Jermaine Marquette Ellis v. State ( 2005 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Jermaine Marquette Ellis

Appellant

Vs.                   No. 11-03-00258-CR -- Appeal from Harris County

State of Texas

Appellee

Jermaine Marquette Ellis appeals his conviction by a jury of the offense of aggravated robbery. Finding allegations in an enhancement paragraph to be true, the jury assessed his punishment at 40 years in the Texas Department of Criminal Justice, Institutional Division.  Ellis asserts in two points that the evidence is legally and factually insufficient to support his conviction.  We affirm.

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then 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 (1979).  In a factual sufficiency review, we view all the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.  Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004).

Nicole Lopez, a 17-year-old high school student, testified that on January 29, 2003, sometime after 5:00 p.m. while she was working at a Burger King in Houston, someone put a small silver gun to her head and told her to give him all the money. She indicated that the gunman was tall and was wearing blue jeans and a black sweatshirt with a hood with a Amesh type@ over his face.  She stated that she gave him all the money from the drive-through register, got on the floor, and curled up in a ball.  She related that, when he asked her what she was doing, she asked him what else he wanted her to do.  She testified that he indicated that she had not opened all the registers yet. According to Lopez, she was not able to open the main registers because she did not have a key.  She stated that, when he tried to get her to open the safe, she told him that only the managers had the combination.  She said that she screamed for the manager but that the manager did not come back. Lopez related that, when she could not open the safe, her assailant started counting backwards from ten and told her that she was about to die.  She indicated that, when she made no response, he left.  Lopez testified that, after viewing a lineup, she was able to identify Ellis immediately based on his voice when counting down from ten.

Dmaya Parromatte testified that she was the assistant manager at the Burger King on the occasion in question.  She said that just prior to the robbery she was on the lookout after receiving a call that a nearby restaurant had been robbed.  She related that, after receiving the call, she noticed a man walking in wearing a black sweatshirt with a hood on.  She indicated that she thought that that was unusual because it was not that cold outside. She stated that she watched him for 20 to 30 seconds.  She insisted that, initially, his face was uncovered and that he covered it as he was coming in the door.  She said that he put a scarf over his face.  She testified that the lighting in the parking lot allowed her to get a good look at him.  Parromatte identified Ellis in court as the man she was describing.  She said that, when she attended a lineup, she immediately identified someone as the person she had seen.  She acknowledged that she had originally told police that he was Hispanic.  She said that, without seeing Ellis=s hair, he appeared Hispanic because of his fair skin.  She related that she saw his face, not his hair.  Parromatte testified that she described the assailant to the police as being tall, from six foot to six foot, three inches.

Sergeant Larry Doreck of the Houston Police Department Robbery Division testified that he was assigned to investigate the robbery.  He said that he initially received Ellis=s name from Aan associate of another suspect that [he] was looking at at that time involved in robbery.@  He said that he got a tip from someone after the robbery about a man who was wearing a hooded sweatshirt and was seen leaving the Burger King in a dark-colored vehicle with the partial license plate number, L28 P_N.  Sergeant Doreck indicated that Ellis was subsequently stopped for a traffic violation while driving a vehicle with the license plate number L28 PXM.  Sergeant Doreck stated that mistaking Ms and Ns on license plates is a very common mistake made by citizens when calling in license plates.

Sergeant Doreck confirmed that both Lopez and Parromatte immediately identified Ellis in a lineup.  He acknowledged that Parromatte initially indicated that she thought the assailant was Hispanic.  Sergeant Doreck also acknowledged that the party making the tip reported that the vehicle the suspect got into was a dark color, possibly green, whereas the car Ellis was driving was burgundy.  However, he said that, at night, he might mistake it for green because it was a dark color.

Barbara Ellis, Ellis=s mother, testified that on January 29, 2003, Ellis called her at about 6:00 and came to her house about 6:30.  She said that he stayed there about 35 to 40 minutes. She indicated that she had a Wednesday night Bible study starting at 7:30 that she attended.  She related that Ellis was at her house until a few minutes after 7:00.  On cross-examination, Barbara Ellis testified that she thought January 29, 2003, was on Sunday, before agreeing that it was a Wednesday.  She acknowledged telling the police that Ellis did not come to her house Athat often.@ She also acknowledged that she did not know what Ellis did after he left her house.

DeCarla Connor, Ellis=s girlfriend, acknowledged that she had a burgundy car with the license plate number L28 PXM.  She testified that on Wednesday, January 29, 2003, Ellis was with her helping her to take care of children until about 5:00 p.m. and that she had to be at school at 6:00.  She stated that he dropped her off at school.  She indicated that she talked to him at his mother=s house at 6:45 or 6:50, during a break in her classes. She related that Ellis brought her some food at her next break, which would have been about 7:50.  She stated that her school was on the southwest side of Houston, whereas the Burger King was on the north side in the Heights neighborhood.  She estimated that the street where the Burger King was located was about 30 minutes from her school.  She stated that Ellis left her school at 8:00 or 8:05 at the latest.  She indicated that he picked her up from school at about 9:30 or 9:40.  She acknowledged that she had never shared any of this information with the police, saying that she would not have known how to do so.  She said that the police never contacted her.  She acknowledged that she also had not volunteered the information to either police officers or prosecutors when all were at court earlier during the week of trial.  She insisted that, while she loves Ellis, she would not come to court and lie for him.

Shamika Ellis, Ellis=s sister, testified that she had a brief conversation with Ellis on the evening of January 29, 2003, when he was at their mother=s house at about 6:45 p.m.  While acknowledging that she loves her brother and would not want to see anything happen to him, she insisted that she would not come to court and lie for him.

Sergeant A. R. Guzman of the Houston Police Department testified that he was assigned to the Burger King robbery investigation and that he developed Ellis as a suspect.  He said that, when he visited with Ellis=s mother, she did not tell him that she specifically recalled seeing Ellis the night of the robbery.  He stated that, when he asked her how frequently she got to visit with Ellis, she told him that he did not come by very often.  Sergeant Guzman said he left her information so that, if someone else had any information relative to the investigation, they could contact him. We hold that the evidence is both legally and factually sufficient to establish Ellis=s guilt.  We do not accept his contention that the evidence is insufficient because of any weakness of the eyewitness identification as opposed to what he characterizes as his mistaken identification evidence, which we assume to be his family and girlfriend=s testimony as to their visits with him on the night of the robbery.

We first note that the State=s evidence not only consisted of the identification evidence but also consisted of evidence that the car of Ellis=s girlfriend, which he drove, had a license plate sub-stantially matching that of the get-away car.  Ellis does not mention this additional evidence at all in his analysis.  Second, the identification evidence is sufficient to support the conviction.  See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Cr.App.1971).  With respect to the family=s testimony, at best, it accounts for Ellis=s whereabouts from 5:00 p.m. to 6:00 p.m.; from 6:30 p.m. to shortly after 7:00 p.m.; from 7:45 p.m. to 8:05 p.m.; and at 9:30 p.m. or 9:40 p.m.  The testimony does not account for Ellis=s time from 9:40 p.m. on.  Inasmuch as the only information concerning the robbery is that it occurred during Lopez=s shift sometime after 5:00 p.m., the family and girlfriend=s testimony was not inconsistent with Ellis having committed the robbery.  In his brief, Ellis addresses neither the inconclusiveness of his alibi testimony nor the inconsistency between his mother=s account of being with him on the evening in question and her having told the police only that he did not come around very often.  We overrule points one and two.

The judgment of the trial court is affirmed.

PER CURIAM

January 31, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Wright, J., and

McCall, J., and Hill, J.^[1]

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^[1]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.