Steven L. Borgers v. State ( 2006 )

NO. 07-04-0419-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 3, 2006
______________________________
STEVEN L. BORGERS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2004-405065; HON. CECIL G. PURYEAR, PRESIDING
_______________________________
Before QUINN, C.J., REAVIS, J., and BOYD, S.J.1
MEMORANDUM OPINION
In this appeal, appellant Steven L. Borgers challenges his conviction of aggravated
robbery and the ensuing jury-assessed punishment of 60 years confinement in the
Institutional Division of the Department of Criminal Justice and, in addition, a fine of
$10,000. In presenting his appeal, in one point, he contends the evidence is factually
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2005).
insufficient to support the jury’s verdict. Disagreeing with that contention, we affirm the
judgment of the trial court.
The nature of appellant’s challenge makes it necessary for us to recount pertinent
testimony. On February 2, 2004, the Denny’s restaurant located on Avenue Q in Lubbock
was robbed at about 5:00 p.m. The manager of the restaurant, Danielle Walters, testified
that she was in a small room used by her as a place for changing receipts and counting
money. As she was about to lock the door to the room, she was surprised by a black male
who had a pantyhose over his head and was dressed in dark clothes with a blue jacket.
She was seated in a rolling chair and, as the individual entered the room, he knocked her
out of the chair and pushed a gun into the side of her head. The intruder told her she was
being robbed, to get down, not say anything, not to look up at him and if she did look at
him, he would shoot her. He took money off the desk and told Walters that he knew there
was $800 in the safe and she should give him that money.
Walters averred that the robber’s voice stood out for her and that “the characteristics
of the voice was [sic] the exact same as an employee that I had talked to just recently.”
She also averred that as she listened to the voice, “[t]here’s only one name clicking through
my head, and it was the name of the employee.” She identified that employee as
appellant. She also said that the store had a videotape surveillance system that “monitors
pretty much our office door” in addition to other portions of the business. The man told her,
“I want the videotape,” and she gave it to him. She was then pushed under the desk, and
the man attempted his get-away. He was unable to leave through the back door, so he
had to leave through the restaurant.
2
Rick Rose, another Denny’s employee, was eating as a customer at the restaurant
at the time of the robbery. While he was in the restroom at Denny’s, he saw appellant.
Although it took him a minute to recognize him, he knew appellant because he had trained
on the morning shift that appellant had worked. Rose asked appellant what he was doing,
to which appellant replied that he was just there to use the bathroom. Rose noticed that
appellant had on a blue jacket and appeared to have a black bag clutched to his chest.
Shortly afterwards, Rose saw appellant leave the restaurant, he opined, “a little faster than
normal.”
Next, Rose saw Walters come from the back of the building. She was excited and
told him that she had been robbed and, she said, “I know the voice.” They locked the
doors to the restaurant and notified the police. Rose then looked into each of the rooms
of the restaurant and discovered rolls of coins on the floor of the restroom. He averred he
had not seen any African-Americans in the restaurant other then appellant. He was shown
a photo-lineup at the police station and identified appellant as the individual he had seen
in the restroom and at the restaurant.
Appellant’s witness Angela Terrell testified that appellant was staying with her at her
apartment. She said that appellant had come by her workplace to pick her up about 4:30
p.m. on the day of the robbery but left because she had to work until 5:30 p.m. He was not
there to pick her up at 5:30 p.m. but was at her apartment about 5:45 when she returned
after getting a ride from a co-worker. Her apartment was searched by the police, but
nothing incriminating was found. Tasha Terrill, appellant’s niece, furnished alibi testimony
by averring that appellant was at Angela Terrell’s apartment and left a little after 4:00 p.m.
3
She said that appellant returned a little after 4:00 p.m. and left the apartment a little after
5:00 p.m.
It has long been the rule that a criminal appellant may challenge the sufficiency of
the State’s evidence even though the issue was not raised in the trial court. Givens v.
State, 26 S.W.3d 739, 740-741 (Tex. App.–Austin 2000, pet. ref’d). In a factual sufficiency
review, all of the evidence is considered equally, including the testimony of defense
witnesses and the existence of alternative hypotheses. Id. at 741-42. A factual sufficiency
review asks whether a neutral review of the evidence, both for and against the finding of
guilt, demonstrates that the proof of guilt is so obviously weak or so greatly outweighed by
contrary proof as to undermine confidence in the jury’s verdict. See Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). In performing that function, we must remember that
we are not free to reweigh the evidence and set aside a verdict merely because we feel
that a different result is more reasonable. See Clewis v. State, 922 S.W.2d 126, 135 (Tex.
Crim. App. 1996).
The gist of appellant’s challenge is Walters’ identification of appellant as the culprit
simply by her familiarity with his voice. However, her trial testimony was clear, definite, and
unimpeached on cross-examination that she was able to recognize appellant’s voice
because she had heard it before during the course of appellant’s employment at the
restaurant. Her outcry and identification were immediate. The Court of Criminal Appeals
has held that voice identification testimony is admissible and it is within the jury’s province
to determine the weight to be given the testimony. See McInturf v. State, 544 S.W.2d 417,
418-19 (Tex. Crim. App. 1976). There is also testimony that appellant was at the scene
4
of the crime at the time it was committed by a person who was familiar with him. Although
it is true that there was alibi testimony, the evidence adduced was amply sufficient to be
within the jury’s exclusive province to resolve any factual differences and to determine the
credibility of the testimony.
In summary, we hold the evidence was legally and factually sufficient to sustain the
jury verdict. Accordingly, appellant’s point of alleged error must be, and is hereby,
overruled. The judgment of the trial court is affirmed.
John T. Boyd
Senior Justice
Do not publish.
5