IN THE
TENTH COURT OF APPEALS
No. 10-99-103-CR
JOHNNY CALVIN SCOTT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 271st District Court
Wise County, Texas
Trial Court # 11,063
O P I N I O N
This is a circumstantial evidence case. A man was found guilty by the trial court of the crime of aggravated robbery. No employee present at the time of the robbery could positively identify him. The evidence of identity upon which the conviction was based consisted primarily of a pistol, mask, and an exact amount of money taken during the robbery which were all discovered in the house where the man was found and arrested. We hold that the evidence is legally sufficient to prove identity and affirm the judgment.
Procedural Background
Johnny Calvin Scott pled not guilty to the offense of aggravated robbery. He was convicted and sentenced by the trial court. Punishment was assessed at thirty-five years in prison. Scott now brings this appeal.
Sufficiency of the Evidence
The appellant’s brief does not specify whether it is directed to a complaint of legal insufficiency or factual insufficiency. A complaint about the “sufficiency” of the evidence will be construed as a legal sufficiency challenge. Caldwell v. State, 943 S.W.2d 551, 552 (Tex. App.—Waco 1997, no pet.) (claim of factual insufficiency must be properly raised). While courts of appeals have typically conducted a Jackson review when a defendant attacks the sufficiency of the evidence of an element of the offense, nothing in the Texas Constitution or the Texas Code of Criminal Procedure limits the courts of appeals to a Jackson review. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). However, appellate courts are required to construe the appellant’s brief liberally. See Tex. R. App. P. 38.9 (“briefs should present argument that will enable the court to decide the case”). We have reviewed the issue, the argument, and prayer and have concluded that Scott’s insufficiency point is a complaint about the legal insufficiency of the evidence of identity.
Scott contends that there was legally insufficient evidence to sustain the conviction for aggravated robbery. Specifically, Scott argues that the State failed to prove the element of “identity” beyond a reasonable doubt.
Legal Sufficiency
When reviewing a claim of legal insufficiency of the evidence, we must determine, after considering all the evidence in the light most favorable to the verdict, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998). This review is the same for both direct and circumstantial evidence cases. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992); see also Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991). Whether the evidence satisfies the current Jackson test is a question of law. Clewis v. State, 922 S.W.2d 126, 132 (Tex. Crim. App. 1996).
Circumstantial evidence - Identification
Evidence of identity can be proven by either direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Oliver v. State, 613 S.W.2d 270, 274 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh'g). Due to the lack of positive identification which directly links Scott to the robbery, it is necessary for us to determine whether the State has established identity through circumstantial evidence. Sutherlin v. State, 682 S.W.2d 546, 548 (Tex. Crim. App. 1984). To prove identity, items taken during a robbery, a weapon and other objects used to perpetrate the crime, when found in a defendant’s apartment have been held sufficient to show that a particular individual committed the robbery. Allen v. State, 899 S.W.2d 296, 300 (Tex. App.—Houston [14th Dist.] 1992), pet. dism’d, improvidently granted, 945 S.W.2d 829 (Tex. Crim. App. 1997).
Evidence at Trial
The robbery took place at a Dairy Queen located in Rhome, Wise County , Texas, on the night of August 29, 1998, around 10:00 p.m. At the time of the robbery, there were three employees closing the restaurant. One of the employees, Nikki Echols, was involved in a relationship with Scott. Echols had been given the day off, but had called the manager requesting permission to come to work. After working a couple of hours, Echols left the Dairy Queen, but she returned later that night to assist with closing.
The robber, armed with a gun, entered the Dairy Queen through an unlocked door at the back of the restaurant. Echols, who was counting the day’s receipts, was in the back of the restaurant when the robber came through the door. She immediately began to scream when she saw him. Richie Osborn, another employee, was standing in front of the drink machine when he heard Echols scream. He then saw the robber making his way through the restaurant. The robber struck Osborn in the head with the gun, knocking him to the ground. Echols then proceeded to hand over the money that she had been counting. The robber took the money and immediately fled the building. The cash taken in the robbery totaled $3658. This total consisted of $1806 from the prior days receipts, which was in a separate bank bag, $1452 from sales that day, and $400 which was routinely kept for the cash registers.
The evidence establishes Scott arrived at Echols’s house shortly after the time the robbery was committed. Robert Throneberry, Echols’s stepfather, was present in the home when Scott arrived. Throneberry had let Scott borrow his pickup. When Throneberry noticed that it was about to rain, he went out to the truck to roll up the windows and lock the doors. Scott went with him. As Throneberry opened the driver’s door, he noticed a pistol laying on the seat. When questioned about the gun, Scott told Throneberry that the pistol belonged to Echols. Scott took the gun from the seat and put it in his back pocket. After returning to the house, Throneberry’s wife (Echols’s mother) told him that Echols had called and said that the Dairy Queen had been robbed. Throneberry then accompanied his wife to the restaurant to check on his stepdaughter, leaving Scott at the house.
It is somewhat unclear from the record why the police initially suspected Scott. Nonetheless, Throneberry cooperated with the police, directed them back to his home, and asked Scott to step out of the house. Scott was then placed under arrest. Throneberry consented to a search of his home and directed the officer’s to Echols’s bedroom. David Walker, an investigator with the Wise County Sheriff’s Office, searched the home focusing on a closet in Echols’s room. The search of the closet resulted in the discovery of $1806 in small bills, a mask made from a T-shirt, and a pistol. The authorities also found a shirt, similar to the one worn by the robber, about a quarter mile from the restaurant on a likely route between the Dairy Queen and Throneberry’s home. Additionally, evidence of tennis shoe footprints found outside the back door of the Dairy Queen were matched to the tennis shoes that Scott was wearing at the time of his arrest.
Richard Osborn, the employee injured during the robbery, testified at trial that the gun and the mask found in Throneberry’s home looked like the ones used in the robbery. Osborn was unable to positively identify Scott as the robber, but he testified that he knew the robber was a black male because he could see through the eye holes in the mask. Echols testified that she knew that Scott could not have been the robber because she would have recognized both his voice and appearance. Finally, there was conflicting testimony regarding the exact description of the shirt worn by the robber and whether the one found by the authorities on the route they suspected Scott traveled was the one worn by the robber. There was nothing else offered to link this shirt to Scott.
Application of Law to Facts
While there is no direct evidence identifying Scott as the robber, there is ample circumstantial evidence to this effect in the record. We find the evidence legally sufficient to support the jury’s verdict.
Conclusion
We overrule Scott’s issue on appeal and find that the evidence is legally sufficient for a rational trier of fact to find that Scott was the perpetrator of the aggravated robbery beyond a reasonable doubt. We affirm the judgment of the trial court.
TOM GRAY
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed June 7, 2000
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