Opinion issued February 18, 2016
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-14-01032-CR, 01-14-01033-CR
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WILLIAM MONTERIAL JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case Nos. 1387546 & 1387547
MEMORANDUM OPINION
Appellant, William Monterial Jones, was charged with the felony offenses of
aggravated robbery and felon in possession of a weapon.1 Appellant pleaded true
1
See TEX. PENAL CODE ANN. §§ 29.02(a)(1), 29.03(a)(2), 46.04(a)(1) (West 2015).
to the enhancement allegations in both cases. Pursuant to a plea bargain, the trial
court sentenced appellant to forty years’ confinement in each case, with the
sentences to run concurrently. In two points of error, appellant contends that (1)
the evidence was legally insufficient to support a guilty verdict because the State
did not prove the identity of the perpetrator beyond a reasonable doubt, and (2) the
trial court erred in admitting the opinion testimony of an investigator regarding
appellant’s truthfulness. We affirm.
Background
On the evening of September 23, 2012, Mohammad Aman, the complainant,
and Nagy Aly were working at Mo’s Food Mart when the store was robbed.
Aman, the cashier, testified that a tall black male entered the convenience store,
jumped onto the front counter behind the protective glass, shot Aman in the arm,
and told him, “Okay. Now you’re going to give me the money.” Aman testified
that the man was wearing a do-rag over his face, a t-shirt, and dark-colored pants.
As Aman began to open the cash register, Aly, who had been working in the back
of the store, approached the counter with his gun and told the assailant to drop his
weapon. Aman testified that Aly shot the robber as he fled the store. Paramedics
transported Aman to the hospital where a police officer took his statement. The
officer then accompanied Aman to another hospital room to see if he could identify
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the man there as the robber. Aman told the officer that the man in the room was
not the robber.
On the night of the robbery, Aly, the night stocker, heard someone near the
cash register demand money from Aman. When Aly approached the front of the
store, he saw a man behind the register with Aman. The robber saw Aly’s gun and
fired a shot at him. Aly then fired six shots at the man as he fled the store. Aly
testified that as he was standing at the front door, he saw the robber run into the
store’s parking lot, fall down, and drop a hat and mask. Aly identified the hat and
do-rag shown in State’s Exhibits 15 and 16 as the hat and mask he saw the robber
drop while fleeing. Aly did not identify the man in the hospital room as the robber.
Deputy Langston Smart, with the Harris County Constable’s Office, was
dispatched to the convenience store following the robbery. After securing the
scene, Deputy Smart collected a baseball cap and do-rag found in the parking lot
outside the store. Deputy Smart also interviewed Aman and Aly who told him that
the perpetrator was a thin, black male who had worn a do-rag over his face.
Although the store had security cameras, they were not working on the night of the
robbery.
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Investigator Zachary Long, with the Robbery Division of the Harris County
Sheriff’s Office, was assigned as the lead investigator in the case.2 Investigator
Long went to Northwest Medical Center and interviewed Aman who told him that
the robber, a black male, wore dark clothing, a ball cap, and a black cloth covering
his face. Investigator Long then interviewed appellant who had been admitted with
gunshot wounds to the same hospital. Appellant told him that he had been driving
his car, a white Crown Victoria, when another vehicle ran him off the road at
Airtex Boulevard near Interstate 45, and that the occupants shot at him while he
ran away. He also told Investigator Long that he subsequently returned to his car
and drove to his girlfriend’s house.
Investigator Long testified that, based on his years of experience, appellant’s
version of events, and the fact that appellant arrived at the hospital dressed only in
a t-shirt, white boxer shorts, and socks, he did not find appellant’s statement
credible. Investigator Long testified that he took Aman into appellant’s hospital
room but that Aman told him appellant was not the robber. Investigator Long
stated that Aly likewise did not identify appellant as the robber. Investigator Long
also interviewed Dominique Sampson, the person who brought appellant to the
hospital. Sampson told Investigator Long that he had received a call from a friend
asking him to pick up a friend who had been shot, and that he picked appellant up
2
At the time of trial, Investigator Long had been in law enforcement for twenty-six
years.
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at a Popeye’s Chicken restaurant off of Airtex and took him to the hospital.
According to Sampson, appellant did not say anything during the ride to the
hospital and only moaned. Investigator Long learned that a 1995 white Crown
Victoria was later found abandoned in a moving lane of traffic near Airtex.
Lieutenant Anthony McConnell, with the Crime Scene Unit of the Harris
County Sheriff’s Office, conducted a gunshot residue test on appellant and
obtained a voluntary buccal swab from him for purposes of DNA analysis. The
results of the GSR test were negative.
Christy Smejkal, a DNA analyst with the Harris County Institute of Forensic
Sciences, compared the DNA profiles from the baseball cap and the do-rag
discovered in the store’s parking lot to appellant’s DNA profile obtained from his
buccal swab. She testified that the DNA results from the do-rag revealed a mixture
of DNA from two individuals, and that appellant was the major contributor.
Smejkal further testified that the DNA profile from the baseball cap was consistent
with appellant’s DNA profile.
