Affirmed and Memorandum Opinion filed February 15, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00181-CR
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JOSEPH WOODS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1028563
M E M O R A N D U M O P I N I O N
Joseph Woods appeals a conviction for aggravated robbery[1] on the grounds that: (1) the evidence was legally and factually insufficient to prove that he was the person who committed the offense; (2) the trial court abused its discretion by excluding relevant cross-examination testimony; and (3) the trial court denied the appellant due process by notifying the jury they would be sequestered. We affirm.
Sufficiency of the Evidence
Appellant=s first issue contends that the evidence identifying him as the person who committed the offense is legally insufficient because: (1) the complainant husband=s identification was unreliable due to his age, and the cross-racial nature of the identification; and (2) the complainant wife=s identification was unreliable due to her age and eyesight. In reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006).
In this case, both complainants testified that they had studied the robber's face and had seen it clearly on the day of the robbery. Both complainants also identified appellant as the man who robbed them in a photo array the day after the incident and at trial. Additionally, the evidence shows that: (1) after a police chase, appellant exited the vehicle being pursued and ran from police on foot; and (2) inside the vehicle, the police found jewelry belonging to the complainants. Because this evidence is legally sufficient to prove that appellant was the person who committed the offense, his first issue is overruled.
Appellant=s second issue asserts that the evidence was factually insufficient to prove that he committed the offense because: (1) there was strong alibi testimony; (2) there was evidence that an unidentified man ran from the car; (3) pawn tickets were found in the car; and (4) the elderly complainants= identifications were unreliable, as raised in the first issue. In reviewing factual sufficiency, we determine whether the evidence, though legally sufficient, is, when viewed in its entirety in a neutral light, either too weak to withstand scrutiny or so greatly outweighed by contrary evidence that the reviewing court can explain with some specific and objective basis that the verdict represents a manifest injustice. See Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006)
In this case, appellant, his aunt, and Melvin Monmouth each testified that appellant was at his grandmother=s house when the robbery allegedly occurred. Although there is thus conflicting testimony on whether appellant was the person who committed the robbery, the evidence supporting the identification is not so weak or greatly outweighed by the contrary evidence as to render it factually insufficient.[2] With regard to the evidence of an unknown individual escaping from police at the end of the car chase, and pawn tickets being found in the car, appellant=s brief does not demonstrate how either of these facts are even probative of whether he committed the robbery. Therefore, appellant=s second issue is overruled.
Cross-Examination Testimony
Appellant=s third issue alleges that the trial court denied his constitutional right to present a defense by excluding cross-examination of officer Jason Shirley regarding whether the complainants had failed to make an identification of appellant=s co-defendant when they first had the chance.[3] Appellant asserted that this testimony was relevant to undermine the complainants= credibility in identifying the appellant, which he alleges was the sole issue in the case.
Appellant=s trial counsel made an offer of proof (which the trial court called a bill of exceptions)[4] in which he stated that the excluded testimony would have shown that the complainants were unable to identify appellant=s co-defendant in the photo spread. However, because appellant has provided no explanation regarding how the circumstances surrounding the complainants= inability to identify the co-defendant compare to those pertaining to their identification of appellant, we have no basis to evaluate whether either even bears upon, let alone casts doubt on, the other.[5] Accordingly, his third issue affords no basis for relief and is overruled.
Deadlocked Jury
Appellant=s fourth issue contends that the trial court denied him due process when, after receiving a jury note indicating deadlock, it ordered the jury to continue deliberating and included an instruction describing jury sequestering. Appellant argues that, by indicating to the jurors that they would be sequestered, he put pressure on the remaining holdout, which then caused the jury to return a guilty verdict shortly thereafter.
To preserve an issue for appeal, the complaining party must make an objection or request as soon as the grounds for doing so become apparent in order to provide the trial court an opportunity to correct any error before it results in the need for a retrial. See Tex. R. App. P. 33.1(a)(1); Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006).
In this case, before giving the complained of instruction to the jury, the trial court asked whether counsel had any objections, and appellant=s counsel stated that he had none. He complained of this matter for the first time only after the jury had reached its verdict on guilt. Because appellant thereby waived any objection, this issue presents nothing for our review. In addition, because appellant cites no authority holding that any such action by a trial court is improper[6] (or even any evidence from the jurors showing that the court=s instruction had the alleged effect), this issue would afford no basis for relief even if it had been preserved.
Therefore, appellant's fourth issue is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed February 15, 2007.
Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.
Do not publish C Tex. R. App. P. 47.2(b).
[1] A jury found appellant guilty and assessed punishment at 35 years confinement.
[2] Santellan v. State, 939 S.W.2d 155, 166 (Tex. Crim. App. 1997) (concluding that a factual sufficiency challenge will not be sustained simply because the record contains conflicting evidence upon which the fact finder could have reached a different conclusion).
[3] The trial court sustained the State=s objection to the relevance of this testimony.
[4] See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 576 n.4 (Tex. 2006) (stating offer of proof is sometimes referred to as a bill of exceptions); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) (stating that an offer of proof may be in question‑and‑answer form, or it may be in the form of a concise statement by counsel).
[5] Additionally, because appellant failed to assert in the trial court that the exclusion of this testimony was a denial of his constitutional right to present a defense or to compulsory process, appellant has not preserved that complaint for our review.
[6] In Jenkins v. United States, the only case cited by appellant in support of his contention, the Supreme Court held that a trial judge=s statement, "you have got to reach a decision in this case," made to a deadlocked jury, in its context and under all the circumstances, was coercive. 380 U.S. 445, 446 (1965). However, appellant=s brief fails to address how this case supports his argument that the trial court coerced the jury by indicating to them merely that they would be sequestered.