Affirmed In Part, Reversed In Part, and Remanded and Memorandum Opinion filed June 14, 2011.
In The
Fourteenth Court of Appeals
NO. 14-10-00383-CR
RONALD EUGENE TILLER, Appellant
v.
The State of Texas, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1197877
MEMORANDUM OPINION
Appellant Ronald Eugene Tiller appeals his conviction for felony robbery. After the jury found him guilty, the trial court found two enhancement allegations true and assessed punishment at 30 years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice. Appellant contends that the evidence is legally insufficient to support his conviction and that appellant’s punishment was improperly enhanced. We affirm appellant’s conviction, reverse the trial court’s judgment sentencing appellant to 30 years’ imprisonment, and remand the case for a new punishment hearing.
Background
On November 7, 2007, as Shaileshkumar Shah was working the dayshift at a Texaco gas station that he co-owned, a masked man, who was carrying what appeared to be a gun, entered the store, went behind the counter, and attempted to break into the cash register. The man then put down the gun (which was actually a fake gun that looked like a Glock 19), lifted the register off the counter, and slammed it to the ground where it broke open. In the process, a gauze bandage fell off his hand. As the man was scrambling to grab cash from the register, Shah confronted him. The man shoved Shah to the ground, and Shah received scratches on his face. The gun also fell on the floor during the scuffle and broke into pieces. After he took the money, the man jumped over the counter and fled, leaving behind the gun and bandage. The entire incident was recorded by the store’s security surveillance cameras.
The police arrived within a few minutes of the incident. Although he could not later positively identify the masked individual in a photo array, Shah described his assailant as a dark-skinned black male between 30- and 35-years-old who was “skinny” and approximately five-feet, five-inches tall. Shah confirmed that this man, who was not wearing any gloves, touched several items in the store, such as the cash register and counter, and leaned against Shah’s car as he fled. The State was unable to recover any fingerprint evidence, but did recover a partial palm print that did not match appellant’s.
The State, however, obtained DNA evidence consistent with appellant’s DNA from the bandage and the gun. According to the State’s Crime Scene Unit investigator, the likelihood that some person other than appellant would have the DNA profile identified on the gun “was 1 in 3,046 Caucasians, 1 in 7,120 African-Americans, [or] 1 in 3,230 Hispanics.” The likelihood that some person other than appellant would have the DNA profile identified on the gauze was much more noteworthy, as attested to by the investigator: “1 in 2.195 quintillion for Caucasians; 1 in 13.64 quadrillion for African-Americans; 1 in 1.383 quintillion for Hispanics.”
Sufficiency of the Evidence
In his first issue, appellant challenges the legal sufficiency of the evidence to support his robbery conviction on two grounds: he alleges, first, that the State did not establish that he is the person who committed the crime and, second, that there was a fatal variance between the State’s pleadings and its proof.
We review the sufficiency of the evidence in this case under a rigorous and proper application of the legal sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 906 (Tex. Crim. App. 2010) (plurality op.); Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet.). When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 899. This court does not sit as a thirteenth juror and may not substitute its judgment for that of the fact-finder by re-evaluating the weight and credibility of the evidence. Id. at 901–02, 905; see also Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We defer to the fact-finder’s resolution of conflicting evidence unless the resolution is not rational. Brooks, 323 S.W.3d at 902 n.19, 907; Pomier, 326 S.W.3d at 378.
A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, that person intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a) (Vernon 2003). “In the course of committing theft” is defined as “conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” Id. § 29.01(1). A person commits theft if the person unlawfully appropriates property with intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03 (Vernon Supp. 2009). Appropriation of property is unlawful if it is without the owner’s effective consent. Id. Bodily injury is defined as “physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8).
1. Identity
Appellant first complains that the State did not establish his identity as the perpetrator of the crime because (1) Shah did not identify appellant as the robber, (2) no fingerprint evidence was obtained by the State and the partial palm print did not belong to appellant, and (3) the State did not show the circumstances by which appellant’s DNA was deposited onto the gun and the gauze bandage.
The identity of the perpetrator of an offense can be proven by direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). Direct evidence of the elements of the offense is not required. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). Juries are permitted to make reasonable inferences from the evidence presented at trial, and circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Id. at 14–15. Circumstantial evidence alone may be sufficient to establish guilt. Id. at 15.
Reviewing the evidence presented in this case with the appropriate level of deference to the jury’s credibility determinations, we note the following evidence supports the conclusion that appellant was the robber: (1) the surveillance video shows the robber handling the gun and later, a large, white bandage falling from his hand, (2) both the gun and bandage were recovered and tested positive as consistent with appellant’s DNA, and (3) Shah’s description of the robber substantially matches the physical characteristics of appellant.
