Opinion
No. 05-16-00094-CR
05-31-2017
DAVID FIFE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court Collin County, Texas
Trial Court Cause No. 219-80169-2015
MEMORANDUM OPINION
Before Justices Bridges, Evans, and Schenck
Opinion by Justice Evans
David Fife appeals his conviction for aggravated robbery. A jury found appellant guilty of the offense and the trial court assessed punishment at 75 years' imprisonment. Appellant raises three issues on appeal: (1) the judgment should be modified to accurately reflect the name of the presiding judge; (2) the trial court abused its discretion by sentencing him to 75 years' imprisonment; and (3) the evidence is insufficient to support the conviction. We sustain the first issue and modify the judgment as requested. We overrule the second and third issues. We affirm the judgment as modified.
BACKGROUND
In November 2014, Melanie Ortiz worked at a Metro PCS store in Plano, Texas where she was a manager and sales associate. At that time, she had been working at the store for about two years. On November 25, Ortiz was training a new co-worker, Nada, when a man came in wearing sunglasses, a hat, and a white towel over his head. A black towel covered his mouth. As the man walked towards Ortiz and her co-worker, he lifted his shirt revealing two black handguns in his waist. The man then pulled out one of the guns, pointed it towards Ortiz and Nada and asked them to give him all the store's money. He also asked for all the memory cards. Ortiz gave the man $317 in cash and five packets of Nashua brand memory cards — two packets of eight gigabyte cards and three packets of four gigabyte cards. As the man walked out of the store with the money and memory cards, he threatened to come back and kill them if they called the police.
Ortiz testified that she recognized the man's voice as that of someone who was a regular customer. The man worked at the Dollar Tree store located around the corner and would come into the store before he began his shift. Ortiz also recognized him based upon his height, slimness, and skin color. In court, Ortiz identified appellant as the robber. Ortiz testified that she noticed appellant coming into the store starting in September. He always had questions about his phone and sometimes came in two or three times a week. Ortiz testified that appellant usually wanted to be helped by former employee, Rudy Travizo, but that she also waited on appellant and helped him with questions about his phone. Ortiz recalled one instance where appellant asked about more internal space for his music. She recommended a memory card but appellant did not purchase one that day. She recalled another instance where appellant needed help with making a call overseas. Ortiz testified that she told the responding officers that the robber was a regular customer that worked at the dollar store and usually rode a white moped. Both the 911 call made by Ortiz and the video surveillance footage from the store were admitted into evidence and published to the jury.
Andrea Rosas, the store manager for the Dollar Tree, testified that appellant worked for her for about two and half months prior to November 25, 2014. Appellant was already working at the store when Rosas started in August but he left in mid-October. When she was contacted by the police about whether she had an employee that drove a white moped, she gave them appellant's name and address.
Rudy Trevizo testified that he worked for Metro PCS for a year until the end of October 2014 when he got fired. The police called him shortly after the robbery and asked him about a customer that Ortiz told them about who she believed was the robber. Based upon the description Ortiz had given the police, i.e., that the man was tall and thin and she recognized his voice, Trevizo told police that it could be the man who worked at the Dollar Tree. Trevizo could not recall if the police told him about the white moped or he told the police about the moped. Trevizo identified appellant in the courtroom and testified that appellant came into the store regularly, sometimes several times a week. Appellant had a distinctive voice due to his accent and Trevizo could recognize him by his voice. Trevizo testified that the last time appellant was in the store was in early October.
Jae Joo owned two Metro PCS stores in November 2014, including Advanced Wireless, the Metro PCS store that was robbed. He testified that his stores sold two different brands of four and eight gigabyte memory cards — ADT and Nashua. He bought the Nashua cards directly from a vendor in Carrollton called Kayla International. On October 10, 2014, Joo bought forty Nashua memory cards — twenty four-gigabyte cards and twenty eight-gigabyte cards. Joo also testified that Ortiz called him after the robbery and told him that she recognized the voice and stature of the robber, that he was one of the store's customers, and that he used to work at the dollar store next to the Metro PCS store. Joo also remembered Ortiz telling him something about the customer driving a white moped.
In 2014, Jason Yun distributed Nashua memory cards through Kayla International for a period of six to eight months. He sold them to small retail stores, including Metro PCS stores. He testified that he was the exclusive distributor for Nashua memory cards in the DFW area and did not know of anyone else other than him that distributed the Nashua memory card. In April, 2014, he bought 1800 Nashua cards — 1200 four-gigabyte cards and 600 eight-gigabyte cards. However, from May until the offense date, November 25, he only sold a total of 226 of those cards to cell phone stores in the DFW area — ninety two four-gigabyte cards, and one hundred thirty four eight-gigabyte cards.
