Affirmed and Memorandum Opinion filed April 1, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00362-CR
NO. 14-03-00492-CR
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JUAN ALBERTO DELEON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause Nos. 01CR1711 & 01CR1712
M E M O R A N D U M O P I N I O N
The jury convicted appellant for aggravated robbery and the trial court assessed punishment at forty years= confinement in the Texas Department of Criminal Justice, Institutional Division. In a single point of error, appellant contends the evidence identifying him as the robber was factually insufficient. We affirm.
FACTUAL BACKGROUND
On September 12, 2001, Barbara and J.D. Shrum spent the night at a rental beach house on Bolivar Peninsula. Around 8:00 p.m., they went walking on the beach. About a mile from the beach house, a car stopped near them. A man carrying a shotgun got out of the car and demanded money and jewelry from the Shrums. They ran away to the nearest lighted beach house and called the police.
Two Sheriff=s deputies responded to the call. They took reports from the Shrums, and one of the deputies drove the Shrums back to their rented beach house.
That same evening, the Galveston Police Department received a disturbance call regarding four men on the Bolivar ferry. Two officers responded to the call and took the four men into custody, handcuffed them, and placed them in a police car. While the men were being handcuffed, one of them threw some shotgun shells into the water. One of the officers found a shotgun inside the car occupied by the men.
Five or ten minutes after the Shrums had been returned to their rented beach house, a Sheriff=s deputy returned and informed them he believed the man who accosted them had been arrested on the ferry. The Shrums were taken to where the men were being held and J.D. identified appellant as the man with the shotgun.
ANALYSIS
In a single point of error, appellant contends the evidence identifying him as the robber was factually insufficient. Appellant argues that poor viewing conditions on the night of the offense rendered the indentification unreliable and that there were inconsistencies between the Shrums= initial description of the robber and appellant=s appearance.[1]
In reviewing factual sufficiency, we look at all of the evidence in a neutral light, and will reverse a conviction only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Thus, we must determine Awhether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).
The fact finder is the sole judge of the weight and credibility of witness testimony, and a reviewing court may not substantially intrude on that role. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Contradictions in a witness=s testimony do not render the evidence insufficient, but affect its weight and credibility. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986); Landers v. State, 110 S.W.3d 617, 621 (Tex. App.CHouston [14th Dist.] 2003, no pet.). Positive in‑court identification of a defendant by victims 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.); see also Haywood v. State, 507 S.W.2d 756, 758 (Tex. Crim. App. 1974). The jury may choose to believe or disbelieve any portion of a witness=s testimony. Losada, 721 S.W.2d at 309; Landers, 110 S.W.3d at 621.
Appellant first argues that, because of poor viewing conditions, evidence identifying him as the robber was so weak as to make the conviction clearly wrong and manifestly unjust. In support of his position, appellant cites testimony by Barbara that (1) the beach was intermittently dark, (2) the glare from the car=s headlights impaired their vision when it approached, and (3) J.D. and the robber were initially fifteen to sixteen feet apart. J.D. did not testify as to the lighting conditions. The evidence indicates, however, that J.D. walked to within six feet of the robber and spoke with him, while Barbara walked away from the robber. The jury=s determination that J.D. was able to see the robber clearly enough to later identify him was not clearly wrong or manifestly unjust.
Appellant also argues that contrary evidence greatly outweighs the evidence that appellant was the robber. In support of his position, appellant cites evidence that (1) the Shrums reported that only one man was with the robber, but three men were arrested with appellant, (2) the Shrums identified the car as having two doors, but the car on the ferry had four doors, (3) Barbara testified the rear license plate of the robber=s car was missing or not lit, but the rear license plate of the car on the ferry was clearly visible, (4) J.D. reported the robber wore dark shorts, but appellant was wearing pants when arrested, (5) J.D. reported the robber as being clean-shaven, but appellant had a beard and mustache when arrested, (6) J.D. did not report a gold earring appellant was wearing when arrested, (7) J.D. reported the weapon used by the robber was possibly a pump-action shotgun, but the shotgun retrieved was a single-shot shotgun, and (8) J.D. testified the robber had longer hair than appellant did at trial, but appellant had short hair when arrested.
Offsetting this evidence, there is evidence supporting the verdict that (1) although Barbara testified that she only saw two men in the car, she did not testify that there could not have been others, and as noted above, her view of the robbery was limited, (2) both J.D. and Barbara testified that the car on the ferry matched the one they saw on the beach, (3) the officer who took the photograph of the car in the record testified that the license plate was illuminated by the flash on his camera, (4) J.D. correctly identified the light-colored tank top appellant was wearing, (5) although the booking photograph of appellant clearly shows that he has a beard and mustache, neither is very full, (6) the earring appellant was wearing in the booking photograph appears to be a simple gold hoop and is not prominent, (7) J.D. correctly described the shotgun as being a single-shot and only said that it was Apossibly a pump,@ and he identified it in court, and (8) although the booking photograph of appellant shows that his hair is not Along,@ it is conceivable that it could have been considerably shorter at trial.
It was the function of the jury to consider the conflicting evidence, and we cannot say that any inconsistencies greatly outweigh J.D.=s unwavering identification of appellant both on the night of the offense and at trial. See, e.g., Hester v. State, 909 S.W.2d 174, 178 (Tex. App.CDallas 1995, no pet.) (victims failured to notice defendant=s scar and missing tooth); Escovedo v. State, 902 S.W.2d 109, 115 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d) (victim=s testimony regarding location of tattoo was inconsistent); Lucious v. State, 828 S.W.2d 118, 122 (Tex. App.CHouston [14th Dist.] 1992, no pet.) (defendant was arrested wearing different clothes than described); Rodgers v. State, 827 S.W.2d 376, 378 (Tex. App.CCorpus Christi 1992, no pet.) (defendant, who had a mustache, was described as not having a mustache); Revis v. State, 714 S.W.2d 123, 124 (Tex. App.CHouston [1st Dist.] 1986, no pet.) (clear discrepency between defendant=s appearance and description given to police). Appellant=s point of error is overruled.
The judgment of the trial court is affirmed.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed April 1, 2004.
Panel consists of Justices Yates, Hudson, and Fowler.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Although appellant also contends in his brief that the pre-trial identification procedure was impermissibly suggestive, he did not object to admission of the pre-trial identification or the in-trial identification. He thus waived any complaint on appeal that the in-court identification had been tainted by the pre-trial identification. See In re G.A.T., 16 S.W.3d 818, 825B26 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).