AFFIRMED; Opinion Filed June 30, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01339-CR
ELIJAH FINLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F11-56527-M
MEMORANDUM OPINION
Before Justices FitzGerald, Lang, and Fillmore
Opinion by Justice Lang
The sole issue in this appeal from a jury conviction and forty-year sentence for
aggravated robbery is whether the circumstantial evidence linking Elijah Finley to the robbery is
sufficient to support the conviction. We conclude it is and affirm the trial court’s judgment.
I. FACTUAL AND PROCEDURAL CONTEXT
The robbery occurred at a clothing store in the late morning of August 31, 2006. John
Korpal, Korpal’s co-worker, and at least four other individuals were in the store when four
African-American males, armed with guns, entered the store and demanded Korpal and the
others lower their heads and lie face down on the floor. The robbers searched all individuals in
the store. Then, they directed Korpal and the others to move to the back of the store. There, the
robbers tied each of their hands with “white clear colored” zip ties that were “about 12 to 18
inches long.” One of the robbers also tried to tie Korpal’s legs together, but was unable to do so.
The robbers left moments later, taking with them Korpal’s wallet, cell phone, pager, and voltage
tester, as well as property from the others.
Finley was apprehended by police within hours of the robbery based on evidence found
during an unrelated investigation. However, neither Korpal nor any of the other victims was able
to identify Finley from a photographic line-up as one of the robbers. Finley was released. He
was arrested five years later after testing revealed his DNA on a zip tie recovered from the store
immediately after the robbery.
A three-day trial was held in September 2012. Korpal testified about the robbery and that
he called 9-1-1 after someone in the store untied his hands. After the police arrived, he gave an
oral statement to an officer and subsequently gave a written statement. Although not included in
his written statement, Korpal testified he was able to see out of the corner of his eye the face of
the robber who tried to tie his legs and noticed that this robber was shorter than the other robbers.
When he saw Finley in court immediately before trial began, he recognized Finley as that robber
and told the State’s investigator. Korpal admitted he was unable to identify Finley from the
photographic line-up he was shown following the robbery, and so stated in his written statement,
but testified he would have been able to identify Finley from a live line-up. He admitted he was
told the State had DNA evidence linking Finley to the robbery, but denied that knowledge led
him to identify Finley as one of the four robbers.
Korpal’s testimony was corroborated in large part by his co-worker, Martin Solc. Solc
testified further that he was the one who cut Korpal’s ties. Solc explained he was able to cut his
ties with scissors he found on a table at the back of the store, and once he cut his ties, he helped
Korpal.
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Dallas police officer Melissa Gregg testified she was dispatched to investigate an alleged
drug house on the afternoon of August 31, 2006. Several African-American males, including
Finley, were standing outside the house when she arrived. As she approached the group, she
smelled what she thought was marijuana coming from a trash can on the side of the house.
Gregg looked inside the trash can and found several “I.D.s, credit cards of Caucasian[s],” later
identified as the victims of the store robbery. Finding Finley and others standing outside the
house to have outstanding warrants, she arrested those men.
Jeffrey Chavers testified he regularly sold drugs at the house Gregg investigated. He was
at the house when Gregg arrived and had been there for about thirty minutes. Chavers testified
that he noticed “a whole bunch of boxes of shoes and clothes” when he walked into the house.
He asked Finley, who was already there, about the boxes, and Finley replied that “[t]hey had just
hit a lick” at a store. Chavers testified he was arrested that day along with Finley, but later
released. Chavers testified he agreed to cooperate with the State in exchange for a twenty-year
sentence in an unrelated capital murder case. He admitted that at the time of the murder he was
on probation for aggravated assault with a weapon. On cross-examination, he admitted he and
Finley were formerly friends.
Angela Fitzwater, the State’s last witness, tested swabbings from the zip ties recovered at
the store following the robbery. She testified that a partial DNA profile obtained from one of the
zip ties matched Finley’s DNA profile with a probability of 1 in 3.97 billion and the DNA profile
obtained from a second zip tie matched Finley’s DNA profile with a probability of 1 in 18.7
billion. On cross-examination, Fitzwater admitted she had no knowledge when “any of this
DNA was placed on any of the items” or “under what circumstanced it was placed.” She agreed
that “just because DNA is on an item, that does not mean that the DNA was placed on that item
where the item was found.”
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Finley did not testify and did not call any witnesses.
II. SUFFICIENCY OF THE EVIDENCE
In arguing the evidence is legally insufficient, Finley does not dispute the aggravated
robbery occurred. Instead, he contends the State presented no credible evidence connecting him
to the robbery. Specifically, he contends that although his DNA was found on two zip-ties
recovered from the scene, no evidence showed when and under what circumstances his DNA
was placed on the zip ties. Additionally, he contends neither Korpal’s nor Chavers’s testimony
was credible. Finley argues Chavers was not credible because his testimony was self-serving.