Detective Scott Epperson responded to the robbery call and spoke with Ortiz at the store. Ortiz told him that the person who robbed the store had a very distinctive voice which she recognized and was 90% sure that it was a customer who had been at the store before. Ortiz could not give the officer the person's name but gave him information about Rudy. Both Ortiz and Rudy were sure that the suspect was an ex-employee at the Dollar Tree store. The next day, Ortiz told the detective that once she had time to think about it, she was now 100% sure that it was the ex-customer who robbed the store. After talking with the manager of the Dollar Tree store, the detective obtained an arrest warrant for appellant. Appellant was located at his girlfriend's apartment and arrested. Sharon Cruz, appellant's girlfriend was at the apartment when appellant was arrested. During a search of the apartment, officers found an unopened packet containing a Nashua eight-gigabyte memory card. Cruz told the officers that the card was hers and that she had bought it two years ago. No guns or ammunition were found in the apartment.
Sharon Cruz testified on behalf of the defense. At the time of the offense, she and appellant had been dating for about a year and a half. Cruz testified that appellant usually stayed at her apartment in Dallas during the week from Monday through Saturday but went back to his father's house on Sundays so that he could take care of things around the house for his father. Cruz testified that appellant spent the entire day with her on November 25 and that they did not go into Plano until the Sunday after Thanksgiving. She also testified that she bought the Nashua memory card found during the search but could not remember exactly when or where, stating at one point that she thought it was eight or nine months prior to the search. She denied that she told the officers she bought the memory card two years ago.
Cruz also testified that her car had been stolen in August 2014, three months before the robbery. She testified that appellant's cell phone was in the car when it was stolen. Although appellant had ordered a new phone on the internet, he had not yet received it by the time he was arrested. Appellant used Cruz's phone from August until his arrest in November. Cruz testified that appellant bought the phone that was stolen at the Metro PCS store located on Spring Valley and Coit in Dallas. However, the service contract and receipt introduced into evidence by the defense showed that appellant bought the phone in February 2014 at Jae Joo's Metro PCS Advance Wireless store in Plano. Cruz also testified that appellant worked at the Dollar Tree store in Plano for two and a half months from August to October.
During the punishment hearing, appellant pled true to the enhancement paragraphs alleging prior convictions for a 1997 burglary and four 2003 aggravated robbery convictions. Appellant stipulated to the judgments admitted into evidence showing these convictions. When appellant committed the robbery in this case, appellant had been out of prison and on parole for about twenty months. Evidence was also presented showing that appellant had committed an aggravated assault while he was in custody in the Collin County jail awaiting trial in this case. Appellant testified during the punishment hearing and explained the circumstances leading up to the new aggravated assault offense.
ANALYSIS
I. Modification of Judgment
In his first issue, appellant requests that we modify the judgment to accurately reflect the name of the judge who presided over the trial. The State agrees that the judgment should be modified. This Court has the authority to modify an incorrect judgment to correct a clerical error when the evidence necessary to correct the judgment appears in the record. See Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). The judgment shows that the presiding judge was the Honorable Scott J. Becker. However, the reporter's record shows that the Honorable Webb Biard presided over the trial of this case. We sustain appellant's first issue.
II. Punishment Assessed
In his second issue, appellant contends that the trial court abused its discretion by sentencing him to 75 years' imprisonment because this sentence "violates the objectives of the system of prohibitions, penalties, and correctional measures in the Penal Code" and "does not meet the objectives of the prevention of oppressive treatment of a person convicted of an offense." Appellant also claims that the trial court failed to take into account certain mitigating evidence and failed to consider the full range of punishment. The State argues that appellant has not preserved his complaints because he failed to raise an objection at trial regarding the sentence imposed. Alternatively, the State argues that the trial court did not abuse its discretion in sentencing appellant and there is no indication in the record that the trial court did not consider the full range of punishment.
A defendant must make a timely objection or motion in the trial court to preserve alleged error relating to excessive punishment. See TEX. R. APP. P. 33.1(a)(1); Casteneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.); Garza v. State, No. 05-11-01626-CR, 2013 WL 1683612, at *2 (Tex. App.—Dallas April 18, 2013, no pet.) (mem. op., not designated for publication). Appellant did not complain about the sentence either at the time it was imposed or in his motion for new trial. As a result, appellant has not preserved the issue for our review.
We now consider appellant's argument that the trial court failed to consider the full range of punishment. As noted, appellant failed to raise any objection to the punishment assessed at trial or in his motion for new trial. However, "The unfettered right to be sentenced by a sentencing judge who properly considers the entire range of punishment is a substantive right necessary to effect the proper functioning of our criminal justice system." Grado v. State, 445 S.W.3d 736, 741 (Tex. Crim. App. 2014). Absent an effective waiver of that right, the issue is not procedurally defaulted and may be raised for the first time on appeal. Id. at 743.
A trial court's arbitrary refusal to consider the entire range of punishment constitutes a denial of due process. Id. at 739. Due process requires the trial court to conduct itself in a neutral and detached manner. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli, 411 U.S. 778, 78 (1973)). Absent a clear showing of bias, a trial court's actions will be presumed to have been correct. Id. The following factors are indications that the trial court was not biased: (1) the trial court did not make any comments suggesting it considered less than the full punishment range; (2) the trial court heard extensive evidence before assessing punishment; and (3) the record contains explicit evidence the trial court considered the full range of punishment. Id. at 645; Austin v. State, No. 05-16-00531-CR, 2017 WL 1245420, at *2 (Tex. App.—Dallas April 5, 2017, no pet. h.) (mem. op., not designated for publication).
