Opinion
Nos. 05-05-01717-CR, 05-05-01718-CR
Opinion Filed October 25, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th District Court, Dallas County, Texas, Trial Court Cause No. F-0455736-Lq and F-0473567-PQ. Affirm.
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
MEMORANDUM OPINION
Appellant Courtney Gabriel Brown was convicted on two counts of aggravated robbery and sentenced to twenty-five years' confinement on each count. In two issues, he argues (1) the evidence is factually insufficient to support his convictions because witnesses misidentified him as the robber and he provided alibi testimony, and (2) the prosecutor committed reversible error during closing argument by including facts not in evidence. We affirm.
Background
On August 31, 2004, Danny Sperling, Gerald Moyers, Felipe Aguinaga, and Coy Barker were working on a construction site in the 2700 block of Kirnwood Drive in Dallas. Around 11 a.m., a man with a gun approached the four men and demanded their money. Appellant grabbed the money, credit cards, and some other items from Sperling and Moyer before running away. Aguinaga chased after appellant, but backed off when he turned in their general direction and fired two gunshots into the air. Appellant then ran towards the Chaucer Village apartments. Felicia Dickson, a resident of the Chaucer Village apartments, heard the two gunshots while she was outside smoking marijuana and shortly thereafter saw appellant, whom she recognized, run around the corner. He asked her to hide him because he "robbed two white guys." She refused and appellant continued running through the complex. A short time later, after the men detailed the events to the police, Officer Lewis went to the Chaucer Village apartments and saw Dickson. Dickson explained what she observed and told the officer it was "Courtney." Officer Lewis then showed her a photo array, and she immediately identified appellant. A day later, she again positively identified appellant as the man she saw running through the complex with a gun and admitting to robbing two men. An officer also showed Sperling and Aguinaga photo arrays, and they immediately identified appellant; however, they also told the officer they were "pretty sure" he was the man who robbed them. Thus, the officer labeled them as "tentative identifications." Moyer was unable to positively identify appellant or anyone else as the suspect. He did, however, narrow it down to appellant and one other individual. The police were unable to locate Barker for his assistance in the investigation. Based on the three witness identifications, the police arrested appellant and charged him with two counts of aggravated robbery. At trial, appellant's girlfriend, her sister, and mother provided alibi testimony. They testified appellant was with them on the morning of August 31, 2004 helping them get ready for an overnight trip to Louisiana. They also testified they lived on Kirnwood Drive, the same street where the robbery occurred. After a jury trial, appellant was convicted on both counts and sentenced to twenty-five years' confinement. This appeal followed.Factual Sufficiency
In his first issue, appellant alleges the evidence is factually insufficient to support his convictions because the eyewitness testimony was only "tentative," and he provided reliable alibi witnesses. In reviewing the factual sufficiency of the evidence, we consider all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Waston v. State, No. PD-469-05, slip op. at 10, 2006 WL 2956272, at *7 (Tex.Crim.App. Oct. 18, 2006). Further, when determining the sufficiency of the evidence, the fact finder is the sole judge of witness credibility. Zuniga v. State, 144 S.W.3d 477, 482 (Tex.Crim.App. 2004), overruled on other grounds by Watson, No. PD-469-05, slip op. at 10, 2006 WL 2956272, at *7. The jury heard testimony from three witnesses identifying appellant as the man involved in the robbery. Although Sperling and Aguinaga made "tentative" identifications shortly after the incident, they both immediately went to appellant's picture in the photo array and both positively identified him in court as the man who robbed them at gunpoint. Both men were a hundred percent sure of their identification and stated their in-court identifications were based on their memory of the incident and not on the photo array. See Garza v. State, 82 S.W.3d 791, 793 (Tex.App.