The jury ultimately found appellant guilty of the charged offenses.
Appellant pleaded true to two felony enhancement allegations in each case.3
3
In cause number 1387546 (aggravated robbery), appellant pleaded true to
allegations that he had been previously convicted of robbery in 2003 and felon in
possession of a weapon in 2010. In cause number 1387547 (felon in possession of
a weapon), appellant pleaded true to allegations that he had been previously
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Pursuant to a plea bargain, the trial court sentenced appellant to forty years’
confinement in each case, with the sentences to run concurrently. This appeal
followed.
Sufficiency of the Evidence
In his first point of error, appellant contends that the evidence identifying
him as the perpetrator was legally insufficient to support his convictions for
aggravated robbery and felon in possession of a weapon.
A. Standard of Review and Applicable Law
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). The jurors are the exclusive judges of the facts and the weight to be
given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App.
2008). A jury, as the sole judge of credibility, may accept one version of the facts
and reject another, and it may reject any part of a witness’s testimony. See Sharp
v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jones v. State, 458 S.W.3d
convicted of burglary of a habitation in 2000 and felon in possession of a weapon
in 2010.
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625, 630 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (noting jury can choose
to disbelieve witness even when witness’s testimony is uncontradicted) (internal
citation omitted).
We may not re-evaluate the weight and credibility of the evidence or
substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the
jury’s credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.
Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the
verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record
supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and therefore defer to that determination.”).
“[T]he identity of the alleged perpetrator may be proven by circumstantial
evidence.” Orellana v. State, 381 S.W.3d 645, 653 (Tex. App.—San Antonio
2012, pet. ref’d). The State may also establish identity by inferences. See Jones,
458 S.W.3d at 630 (citing Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—
Austin 2000, pet. ref’d)). Circumstantial evidence is as probative as direct evidence
in establishing guilt, and circumstantial evidence alone can be sufficient to
establish guilt. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011)
(quoting Clayton, 235 S.W.3d at 778). “Each fact need not point directly and
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independently to the guilt of the appellant, as long as the cumulative force of all
the incriminating circumstances is sufficient to support the conviction.” Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
A person commits the offense of robbery “if, in the course of committing
theft . . . and with intent to obtain or maintain control of the property, he . . .
intentionally, knowingly, or recklessly causes bodily injury to another . . . .” TEX.
PENAL CODE ANN. § 29.02(a)(1) (West 2011). A person commits the offense of
aggravated robbery “if he commits robbery . . . and he . . . uses or exhibits a deadly
weapon . . . .” Id. § 29.03(a)(2). “A person who has been convicted of a felony
commits an offense if he possesses a firearm . . . after conviction and before the
fifth anniversary of the person’s release from confinement following conviction of
the felony . . . .” Id. § 46.04 (West 2011).
B. Analysis
In his first point of error, appellant contends that the evidence is legally
insufficient to support his convictions. Specifically, he argues that the State failed
to prove beyond a reasonable doubt that he was the perpetrator because (1) no
witness identified him; (2) the DNA evidence from the baseball cap and do-rag
was weak because Aman and Aly’s testimony did not connect those items to
appellant; and (3) the blood sample recovered from the crime scene excluded
appellant, no fingerprints were taken, and the GSR test results were negative.
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Here, Aman testified that the robber was wearing a do-rag over his face
when he jumped over the counter, shot Aman in the arm, and demanded money.
Aly testified that, after he fired his gun at the assailant, he stood at the front door as
he watched the assailant run into the store’s parking lot, fall down, and drop a hat
and mask in the parking lot. When shown State’s Exhibits 15 and 16, Aly
identified the hat and do-rag shown in the photographs as the hat and mask he saw
the robber drop. Smejkal testified that the DNA test results showed that appellant
was the major contributor of the DNA found on the do-rag, and that appellant’s
DNA profile was consistent with the DNA found on the baseball cap. Thus, the
State presented evidence connecting appellant to the discarded items found in the
store’s parking lot following the robbery. Moreover, the defense offered no
alternative explanation as to how appellant’s DNA ended up on the do-rag and
baseball cap found at the crime scene. See Jones, 458 S.W.3d at 631–32 (finding
evidence identifying defendant as robber sufficient where, among other things, no
other testimony established connection between defendant and complainant to
explain how complainant’s DNA profile ended up on clothing that also contained
defendant’s DNA profile).
In addition to the DNA evidence, the State presented other circumstantial
evidence supporting the jury’s verdicts. Aly testified that he shot at the assailant
six times while the assailant fled the store. Shortly after the robbery, appellant
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arrived at a nearby hospital with two gunshot wounds. According to Investigator
Long, appellant told him that, after he was carjacked on Airtex Boulevard, he
returned to his car and drove to his girlfriend’s house. However, the investigation
subsequently revealed that the car was towed as an abandoned vehicle from a
moving lane of traffic near Airtex. Sampson also told Investigator Long that he
picked appellant up at a Popeye’s Chicken off of Airtex and took him to the
hospital. See Curry, 30 S.W.3d at 406 (noting that reviewing courts resolve
inconsistencies in evidence in favor of verdict).
