Affirmed and Opinion filed January 20, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00368-CR
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PATRICK LEE COLLINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 900,768
O P I N I O N
Appellant, Patrick Lee Collins, was convicted by a jury of aggravated robbery and sentenced to twenty-five years= incarceration in the Texas Department of Criminal Justice, Institutional Division. In his sole issue on appeal, appellant claims the evidence is factually insufficient to support his conviction. We affirm.
On December 29, 2001, the complainant, Don Perry, and his friend, Delvin Francis, were driving from Louisiana to Houston when Perry was stopped in Woodville, Texas for speeding. Perry was subsequently arrested for driving while intoxicated and spent the night in jail. Francis called a friend to pick him up and drive him back to Houston. When Perry was returning to Houston the following day, a friend named Tavarus called him several times stating that he wanted to come over to Perry=s apartment; although Perry said he was tired, Tavarus insisted. Perry arrived home around 5:30 p.m., and Tavarus and his girlfriend, Kim Reed, arrived a few minutes later.
Tavarus and Reed were suppose to bring a six-pack of beer, but when they arrived, they each had only one beer. Tavarus went outside to get the rest of the beer and as he was coming back inside, two men shoved their way into the apartment behind him. The first man, who was carrying a Tech 9 or Mack 10 gun, hit Perry in the head with the gun and threw him on the floor. Both men beat him with Asomething, like padded leather gloves.@ Perry was bound with duct tape. According to Perry, the first man was large, wearing a dark colored Aski cap or cut out cap or something and skull cap with the eyes cut out,@ and carrying the gun. Perry only caught only a quick glimpse of the second man because the first man was coming at him.
Perry testified that he recognized the voice of the second man as belonging to appellant. Perry knew appellant through another defendant, Dexter Jackson, whose voice he also recognized. According to Perry, appellant said to him, AYou got my friend locked up. You are going to pay for this here.@ The larger man picked Perry up Alike a rag doll@ and beat his head against the computer desk. At some point, Perry heard a knock at the door.
Delvin Francis testified that when he arrived at Perry=s apartment, he knocked on the door. When no one answered, he knocked again. The Adoor [was] snatched open@ by a man wearing something over his headCAsome thin material that you could see through when you put it over your head.@ Francis could see the man=s profile, mouth, and eyes. Francis, who is familiar with guns from his experience in the military, testified that man had a Tech 9 gun. When Francis said he must be in the wrong place, the man said, ANo, you ain=t, come on in.@ When he entered the apartment, Francis saw Perry on the floor, bleeding and Aswelled up around the head.@ Francis also observed a man and a woman sitting on the couch; they were Atied a little bit but they didn=t have nothing over their face.@ Another larger man told Francis, AOld man, . . . Just be cool. It will all be over in a little bit. This ain=t about you.@ The man then bound Francis with duct tape, put him on the ground, and covered his head with a pillow.
Even with the pillow covering his head, Francis could still see through a crack. Francis observed Perry being carried into the bathroom by one of the intruders. Francis could also see three individualsCtwo of them were packing up things from Perry=s apartment while the third was in the bathroom with Perry. Francis was able to free himself from the duct tape, but Tavarus said, AOld man, you get loose.@ Francis testified that appellant and the larger man then came back into the living room. Appellant pointed the gun at Francis while the larger man tied him up again, took his billfold, checkbook, and car keys, and carried him into the other bathroom, where he placed Francis in the tub.
Perry testified that he could hear Francis being bound with tape. After that, someone carried Perry into one of the bathrooms, dropped him in the bathtub, and piled blankets and pillows on top of him. Perry could hear a third voice. The perpetrators would periodically come into the bathroom and beat Perry until he told them where he had hidden his money. Perry heard them leave in his pickup truck after they found the money. Perry broke free by tearing the tape with his teeth and ran into the living room. Perry noticed Tavarus and Reed sitting on the couch; Reed had tape around her ankle, but Tavarus did not have any tape on him. Perry found Francis laying in the tub in the other bathroom, with his hands taped behind his back. After freeing Francis, Perry called the police.
Deputy Phillip Lillibridge of the Harris County Sheriff=s Department received a call for a home invasion robbery at an apartment complex. When he arrived, Perry and three other people were there; the apartment appeared to have been ransacked. Deputy Lillibridge observed that Perry, whose head was bleeding, was visibly shaken and distraught, i.e., Ahow anybody would be that was beaten and robbed at gunpoint,@ and summoned the paramedics. Perry told him that among other items, his big screen TV, $4,000 in cash, and his pickup truck were missing. Deputy Lillibridge called in the license plate number of the missing pickup truck and requested crime scene investigators.
