Johnny Frank Moore v. State ( 2008 )

Affirmed and Memorandum Opinion filed October 7, 2008

Affirmed and Memorandum Opinion filed October 7, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00902-CR

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JOHNNY FRANK MOORE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 1076691

M E M O R A N D U M   O P I N I O N

A jury found appellant, Johnny Frank Moore, guilty of aggravated robbery.  The trial court assessed punishment of fifteen years= confinement.  In two issues, appellant contends the evidence is legally and factually insufficient to support his conviction.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  Tex. R. App. P. 47.4.

I. Background

At approximately 4:30 a.m. on July 15, 2006, complainant, Arselia Rivera, was waiting at a bus stop on her way to work when a slender man, wearing a greenish shirt, sat down next to her.  Shortly thereafter, the man grabbed complainant, brandished a pocketknife, and placed the knife against complainant=s body.  The man took complainant=s purse and searched her for other valuables before leaving. Complainant=s purse contained a black Nokia cellular phone, a black clock, forty dollars, a small coin purse, and other personal items.  Further, although complainant testified that the knife was Asmall,@ with a three to four inch blade, during the incident, she was frightened and feared for her life.

After her assailant fled, complainant ran to a nearby convenience store and contacted the police and her sister, Amalia Rivera.  Approximately thirty minutes later, Amalia met complainant at the convenience store, and they left to look for the assailant.  The sisters discovered appellant eating while sitting under a nearby freeway overpass.  He was wearing a white shirt. Complainant identified appellant as her assailant and notified the police regarding his location. 

Subsequently, Officer Gilbert Garcia, Jr. arrested appellant.  In a search incident to arrest, Officer Garcia discovered a Nokia cellular phone battery in appellant=s pocket, which complainant and Amalia identified as the battery from complainant=s cellular phone.  After the police took appellant into custody, the police, complainant, and Amalia searched the area underneath the freeway overpass.  Complainant and Amalia saw a suitcase in the area where they earlier discovered appellant eating. They discovered a green shirt inside the a suitcase.  However, they did not find the knife allegedly used during the robbery or any items other than the Nokia battery.

II. Analysis

In two issues, appellant contends the evidence is legally and factually insufficient to support the jury=s verdict.  Specifically, appellant contends (1) the State=s evidence of identity is legally insufficient to prove appellant committed the crime charged and (2) the State=s evidence is factually insufficient to prove appellant used or exhibited a deadly weapon. We disagree.

A.        Standard of Review

A person commits the offense of aggravated robbery if in the course of committing theft and with intent to obtain or maintain control of property he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon.  See Tex. Pen. Code Ann. ' 29.03 (Vernon 2003).

In reviewing legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  We ensure only that the jury reached a rational decision and do not act as a second arbiter of the weight and credibility of testimony.  Muniz v. State, 851 S.W.2d 246 (Tex. Crim. App. 1993).  The jury  is the sole judge of the credibility of witnesses and is free to believe or disbelieve all or part of a witness=s testimony.  Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998).

In reviewing factual sufficiency of the evidence, we view all the evidence in a neutral light and will set aside the verdict only to prevent manifest injustice.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  In conducting a factual-sufficiency review, we engage in a two-prong test to determine whether there is some objective basis to find: (1) that the evidence in support of the jury=s verdict is so weak that the jury=s verdict seems clearly wrong and unjust, or (2) that conflicting evidence is so strong as to render the jury=s verdict clearly wrong and manifestly unjust.  Roberts v. State, 220 S.W.3d 521, 523 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 282 (2007); Watson, 204 S.W.3d at 414B15. 

B.        Identity

Appellant first contends the evidence is legally insufficient to prove he was the person who committed the crime charged.  It is axiomatic that the State is required to prove beyond a reasonable doubt that the accused is the person who committed the crime charged.  McCullen v. State, 372 S.W.2d 693, 695 (Tex. Crim. App. 1963).  Appellant argues that his conviction was based on complainant=s testimony, which was too weak because the State lacked sufficient corroborating evidence. 

Identity of a perpetrator may be proved by direct or circumstantial evidence.  Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986).  A victim=s unequivocal in-court identification is sufficient to establish the identity of the perpetrator of a robbery.  See Jones v. State, 687 S.W.2d 430, 432 (Tex. App.CHouston [14th Dist.] 1985, no pet.). However, an uncertain in-court identification, absent corroborating evidence, is insufficient to support a guilty verdict.  Serrano v. State, 936 S.W.2d 387, 393 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d); Bickems v. State, 708 S.W.2d 541, 543 (Tex. App.CDallas 1986, no pet.).