Shah could not identify appellant as the robber on a photo array, but eyewitness testimony is not necessary to determine identity. See Earls, 707 S.W. 2d at 85; Conyers v. State, 864 S.W.2d 739, 740–41 (Tex. App.—Houston [14th Dist.] 1993, writ ref’d) (rejecting legal sufficiency challenge when there was no eyewitness identification, but surveillance screenshots were available “and the jury could compare the photos with the physical appearance” of the defendant); see also Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref’d) (“[I]dentity may be proven by inferences.”). The State presented evidence explaining why Shah was unable to identify his assailant—the robber wore a mask—and presented other evidence that appellant was the perpetrator of the crime—the video, DNA evidence linking appellant to the crime, and Shah’s physical description of appellant. The fact that Shah never identified appellant as the gunman, standing alone, does not make the verdict improper. See Conyers, 864 S.W.2d at 741.
Appellant argues that his DNA could have come in contact with the gauze and the gun sometime before the robbery occurred and cites Eby v. State, 165 S.W.3d 723 (Tex. App.—San Antonio 2005, pet. ref’d) in support of his argument that his DNA does not place him at the scene of the crime. In that case, the court of appeals held that there was factually insufficient evidence to support a conviction for murder (although the evidence was legally sufficient), based on a number of factors, including that DNA on the victim’s fingers could have been deposited there from a pair of gloves purportedly loaned to the victim by the appellant’s wife before the murder. Id. at 733–34. No other evidence directly linked the appellant in that case to the victim. Here, by contrast, the video footage shows that, during the commission of the crime, the robber handled and dropped the gun, and the gauze fell off his hand. DNA consistent with the appellant’s was the only DNA found on the gauze. Similarly, DNA found on the gun was consistent with appellant’s and Shah’s, although there was a third, unidentified contributor of DNA to the gun.
Appellant also takes issue with the sufficiency of the DNA evidence because the State’s DNA analyst described appellant as a “possible contributor” to the DNA found on the gun and the bandage. The analyst explained that in the field, the term “possible contributor” takes into account the outside possibility that someone might have an identical or genetic twin. He elaborated: the likelihood that someone other than appellant would have the DNA profile identified on the gun “was 1 in 3,046 Caucasians, 1 in 7,120 African-Americans, [or] 1 in 3,230 Hispanics,” and the likelihood that someone other than appellant would have the DNA profile identified on the gauze was “1 in 2.195 quintillion for Caucasians; 1 in 13.64 quadrillion for African-Americans; 1 in 1.383 quintillion for Hispanics.” He explained, in terms of probability, that the Earth’s population is “about 6.3 billion.” The jury was entitled to weigh this evidence in making its determination that appellant was the perpetrator of the crime, and we may not substitute our judgment for that of the jurors. See Brooks, 323 S.W.3d at 901–02.
Shah described his assailant as “not big[, j]ust maybe five and five,” and “skinny.” The record shows that appellant is five-feet, six-inches tall and, when this case was tried, was “stocky” or “big” and weighed approximately 250 pounds. But the record shows that appellant put on some weight after he was incarcerated. The deputy who first responded to the robbery, moreover, testified that Shah described the robber as weighing between 200 and 240 pounds. Any discrepancies in the description of appellant’s appearance apply to the weight and credibility of the witnesses and were before the jury for their consideration. Earls, 707 S.W. 2d at 85.
Appellant’s argument regarding the lack of fingerprint evidence also amounts to an attack on the weight and credibility of the evidence. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) (“The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the strength of the evidence.”). The Crime Scene Unit investigator testified that many variables impact the recovery and quality of fingerprint evidence, such as weather conditions, whether the person was sweating, or whether the surface is smooth or sticky. He stated that appellant’s fingerprints likely were not recovered from Shah’s car because the car was dusty, and fingerprints “just slide off” dusty surfaces. The investigator further testified that the videotape showed appellant’s hand sliding as he touched the counter and jumped over it and that sliding creates a smudge. The investigator also testified that he only was able to recover a partial palm print from the counter. The jury was entitled to weigh this evidence and the fact that the partial palm print was not identified as appellant’s, and we decline to substitute our judgment for the jury’s on this issue as well.
The jury was the sole judge of the credibility of and weight to be given to the DNA evidence presented by the State, the lack of fingerprint evidence, the partial palm print that did not match appellant’s, the video surveillance, and the physical descriptions of appellant. We defer to the jury’s weight and credibility determinations and find the evidence sufficient to support the jury’s verdict.
2. Variance
Appellant next complains that the State did not present legally sufficient evidence to show that appellant “[struck] the complainant with his hand,” as alleged in the indictment. Specifically, he alleges that the State did not present evidence to identify Shah as the complainant or to establish that appellant caused bodily injury to Shah by “striking the complainant with his hand.”
“A ‘variance’ occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial.” Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). When this happens, “the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument.” Id. “A variance that is not prejudicial to a defendant’s ‘substantial rights’ is immaterial.” Id. at 248. Only a “material” variance (also called a “fatal variance”) between the indictment and the proof, i.e., one that prejudices the defendant’s substantial rights, will render the evidence insufficient. Id. at 249, 257. We ask two questions to determine whether a variance is prejudicial to a defendant’s substantial rights: “whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.” Id. at 248, 257.