When Deputy Lillibridge first responded, there was an indication over the radio that three males were involved in the robbery. Deputy Lillibridge testified that Perry told him there were two masked gunmen and that he thought he might know who was involved in the robbery and gave him the name of a person with whom he had had past dealings. The only description Perry gave Deputy Lillibridge of any intruder was for that of a large black male. Perry did not mention anything to Deputy Lillibridge about whether he recognized the intruders= voices. Nor did Perry relate anything about the demeanor of Tavarus and Reed.
On January 1, 2002, Perry called the Sheriff=s Department. Deputy Michael Parsons met with Perry, who wanted to report some things about the robbery that he had since remembered. Deputy Parsons testified that Perry told him that he thought the perpetrators were Tavarus= friends. Perry also told Deputy Parsons that he recognized the voice of one of the suspects whose name he thought was ABrian@ and who went by the street name ACoony.@ Perry=s pickup truck was recovered on January 1, 2002, when a Harris County deputy constable spotted it sitting in an abandoned lot.
Detective T.O. Keen with the Harris County Sheriff=s Department began working on this case on January 3, 2002. At that time, Perry told Detective Keen that he thought he had been set up by a person who was present during the robbery. Detective Keen further interviewed Perry on January 8. Detective Keen testified that Perry recognized one of the voices as belonging to someone whose street name was ACoony@; Perry thought ACoony=s@ real name was Byram Jackson, but he was not sure. Detective Keen determined that Byram Jackson was not a correct name and was not able to develop a suspect from that name.
Detective Keen, however, received a Crime Stoppers tip from the Houston Police Department regarding appellant=s involvement in the robbery. After receiving the Crime Stoppers tip, Detective Keen put together a photospread, which included appellant=s photograph, and showed it to Perry on January 28, 2002. Detective Keen testified that Perry identified appellant
. . . as a person that he felt was involved with the people in the robbery itself. Stated he did not see him during the robbery. His eyes were taped shut. He knew there was [sic] two and he felt a third person [was] involved. He thought he was going to be a person that was going to be actually involved in the robbery.
Detective Keen also showed the photospread to Francis, who identified appellant as one of the individuals involved in the robbery. Francis told Perry that because of the pantyhose pulled over appellant=s face, he would have to see appellant in person before he could be 100 percent sure of his involvement in the robbery, Abut [Francis] was very strong in the identification.@ Detective Keen testified that based on this information, he was able to obtain an arrest warrant for appellant. After appellant was in custody, Detective Keen conducted a live lineup on February 8, 2002. Francis identified appellant as the first person who grabbed him when the door was opened.
Detective Keen recovered Perry=s big screen TV. Ramon Conner, the nephew of Daphne Jackson who is appellant=s common law wife, had knowledge of the TV being brought to appellant=s residence on the night of the robbery. Conner testified that Daphne was angry about the television being in the house. Appellant asked Conner to help him move the television to a neighbor=s house. Appellant also asked Conner if he could Aget rid of it.@ Conner sold the television to a friend the next day. Conner subsequently heard that Detective Keen had been looking for him. Conner met with Detective Keen and told him what had occurred with regard to the television. After his arrest, appellant told Connner not to get the television back because it Awas evidence.@ Conner testified that at the time he sold the television, he did not know it was stolen or how it came to be at Daphne=s house.
In the only issue raised in this appeal, appellant challenges the factual sufficiency of the evidence supporting his conviction. Appellant primarily argues that the State=s identification evidence was fabricated.
When reviewing claims of factual insufficiency, it is our duty to examine the jury=s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996). There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to be clearly wrong and manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). Determining which standard applies depends upon whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof, then the Amanifestly unjust@ standard applies. Id. On the other hand, if the complaining party had the burden of proof, then the Aagainst the great weight and preponderance@ standard applies. Id. Under the Texas Court of Criminal Appeals= modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards. Id. Thus, when reviewing factual sufficiency challenges, 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).