At trial, complainant gave the following testimony:

THE STATE: How close was the defendant to you at [the time of the robbery]?

COMPLAINANT: . . . very close.

THE STATE: Were you able to see his face well?

COMPLAINANT: Yes, but he has changed a lot.

. . .

THE STATE: What did [the assailant] look like that day?

COMPLAINANT: He was slender, he was wearing . . . a greenish shirt.  And after he was caught, he had a white shirt.

. . .

THE STATE: How does he look different today?

COMPLAINANT: He looks fatter.  When he robbed me, he had some mustache and it=s different now.

THE STATE Did he have more facial hair on him at that time?

COMPLAINANT: Yes.

THE STATE: Do you see the person here in court today that robbed you on that day?

COMPLAINANT: It looks like him with the white shirt sitting up there at the front. . . . [H]e looks fatter now and his face has changed.

THE STATE: Can you look at him and point to him and identify the color of shirt that he=s wearing?

COMPLAINANT: It=s the one over there with the white shirt [identifying appellant].

Appellant contends this testimony was equivocal and insufficient to support the jury=s verdict. He argues that complainant=s testimony was contradictory: the man who robbed her was slender and mustachioed; but in the courtroom, appellant appeared fatter, with an altered facial appearance.  Further, appellant contends complainant made no actual identification because, at one point in her testimony, she  stated that appellant Alooks like@ the man who robbed her. 

However, after reviewing this testimony in the light most favorable to the verdict, we conclude the evidence is sufficient to prove appellant=s identity.  Complainant testified that, at the time of the robbery, she had a good look at appellant=s face and observed him at close range.  Although complainant noted that appellant=s appearance had changed since the time of the robbery, she never equivocated in her identification of appellant as the person who robbed her.^[1]  Moreover, other evidence adduced at trial corroborated complainant=s identification: on the day of the robbery, complainant identified appellant as her assailant; the police discovered the battery of complainant=s cellular phone in appellant=s pocket; and complainant located the shirt worn during the robbery in the area where she found appellant after the robbery.  Accordingly, after reviewing the evidence in the light most favorable to the verdict, we hold it is legally sufficient to prove appellant=s identity beyond a reasonable doubt.  See Salinas, 163 S.W.3d at 737.  We overrule appellant=s first issue.

C.        Deadly Weapon

In his second issue, appellant contends the evidence is factually insufficient to prove he used or exhibited a deadly weapon during the commission of the robbery.  A Adeadly weapon@ is Aa firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or . . . anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@  Tex. Pen. Code Ann. ' 1.07 (Vernon 2003 & Supp. 2008).  A knife is not a deadly weapon per se.  See Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991).  However, the State may prove that a knife is a deadly weapon by adducing sufficient evidence that the knife was, in fact, manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.  Id.  Therefore, the State may prove that a knife could cause death or serious bodily injury by showing the manner of its use, the size of the blade, threats made by the accused, or the physical proximity between the accused and the victim.  Soto v. State, 864 S.W.2d 687, 691 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d) (citing Blain v. State, 647 S.W.2d 293, 293B94 (Tex. Crim. App. 1983)).

Appellant argues that complainant=s description of the knife as Asmall,@ with a three to four inch blade, is proof that the knife was not a deadly weapon.  Further, appellant contends the record is unclear regarding how the knife was used during the robbery. Although complainant described the knife as small, she testified that appellant grabbed her and placed the knife against her body and she was in fear of losing her life.  The jury could have reasonably concluded that a three to four inch blade knife, placed against the body of a victim in a threatening manner, which caused the victim to fear for her life, constituted a deadly weapon.  See Tex. Pen. Code Ann. ' 1.07.  Accordingly, after reviewing the evidence in a neutral light, we conclude the evidence in support of the jury=s verdict is not so weak that the jury=s verdict seems clearly wrong and unjust, and, in considering conflicting evidence, the jury=s verdict is not against the great weight and preponderance of the evidence.  See Roberts, 220 S.W.3d at 523.  We overrule appellant=s second issue.

The judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed October 7, 2008.

Panel consists of Justices Yates, Seymore, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Additionally, we note that other witnesses also testified that appellant=s appearance had changed since the robbery.  Amalia Rivera and Officer Garcia testified that appellant had gained weight since the date of his arrest, although Amalia once stated that appellant Alooked smaller in court.@  Further, both Amalia and Officer Guerra noted that appellant=s appearance differed from the date of his arrest because, at trial, he looked Aclean@ or Aclean-cut.@