He argues Korpal’s testimony was not credible because (1) his written statement reflected he was
unable to identify any of the robbers, yet six years later he was able to identify Finley in court;
(2) his testimony was untruthful at times; and (3) he was unable to identify Solc, his co-worker,
as the one who untied his hands.
A. Standard of Review
The legal sufficiency standard of review is well known. In evaluating the sufficiency of
the evidence to support a conviction, a reviewing court considers all the evidence in the light
most favorable to the trial court’s judgment to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Temple v. State,
390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Under this standard, direct and circumstantial
evidence cases are treated equally, and circumstantial evidence alone can be sufficient to
establish guilt. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting
Hooper v. State, 214 S.W.3d 9, 13, (Tex. Crim. App. 2007)). Because the fact finder is the sole
judge of the witnesses’ credibility and the weight to be given the evidence, the reviewing court
defers to the trier of fact’s resolution of any conflicts in testimony, weight of the evidence, and
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inferences drawn. See Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010); Hooper,
214 S.W.3d at 13 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
B. Applicable Law
The State must prove beyond a reasonable doubt that the accused is the person who
committed the offense charged. See Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App.
1984); Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App.-–Texarkana 2008, no pet.). No
formalized procedure is required, and the State can meet its burden by presenting either direct or
circumstantial evidence, including DNA evidence. See Gardner v. State, 306 S.W.3d 274, 285
(Tex. Crim. App. 2009); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.-–Austin 2006, pet.
denied).
C. Application of Law to Facts
The evidence here connecting Finley to the robbery includes Korpal’s in-court
identification of Finley, Finley’s presence at the drug house where Korpal’s and the other
victims’ credit cards and identifications were found, Finley’s admission to Chavers’s that “[t]hey
had just hit a lick” at a store, and Finley’s DNA on two of the zip ties recovered at the store
following the robbery. Viewing this evidence under the light most favorable to the verdict, we
conclude the jury could have found beyond a reasonable doubt that Finley was one of the
robbers. See, e.g., Phelps v. State, 594 S.W.2d 434, 436 (Tex. Crim. App. 1980) [Panel Op.]
(“The mere possibility that a defendant’s fingerprints might have been left at a time other than
the time of the burglary does not necessarily render the evidence insufficient.”); Welch v. State,
993 S.W.2d 690, 694 (Tex. App.-–San Antonio 1999, no pet.) (in-court identification of
appellant supported conviction even though witness unable to identify appellant prior to trial);
Short v. State, 995 S.W.2d 948, 952 (Tex. App.-–Fort Worth 1999, pet. ref’d) (evidence
sufficient to support conviction despite witness’s felony conviction and inconsistent testimony);
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Allen v. State, 899 S.W.2d 296, 299-300 (Tex. App.-–Houston [14th Dist.] 1995) (evidence that
officers found crossbows, two arrows, a photograph showing money spread out on a bed, a
“Radio Shack” bank bag, and bandana’s in appellant’s apartment sufficient to show appellant
robbed Radio Shack employee using crossbow), pet. dism’d, improvidently granted, 945 S.W.2d
829 (Tex. Crim. App. 1997).
Although Finley complains about Korpal’s and Chavers’s credibility and the
conclusiveness of the DNA evidence, assessment of the witnesses’ credibility and weight to give
the evidence was for the jury. See Hooper, 214 S.W.3d at 13. The jury heard questions at trial
attacking the reliability of the DNA evidence and the credibility of Korpal and Chavers, and, by
returning a verdict of guilty, necessarily accepted, at least in part, the evidence and testimony.
We will not disturb that finding. See Umstead v. State, ___ S.W.3d ____, 2014 WL 358368 *4
(Tex. App.-–Eastland 2014, pet. ref’d) (rejecting appellant’s argument that his identification as
the murderer by three witnesses was not credible because credibility was issue for jury to decide
and jury chose to accept, at least in part, witnesses’ testimony); Zuniga v. State, 393 S.W.3d 404,
413 n.2 (Tex. App.-–San Antonio 2012, pet ref’d) (rejecting appellant’s argument that witness’s
testimony showing appellant committed murder was “divorced from reality” and deferring to
jury’s determination of witness credibility and weight of evidence). We resolve Finley’s sole
issue against him.
III. CONCLUSION
We affirm the trial court’s judgment.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
121339F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ELIJAH ZAVIER FINLEY, Appellant On Appeal from the 194th Judicial District
Court, Dallas County, Texas
No. 05-12-01339-CR V. Trial Court Cause No. F11-56527-M.
Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee FitzGerald and Fillmore participating.
Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.
Judgment entered this 30th day of June, 2014.
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