No. 05-02-00885-CR.
Opinion Filed January 13, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F01-27472-KJ. AFFIRMED.
Before Chief Justice THOMAS and Justices MOSELEY and LANG.
Justice Ed Kinkeade was a member of the submissions panel before his retirement from the Court on November 18, 2002. Chief Justice Thomas has reviewed the briefs and the record in this case.
Opinion By Justice LANG
Clyde Lee Burns appeals his conviction for robbery. Appellant waived a jury trial and pleaded not guilty. After finding appellant guilty, the trial court found two enhancement paragraphs true and sentenced appellant to thirty-five years' confinement. In a single point of error, appellant contends the evidence is factually insufficient to sustain the conviction. We affirm the trial court's judgment.
background
At 11:45 p.m. on May 17, 2001, Dannie Dement, the complainant, was robbed of his wallet and its contents. Dement testified he was parked in front of a residence on Pueblo Street in Garland while his wife was inside picking up wedding cakes for their fifth wedding anniversary. Dement's mother-in-law and three children were inside his vehicle while Dement stood at the rear of the vehicle rearranging items to make room for the cakes. Appellant approached him and said his car had broken down around the corner and he needed help. Dement told appellant he did not have jumper cables and could not help him. Appellant started to walk away, then turned toward Dement and said, "I have a gun in the bag, give me your wallet." Dement testified he did not see a gun, but appellant had his right hand in a white plastic bag. Dement told appellant he only had six dollars. Appellant took the money and wallet, then walked across the yard between two houses. When Dement walked toward the front door of the residence, appellant came from between the houses and stopped Dement. Appellant said, "I can't believe that's all you have is just six bucks," then pushed his hand into Dement's front pants pockets. When appellant realized Dement did not have anything else, appellant walked away and said, "Now you can go ahead and call the cops." Dement went inside the residence and called the police. Dement testified appellant stood close to him when appellant first approached him and again when appellant stopped him on the sidewalk in front of the residence. Dement saw a tattoo of Greek lettering across appellant's chest because appellant was only wearing gray sweat pants and blue-colored tennis shoes at the time. Dement did not see a scar on appellant's stomach because appellant had his hand inside a white bag held at his waist area. Three months after the robbery, Dement viewed a "pictorial" lineup that contained six photographs on one page. He picked a photograph of appellant as the person who robbed him. At trial, Dement identified appellant as the person who robbed him, and identified a tattoo on appellant's chest and appellant's voice as those of the person who robbed him. Appellant testified he was working as a machinist for a tool company at the time of the robbery, and he would not have been out at midnight. Appellant testified he had never seen Dement before, was not aware the robbery took place down the street from where appellant worked, and did not know anything about the robbery because he was not involved. Appellant testified he would have been home at the time of the robbery because he had to go to work at 5:00 a.m. the next day, which would have been a Friday payday. Appellant claimed the reason Dement identified his tattoo was because police photographed his tattoo when he was arrested and showed them to Dement. Appellant further testified he had several previous felony convictions. applicable law
In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The trier of fact judges the credibility of the witnesses and the weight to be given their testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). The State was required to prove beyond a reasonable doubt that appellant, while in the course of committing theft and with intent to obtain and maintain control of the property, intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death. See Tex. Pen. Code Ann. § 29.02 (Vernon 1994). discussion
Appellant contends the evidence is factually insufficient because the complainant's testimony was unreliable. Appellant argues nothing links him to the offense except for the complainant's testimony, the complainant could not have seen appellant because there was little lighting in the area, and appellant was employed and had no motive to commit the offense. The State responds the evidence is factually sufficient because the complainant was face-to-face with appellant at the time of the offense, he identified tattoos that appeared on appellant's body, and he identified appellant from a photographic lineup and in court. We agree with the State. Dement identified appellant from a photographic lineup as the person who robbed him. At trial, Dement again identified appellant as the person who robbed him, and testified he recognized appellant's voice and the tattoo on appellant's chest. Appellant testified he was not involved in the robbery, had never seen Dement before, and was home because he had to go to work early the next morning. When there is conflicting testimony, the evaluation of witness credibility and demeanor is a job best suited to the fact finder. See Johnson, 23 S.W.3d at 9; see also Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim. App. 1997). We may not disagree with the fact finder's determinations unless the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice. See Johnson, 23 S.W.3d at 9. Having viewed all of the evidence under the appropriate standard, we conclude it is factually sufficient to support the conviction. See Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.