In light of the DNA evidence, appellant’s gunshot wounds, and the
discovery of appellant’s abandoned car, it was reasonable for the jury to infer that
appellant committed the charged offenses. Viewing the evidence in the light most
favorable to the verdict, we hold that the State presented sufficient evidence for a
reasonable fact finder to conclude beyond a reasonable doubt that appellant was
the armed robber of Mo’s Food Mart. We overrule appellant’s first point of error.
Admission of Testimony
In his second point of error, appellant contends that the trial court abused its
discretion in allowing Investigator Long’s opinion testimony regarding appellant’s
truthfulness over trial counsel’s objection.
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A. Standard of Review and Applicable Law
We review a trial court’s ruling on the admission or exclusion of evidence
for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.
2011). A trial court abuses its discretion only if its decision “lies outside the zone
of reasonable disagreement.” Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim.
App. 2010); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
We consider the ruling in light of what was before the trial court at the time the
ruling was made and uphold the trial court’s decision if it lies within the zone of
reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App.
2009).
A lay witness may testify in the form of an opinion provided that it is
rationally based on the witness’s perception and helpful to clearly understanding
the witness’s testimony or to determining a fact in issue. TEX. R. EVID. 701. Case
law recognizes that personal knowledge may derive from experience. See Ex parte
Nailor, 149 S.W.3d 125, 134 n.41 (Tex. Crim. App. 2004). Thus, a police officer
may provide opinion testimony if it is based on his personal observations, training,
and experience. See Fairow v. State, 943 S.W.2d 895, 898–99 (Tex. Crim. App.
1997); Austin v. State, 794 S.W.2d 408, 410–11 (Tex. App.—Austin, pet. ref’d)
(police officer permitted to testify that, based on his personal experience, it was his
opinion that “Swedish deep muscle rub” was a code for prostitution); Reece v.
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State, 878 S.W.2d 320, 325 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (based
on training and experience, police officer may testify under Rule 701 that
defendant’s actions are consistent with someone selling cocaine); Williams v. State,
826 S.W.2d 783, 785 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (using
past experience, police officer was permitted to testify, as either lay witness or
expert, that he interpreted defendant’s actions to be drug transaction). An opinion
is not inadmissible merely because it embraces an ultimate issue. TEX. R. EVID.
704. However, no witness, expert or lay, is competent to voice an opinion about
the guilt or innocence of a defendant. Boyde v. State, 513 S.W.2d 588, 590 (Tex.
Crim. App. 1974); DeLeon v. State, 322 S.W.3d 375, 383 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d) (prosecutor’s questions to detective asking who
committed offenses and where last offense occurred were improper).
B. Analysis
When the State questioned Investigator Long about his conversation with
appellant in the hospital, Investigator Long testified as follows:
Q. All right. So, once you received this information of a second
robbery, what did you do?
A. Based on the information that [appellant] described to me that had
occurred and his actions thereafter, it lead [sic] me to believe that he
could have been a possible suspect in the robbery of the Mo’s Grocery
Store.
Q. And what made you determine —make that determination?
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[Defense counsel]: Object to speculation, Your Honor.
[The Court]: Overruled.
Q. What made you make that determination?
A. Specifically based on years of experience, the fact that [appellant]
was clothed only in a T-shirt, white boxer shorts, and socks. That’s
how he arrived to the hospital. He had no additional clothing. His
statement to me I found unbelievable, untruthful—
[Defense counsel]: I object to that, Your Honor, the officer’s
opinion as to whether it was a truthful statement or not.
[The Court]: Overruled.
Q. Proceed.
A. When somebody is a victim of a crime and they state to you that
somebody fired a gun at them and shot them twice and your action is
to then go back, get in your car and drive home, my question would
be: Why didn’t you call the police? Why didn’t you call for an
ambulance? There is a hospital within approximately four miles of
where this occurred. There are businesses that are open that you
could drive to and ask for someone to call 911, somebody you know,
call the police, call for an ambulance for me. The fact that he drove
home and had his girlfriend call a friend to pick him up and take him
to the hospital, it didn’t sound credible.
Appellant contends that the trial court erred in permitting Investigator Long
to testify regarding appellant’s truthfulness. He argues that the testimony, which
was not based on Investigator Long’s personal knowledge, was improper and
should have been excluded. Appellant’s argument is without merit. Investigator
Long did not testify that he believed appellant was guilty of the charged offenses,
or that appellant would be untruthful if called to testify. Rather, he testified that,
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based on his twenty-six years of experience as a police officer, appellant’s
explanation of how he got shot did not seem credible because it would be unusual
for a victim of a carjacking to act as appellant did (i.e., driving home instead of
going to the nearby hospital, not calling police or ambulance or asking someone to
call 911, arriving at the hospital in t-shirt, boxer shorts, and socks). See Reece, 878
S.W.2d at 325 (based on training and experience, police officer may testify that
defendant’s actions are consistent with someone selling cocaine). The trial court
did not abuse its discretion in allowing Investigator Long’s testimony. We
overrule appellant’s second point of error.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Justices Higley, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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