In this case, a jury found appellant guilty of robbing a store by gunpoint in the middle of the day. The evidence showed that appellant had two guns on him and threatened to kill the two clerks if they called the police. The trial court then heard punishment evidence from both parties and heard appellant's own testimony. No comments were made by the trial before or during the presentation of the evidence. Appellant pled true to a prior conviction for burglary and four prior convictions for aggravated robbery. When he committed the four prior aggravated robberies, he was out on parole for his burglary conviction. When he committed the instant offense, he had only been out of prison for twenty months and was still on parole for the four prior aggravated robberies. In addition, a video was admitted showing appellant committing an aggravated assault against another inmate in the jail by beating him about the head and torso with the wooden handle of a mop. Although appellant testified and admitted to the new aggravated assault, he blamed the incident on the fact that the jail personnel had not given him his Prozac, explaining that he had had a history of psychiatric problems and had been taking Prozac for many years, including when he was in prison. According to appellant, the Prozac would have prevented him from reacting badly to the inmate's threats about appellant's failure to put money in his commissary account. However, as he admitted on cross-examination, he had been on Prozac at the time he committed the four aggravated robberies.
Further, there is explicit evidence in the record that the trial court considered the full range of punishment in assessing the sentence. At the beginning of the punishment hearing when appellant entered his plea of true to the enhancement allegations, the trial court questioned appellant on whether he understood that range of punishment would change pursuant to his plea and required appellant to state what he understood the punishment range to be. After appellant correctly stated that the punishment range was "25 to life," the trial court told appellant that he was correct and confirmed that appellant still wanted to enter a plea of true, that his plea was voluntary, and that appellant was competent to enter such a plea. After the evidence was presented and the closing arguments were made, the trial court said that it would take "this matter under advisement for a short time" and took a short recess. The fact that appellant presented mitigating evidence, does not, in and of itself, support his assertion that "It is clear that the trial court did not truly consider the full-range of punishment in assessing punishment." See Carpenter v. State, 783 S.W.2d 232, 233 (Tex. App.—Dallas 1989, no pet.).
On this record, we conclude that appellant has failed to demonstrate that the trial court arbitrarily refused to consider the full range of punishment before it assessed punishment of seventy-five years' imprisonment. We overrule appellant's second issue.
III. Sufficiency of the Evidence.
Appellant claims that the evidence is insufficient to support the conviction because the State failed to prove that appellant was the man who committed the robbery since the voice identification by Ortiz was unreliable.
In reviewing the sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We assume the fact finder resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the trier of fact's determinations of witness credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899.
The testimony of a single eyewitness alone can be sufficient to support a conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971). Voice identification is considered direct evidence and is sufficient in and of itself to prove identity. McInturf v. State, 544 S.W.2d 417, 419 (Tex. Crim. App. 1976); Williams v. State, 747 S.W.2d 812, 813 (Tex. App.—Dallas 1986, no pet.). Here, Ortiz testified that she recognized the robber's voice as that of someone who was a regular weekly customer who used to work at the dollar store nearby. She told the police that he usually rode a white moped. Ortiz also recognized him based upon his height, slimness, and skin color. The stature of the man seen in the video surveillance of the robbery admitted into evidence was consistent with the physical description given by Ortiz to the police. In court, Ortiz identified appellant as the robber. Further, former employee, Rudy identified appellant to the police as the man described by Ortiz based on his distinctive voice, physical description, the fact that he worked at the dollar store, and the fact that he rode a moped. Rudy also identified appellant in court. Appellant's name was also given to police by the manager of the dollar store when asked about an employee who drove a white moped. In addition, an unopened package containing a memory card matching the brand and size as those stolen from the store was found in appellant's girlfriend's apartment, the apartment appellant stayed at for six out seven days of the week. Defense counsel's attempts to impeach Ortiz's voice identification by questioning how much contact Ortiz actually had with appellant as a customer, or inconsistencies between the 911 call and statements she made to the police does not render the evidence insufficient to find that appellant committed the offense. Aside from the fact that Ortiz never wavered in her testimony at trial regarding the fact that she knew who the robber was based upon his distinctive voice and his stature, the jury is the sole judge of a witness's credibility, and it apparently found Ortiz to be credible.
Under these facts, we hold that the evidence, when viewed in the light most favorable to the judgment, was sufficient for the jury to find beyond a reasonable doubt that appellant was the person who robbed the Metro PCS store. Appellant's third issue is overruled.
CONCLUSION
We modify the trial court's judgment to reflect the Honorable Webb Biard as Presiding Judge. As modified we affirm.
/David W. Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160094F.U05
JUDGMENT
On Appeal from the 219th Judicial District Court, Collin County, Texas
Trial Court Cause No. 219-80169-2015.
Opinion delivered by Justice Evans, Justices Bridges and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
To reflect the Honorable Webb Biard as the presiding judge. As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 31st day of May, 2017.