Affirmed and Memorandum Opinion filed August 26, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-01054-CR
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CHARLES PHILLIP RUMMELL, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 02CR0916
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M E M O R A N D U M O P I N I O N
Appellant Charles Phillip Rummell was convicted by a jury of the felony offense of aggravated robbery and sentenced by the trial court to twenty-eight years= confinement. In two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm.
I. Factual Background
On April 25, 2002, appellant approached Patryce Moshay in the parking lot of a grocery store. Appellant pointed a gun at her and demanded her purse, which she gave to him. Appellant left in a white truck driven and owned by a man named Mr. Lamphere.[1]
Moshay returned to the store and called the police. Two officers responded and took informal statements from her. The next day, Moshay went to the police station to give a written report and identified appellant in a photographic lineup. Appellant was subsequently arrested and charged with aggravated robbery. The gun used in the robbery was recovered on a small boat owned by Lamphere.
II. Standard of Review
When an appellant challenges both the legal and factual sufficiency of the evidence, we address the legal sufficiency challenge first because an affirmative finding on that issue will result in rendition of a judgment of acquittal, while a finding of factual insufficiency warrants a remand for a new trial. Nickerson v. State, 69 S.W.3d 661, 668 (Tex. App.CWaco 2002, pet. ref=d).
In conducting a legal sufficiency review, we must view the evidence in the light most favorable to the prosecution and determine if any rational fact finder could have found the crime=s essential elements to have been proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We examine the entire body of evidence; if any evidence establishes guilt beyond a reasonable doubt, and the fact finder believes that evidence, we may not reverse the fact finder=s verdict on grounds of legal insufficiency. See id.
In conducting a factual sufficiency review, we view the evidence in a neutral light and set aside the fact finder=s verdict only if (1) the evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) evidence contrary to the verdict is strong enough that the beyond‑a‑reasonable‑doubt standard could not have been met. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. Apr. 21, 2004). However, our factual sufficiency review must be appropriately deferential so as to avoid substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Accordingly, we are authorized to set aside the jury=s finding of fact only in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 135.
III. Analysis
Appellant contends the evidence is legally and factually insufficient to support his conviction for aggravated robbery because there is no physical evidence linking him to the robbery. Specifically, appellant argues that the gun and the stolen property were not recovered from him, and his fingerprints were not found on the gun or the stolen property.
A person commits robbery if, in the course of committing theft[2] he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. ' 29.02(a)(1)B(2) (Vernon 2003). An aggravated robbery occurs when a person commits robbery as defined in section 29.02 and he uses or exhibits a deadly weapon. Tex. Pen. Code Ann. ' 29.03(a)(2).
Although there was a lack of physical evidence, Moshay positively identified appellant as the man who robbed her both in a photographic lineup and at trial. Positive identification of a defendant by the victim of a robbery is to be given great weight. Jones v. State, 687 S.W.2d 430, 432 (Tex. App.CHouston [14th Dist.] 1985, no pet.). Further, the credibility of the identification is supported by Moshay=s testimony that (1) she was able to get a good look at appellant=s face; (2) the parking lot was well-lit at the time of the robbery; and (3) he approached to within a few feet of her. Moshay testified that at the time appellant pointed the gun toward her face, she feared appellant would shoot her andCif hit in the right placeCshe would die.
Morton Grant, an officer with the League City Police Department investigating the case, testified that the gun identified by Moshay was recovered on a boat owned by Lamphere. Testimony elicited through Officer Grant established that appellant lived on that boat.[3] Appellant did not present any evidence contradicting Moshay=s or Officer Grant=s testimony.
Contrary to appellant=s assertions, the fact that his fingerprints were not recovered from the weapon or the stolen property is not dispositive. Officer Grant testified that the gun did not have an ideal surface for lifting prints because the surface was shiny and slick and any fingerprints would be easily smeared. The mere absence of fingerprints does not prove that appellant was not the man who robbed Moshay. See Santos v. State, 116 S.W.3d 447, 459 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d) (stating rational jury could find the elements of the offense beyond a reasonable doubt without fingerprint evidence).
After considering the evidence in the light most favorable to the verdict, we conclude that a rational fact finder could have found the crime=s essential elements to have been proven beyond a reasonable doubt. After considering the evidence in a neutral light, we conclude that the evidence is not too weak to support the finding of guilt beyond a reasonable doubt, and there is no contrary evidence to weigh against it. Accordingly, we hold the evidence is both legally and factually sufficient to support the conviction, and overrule appellant=s first and second points of error.
The judgment of the trial court is affirmed.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed August 26, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The record does not reflect Mr. Lamphere=s first name, however, the testimony reflects that he pleaded guilty to being the driver of the truck used in the robbery.
[2] A person commits the offense of theft if he unlawfully appropriates property with the intent to deprive the owner of property. Tex. Pen. Code Ann. ' 31.03(a) (Vernon Supp. 2004).
[3] Officer Grant testified that during an interview Lamphere stated appellant lived on the boat. Additionally, Stuart Buckler, a guest of Lamphere=s, confirmed that appellant resided on the boat in his statement to Officer Grant.