-Corpus Christi 2002, no pet.) (stating positive identification of defendant as the person who committed the offense is sufficient to support a conviction). The jury heard testimony regarding their original "tentative" identifications and were free to disbelieve their in-court identification of appellant, but instead found them to be credible witnesses. Appellant also argues Dickson's identification "is of little evidentiary value in light of her credibility" because she was smoking marijuana on the day of the incident and has a criminal history. In Vasquez v. State, the Texas Court of Criminal Appeals upheld the factual sufficiency of a conviction, noting a rational jury could believe a witness accurately identified a defendant despite being under the influence of drugs. Vasquez v. State, 67 S.W.3d 229, 237 (Tex.Crim.App. 2002). As noted above, the jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); see also Jones v. State, 687 S.W.2d 430, 432 (Tex.App.-Houston [14th Dist.] 1985, no pet.) (noting an in-court positive identification is to be given great weight). As such, they were free to disbelieve Dickson's testimony, but instead considered her a credible witness. Likewise, although appellant asserts he provided uncontradicted evidence from his alibi witnesses, the jury was free to disbelieve them. See Prevo v. State, 778 S.W.2d 520, 525-26 (Tex.App.-Corpus Christi 1989, pet. ref'd). In fact, the jury heard testimony from these witnesses that appellant was within five minutes of the robbery scene because his girlfriend's family lived on the same street. Appellant's girlfriend testified that the two of them met a few years earlier at the Chaucer Village apartments, which indicated appellant was familiar with the area. Finally, one alibi witness testified that she could not say for sure that appellant never stepped out of the home between 10 a.m. and noon. The State asked "he could've stepped out and you wouldn't have known for several minutes?" The witness answered affirmatively. Therefore, although appellant tried to discredit the evidence against him, the jury was free to believe the State's witnesses and disbelieve his inferences regarding mistaken identity. See Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999) (holding the existence of an alternative reasonable hypothesis may be relevant to, but is not determinative, in a factual sufficiency review); Davis v. State, 147 S.W.3d 554, 557 (Tex.App.-Waco 2004, no pet.) (noting jury was free to disbelieve alibi testimony). Thus, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Waston, No. PD-469-05, slip op. at 10, 2006 WL 2956272, at *7. Accordingly, we overrule appellant's first issue.Jury Argument
In his second issue, appellant alleges the prosecutor's jury argument constituted reversible error because it was based on facts not in evidence regarding identification testimony. To be permissible, the State's jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Jones v. State, 119 S.W.3d 412, 427-28 (Tex.App.-Fort Worth 2003, no pet.). During closing, the State made the following argument:[State]: . . . Most important, ladies and gentlemen, we have before you three independent witnesses who all identify this man as the man who struck a gun —
[Defense]: Your honor, I object. That's not based on the evidence.
Court: Overruled.
[State]: — to the heads of Danny and Gerry. Felipe saw him do it and Felicia saw [him] running away from the scene of the crime.Appellant alleges this argument was not supported by the evidence because only two witnesses identified appellant at the scene; therefore, the jury was left with the impression that Moyer also identified him. He claims that because the State based its entire case on identification testimony, this misstatement was highly prejudicial. Appellant's argument is without merit. Taken within the context it appears, the statement does not allege facts outside the record, but is a proper summation of evidence. Denison v. State, 651 S.W.2d 754, 761 (Tex.Crim.App. 1983) (stating the court examines challenges to jury arguments within the context they appear). Although the prosecutor incorrectly stated three people identified appellant as the man who stuck a gun to their heads, she quickly corrected herself in the following statement explaining "Felipe saw him do it and Felicia saw him running away." Further, the jury was not left with the impression that Moyer identified appellant. The jury heard from Moyer, himself, and the officers that he was unable to positively identify appellant. Accordingly, the trial court did not err in overruling appellant's objection. Id. (noting a jury argument must be extreme or manifestly improper or inject new and harmful facts into evidence to constitute reversible error). Because there is no error, we need not conduct a harm analysis. Hawkins v. State, 135 S.W.3d 72, 76 (Tex.Crim.App. 2004) ("A harm analysis is employed only when there is error, and ordinarily, error occurs only when the trial court makes a mistake."). Appellant's second issue is overruled.