in the Matter of J. K. R. ( 1996 )

cv5-749.dd.jkr TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00749-CV



In the Matter of J. K. R.



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. J-14,656, HONORABLE JOHN DIETZ, JUDGE PRESIDING

PER CURIAM

The trial court found J.K.R. had committed delinquent conduct by committing a robbery. The court placed him on intensive supervised probation for one year. J.K.R. appeals, challenging the legal and factual sufficiency of the evidence to support the judgment of delinquency. We will affirm the trial court's judgment.

J.K.R.'s points of error have distinct standards of review. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Tex. Fam. Code Ann. § 54.03(f) (West 1996); see also Jackson v. Virginia, 443 U.S. 307 (1979); P.L.W. v. State, 851 S.W.2d 383, 387 (Tex. App.--San Antonio 1993, no writ). In determining the factual sufficiency, we consider all the testimony and evidence and can set aside a verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, No. 450-94, slip op. at 2 (Tex. Crim. App. January 31, 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed). Under both standards, the trial court is the exclusive judge of the credibility of witnesses and the weight to be given to their testimony. See H.R.A., 790 S.W.2d at 105.

J.K.R. challenges only the victim's identification of him as the robber. The victim testified that she first saw J.K.R. when she stopped her car at her townhouse mailbox upon returning home on May 15 between 5:30 p.m. and 5:45 p.m. He then followed her when she moved her car to park it in her assigned place near her home. Before she could enter her home, he accosted her, demanded her purse, and pulled it away from her when she refused to hand it over. The victim described him only as a black male between ages fifteen and seventeen, but later gave a more specific description. She also picked J.K.R. out of a photo lineup; police told her that the forger and J.K.R. were associated. When testifying, she occasionally used equivocal words when describing the certainty of her identification. She said, "I'm pretty certain; 100 percent sure" that J.K.R. was her robber. She later said she identified him because "he's the one who I saw. He was the one who attacked me that day, and I'm pretty sure that it's him." She said she was trained to remember faces in her job as a bank teller so that she could recognize customers and remember robbers. The police officer who witnessed her identification said she looked at each photo in the lineup, but then picked J.K.R. without hesitation.

No physical evidence linked J.K.R. to the robbery. The victim's checks were forged by another person who matched the description the victim gave to police. J.K.R.'s fingerprints were not on the checks. Police did not find him with any items from the purse.

J.K.R. testified that he did not commit the robbery. He said he was at home during the robbery. He slept until 4:00 p.m., listened to music for awhile, and then had his mother drive him to his girlfriend's house at 6:00 p.m. or thereafter. His mother confirmed his story. They both testified that they remembered this sequence because it occurred the day after Mother's Day. J.K.R. testified that he could not remember any details of any of the other days immediately surrounding Mother's Day.

The testimony is both legally and factually sufficient to support the identification and the conviction. Under the legal sufficiency standard, the victim's testimony is more than enough to support the judgment. The question is closer under the factual sufficiency standard, but we defer to the factfinder. The victim alternately used words indicating certainty and some uncertainty in making the identification; the factfinder is the judge of the credibility of her claims of certainty. The court also could weigh her veracity against the credibility of the defense witnesses. We cannot say that the judgment is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule both points of error.

We affirm the judgment of delinquency.

Before Chief Justice Carroll, Justices Aboussie and Kidd

Affirmed

Filed: May 29, 1996

Do Not Publish