Appellant argues that because the accounts Perry and Francis gave to Deputy Lillibridge immediately following the robbery and to Detective Keen during his investigation are different from the accounts to which they testified at trial, it is evident that Perry and Francis fabricated their trial testimony identifying him as being at the scene of the robbery. Appellant complains that although Perry never mentioned the following matters to Deputy Lillibridge or Detective Keen, he nonetheless testified as to each of the following points:
! that one of the perpetrators was carrying a Tech 9 or Mack 10 gun;
! that appellant said, AYou got my friend locked up. You are going to pay for this here@;
! that Perry identified three individuals, including appellant, to the Sheriff=s Department a couple of days after the robbery even though appellant=s name surfaced as a result of a Crime Stoppers tip and Perry was only able to identify one person by the street name Coony;
! that Perry recognized appellant=s voice during the robbery, but only identified appellant in the photospread as an individual who might be involved with those who committed the robbery; and
! that Perry thought he had been set up by someone who was present during the robbery.
Perry testified that when he talked to the deputy immediately after the robbery he did not mention appellant or the other intruders because he was confused after having been beaten in the head. Perry stated that Aat the time [he] was assaulted [his] head was busted and it was swollen all up like a big tomato about to burst and [he] have [sic] major headaches.@ Deputy Lillibridge described Perry=s demeanor after the robbery as Ahow anybody would be that was beaten and robbed at gunpoint.@ Two days later, Perry called the Sheriff=s Department when he had put things together. Perry testified that he did not see how many intruders there were, but he was certain appellant was involved in the robbery because he recognized appellant=s voice. Detective Keen testified that Perry told him that he thought he had been set up by an individual who was in his apartment during the robbery. Detective Keen also explained that he met with Perry again after his initial conversation with him because Perry was not able to think clearly after the robbery and was able to remember more details of the robbery. The lack of details in his initial report to Deputy Lillibridge and to Detective Keen is evidence of Perry=s state of mind immediately following the robbery.[1]
Appellant also complains that Francis testified about matters without ever having mentioned those matters to the investigating deputies:
! that the man who Asnatched open@ the door was wearing something like pantihose over his head and that he could see the man=s profile;
! that the weapon was a Tech 9;
! that he could see Perry=s belongings being taken out of the apartment and that he could see three people in the apartment; and
! that he suspected Tavarus and Reed were involved in the robbery.
Francis testified that his original statement mentions only two men, not three, because his statement includes only what happened when he first arrived at Perry=s apartment. Francis, however, identified appellant as the person who grabbed him and brought him inside the apartment.
Appellant further argues the physical evidence found in his house does not support Perry=s and Francis= trial testimony because no pantihose mask or large caliber guns were recovered. Instead, appellant contends the only physical evidence linking him to the robbery was Ramon Conner=s testimony that Perry=s television was at appellant=s house after the robbery. Appellant contends that, at best, this puts him in possession of a stolen television, but it does not put him at the scene of the robbery. However, Conner testified that appellant told him to get rid of the television because it Awas evidence.@ The presence of Perry=s television in appellant=s house is evidence connecting him to the robbery.
Appellant contends A[t]he physical evidence recovered from Mr. Perry=s stolen pickup absolves [him] from guilt.@ Deputy Linda Haley of the Sheriff=s Department=s latent lab testified that although some prints were recovered from the vehicle, none were identified as belonging to appellant. The fact that appellant=s prints were not found in the vehicle could be consistent with appellant either having left in a different vehicle or wearing gloves. The absence of fingerprints alone does not exonerate appellant from any guilt in having participated in the robbery.
Appellant finally argues Francis= pre-trial identification is suspect because his initial identification from the photospread was only tentative and the identification from the live lineup is suspect because appellant was the only person common to the photospread and live lineup. Francis, however, picked appellant out of the photospread, but said he needed a live lineup before he could be 100 percent sure that appellant was involved in the robbery. Detective Keen also testified that Francis Awas very strong in the identification.@
The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Therefore, the jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Moreover, reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).
The jury was free to reconcile any conflicts in Perry=s and Francis= testimony and to believe whatever version of events transpired during the robbery. At a minimum, however, appellant was identified as one of the intruders at Perry=s apartment and was seen in possession of an item taken from Perry=s apartment immediately after the robbery. The evidence is not so weak as to undermine confidence in the jury=s verdict. Appellant=s sole issue is overruled and the judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Opinion filed January 20, 2004.
Panel consists of Justices Yates, Hudson, and Fowler.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] With respect to his claim that Deputy Lillibridge testified that he asked Perry and Francis if they thought Tavarus= and Reed=s demeanor was suspicious, appellant has mistaken defense counsel=s question for Deputy Lillibridge=s testimony. Appellant=s trial counsel asked Deputy Lillibridge, ADid he [Perry] tell you anything about the behavior, the demeanor of the young male and female that was there that he thought was suspicious in any way?@ Deputy Lillibridge replied, ANo, sir.@