex. App.--Houston [14th Dist.] 2000, pet. denied). In determining the admissibility of an in-court identification, we employ a two-step inquiry: (1) whether the out-of-court identification procedure was impermissibly suggestive; and (2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Id. We examine the totality of the circumstances in any case to determine if due process has been violated. Id. These circumstances include: (1) the witness=s opportunity to view; (2) the witness=s degree of attention; (3) the accuracy of the description; (4) the witness=s level of certainty; and (5) the time between the crime and the confrontation. Garza, 633 S.W.2d at 513.
Based on the evidence outlined above, we cannot say that the procedure used here was impermissibly suggestive. Regalado was able to clearly view Rivers, both during the robbery and at the show-up. He testified that, as a police officer, he was trained to observe his surroundings. His description of Rivers before the show-up was reasonably detailed, as was his description of the vehicle. There was no uncertainty in Regalado=s identification. The time that elapsed between crime and confrontation was only thirty to forty minutes. Moreover, the police did not attempt to suggest which person he should identify, and there were two people at the show-up, not just Rivers alone. All of these factors support the trial court=s conclusion that Regalado=s identification of Rivers was not unduly suggestive. No error is shown. We overrule appellant=s third issue.
State=s comment on whether defense could call a witness
Finally, in his fourth issue on appeal, Rivers argues that the trial court erred in overruling his objection to the State=s comment that the defense was as capable of calling a juvenile witness as the State.
This issue arises from the examination of Officer Joe Sanford. The prosecutor asked the officer if the man arrested with Rivers turned out to be a juvenile. Sanford answered affirmatively. The prosecutor then asked if juvenile cases were processed through the district attorney=s office, and the officer responded they were not. Defense counsel then asked if juveniles were barred from testifying. The officer responded they were not. The prosecutor then asked if the defense could call a juvenile to testify just as the State can, and Sanford responded that they can. This last exchange was subject to timely objection.
Even were we to assume that the prosecutor=s question somehow implicated Rivers=s constitutional rights, as he suggests, we conclude that any comment was invited by defense counsel=s question about whether juveniles could testify. The trial court did not abuse its discretion in overruling this objection, as defendant cannot avail himself of any error he initiated. See Nunez v. State, 27 S.W.3d 210, 216-17 (Tex. App.--El Paso 2000, no pet.); Hirad v. State, 14 S.W.3d 351, 352 (Tex. App.--Houston [14th Dist.] 2000, pet. ref=d). The final issue is overruled.
Conclusion
Having found no error in the trial of this case, we affirm the trial court=s judgment.
SUSAN LARSEN, Justice
October 3, 2002
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
(Do Not Publish)