Appellant was charged by indictment, in pertinent part, as follows:
[I]n Harris County, Texas, Ronald Eugene Tiller, hereafter styled the Defendant, heretofore on or about November 7, 2007, did then and there unlawfully, while in the course of committing theft of property owned by Shaileshkumar Shah and with intent to obtain and maintain control of the property, intentionally, knowingly and recklessly cause bodily injury to Shaileshkumar Shah, by striking the complainant with his hand.
Appellant asserts that the State did not present any evidence that identified Shah as “the complainant.” But the record contains several references to Shah as the complainant: (1) the investigating officer stated that he met with “the Complainant, Mr. Shah,” to show him the photo array; (2) another officer testified that he collected physical evidence (a buccal swab)[1] “from the Complainant, Shah” and, earlier in his testimony, had explained that “[t]he Complainant is the victim at the scene”; (3) the responding officer identified Shah as the injured party after the robbery; and (4) the DNA analyst referred to the victim as “the Complainant, Mr. Shah” when he identified samples of DNA. We hold that the State presented evidence that Shah was the complainant; thus, there is no variance between the indictment and the proof offered at trial on that issue.[2]
Appellant next asserts that the State did not present legally sufficient evidence that appellant caused bodily injury to Shah “by striking . . . with his hand.” We note that the video surveillance shows a struggle between Shah and the robber, and Shah testified that his assailant “[h]it me,” “pushed me,” and “throw [sic] [me] on the floor” and that Shah had scratches on his face that resulted in scarring. There was thus evidence from which the jury could infer that appellant caused bodily injury to Shah by striking him with appellant’s hand.[3] Even if that were not the case, any variance between the proof presented by the State on this issue and the indictment would be immaterial, as the record shows that Shah clearly sustained bodily injuries from his attacker and the manner in which he sustained the injury is not a substantive element of the offense. See Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2007) (recognizing that variance is immaterial and evidence is legally sufficient when substantive elements of offense have been proven). Appellant, moreover, did not present evidence that he did not know whom he was accused of injuring or that he was surprised by the proof at trial. See id. We decline to find a variance between the proof presented by the State and the indictment on this issue.
For the preceding reasons, we overrule appellant’s first issue.
Improper Punishment
In his second issue, appellant complains that the State did not establish the finality of his conviction alleged in the second enhancement paragraph of the indictment. The State agrees, but asserts that appellant is entitled only to reversal of his sentence and remand for a second punishment hearing. We agree.
Appellant had two prior convictions, for felony possession of a controlled substance and felony robbery. The indictment included two enhancement paragraphs that, if proven, would subject appellant to punishment as a “habitual offender” under Texas Penal Code Section 12.42(d). Appellant entered pleas of “true” to the first enhancement and “not true” to the second enhancement. The trial court found both enhancement allegations true and assessed punishment at 30 years’ incarceration.
For punishment to be assessed properly under section 12.42(d), the State was required to prove the following chronological sequence of events: (1) the first conviction became final; (2) the offense leading to a later conviction was committed; (3) the later conviction became final; and (4) the offense for which the accused presently stands was committed. Jordan v. State, 256 S.W.3d 286, 290–91 (Tex. Crim. App. 2008); see also Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2009). “[W]hen there is no evidence to show that the offenses were committed and became final in the proper sequence, the defendant’s sentence may not be enhanced under the State’s habitual offender statutes.” Jordan, 256 S.W.3d at 291.
Here, the record shows that the second conviction was appealed, but, as the State admits, no evidence was presented to show the result of that appeal or the finality of the second conviction. As a result, appellant’s sentence could not be enhanced. We, accordingly, reverse appellant’s sentence and remand for a new punishment hearing during which the State may present evidence of the existence and finality of appellant’s second conviction. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2009) (stating if a new trial is awarded to a defendant “only on the basis of an error or errors made in the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below, except that the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial under Subsection (b), Section 2, Article 37.07, of this code”); Jordan, 256 S.W.3d at 292 (“When a reviewing court determines that the State’s evidence fails to show that an enhancement allegation is true, the Double Jeopardy Clause does not bar the use of the enhancement conviction during a retrial on punishment.”).
We, therefore, sustain appellant’s second issue.
Conclusion
We affirm appellant’s conviction, but reverse the portion of the trial court’s judgment sentencing appellant to 30 years’ imprisonment and remand for a new punishment hearing.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Frost, Jamison, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] A buccal swab is used to collect DNA. In this case, the buccal swab of Shah was used to eliminate his DNA from the other DNA evidence collected.
[2] We also note that the indictment clearly identified Shah as the complainant: “Ronald Eugene Tiller . . . while in the course of committing theft . . . cause[d] bodily injury to Shaileshkumar Shah, by striking the complainant with his hand.” And even if there were a variance, it would be immaterial. See Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2007) (concluding that prosecution’s failure to prove victim’s name exactly as alleged in indictment did not result in insufficient evidence because victim’s name was not statutory element of offense and appellant did not present evidence that he did not know whom he was accused of injuring or that he was surprised by proof at trial).
[3] Even if Shah were only “pushed” to the floor, the jury could conclude that the pushing was done with appellant’s hand and the resulting fall caused the scratching.