Kenneth Dewayne Walker v. State ( 2007 )

Opinion issued May 24, 2007

Opinion issued May 24, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00618-CR

KENNETH DEWAYNE WALKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1025774

MEMORANDUM OPINION

Appellant Kenneth Dewayne Walker pleaded not guilty to the first-degree felony offense of aggravated robbery.  Tex. Pen. Code Ann. § 29.03 (Vernon 2003).  A jury found Walker guilty and the trial court assessed punishment at twenty years’ confinement.  In one issue, Walker contends the identification evidence is factually insufficient to support his conviction.  We conclude that the identification evidence is factually sufficient to support Walker’s conviction.  We therefore affirm.

Background

          In February 2005, Vicki Littleton lived in a two-bedroom duplex with Charles Henderson.  On the night of February 12, Littleton and Henderson went to a store and obtained two money orders that they planned to use to pay bills.  They next bought some groceries at a local Wal-Mart and then drove home. Littleton brought a few bags of groceries into the house and then waited for Henderson to bring the rest.  Littleton heard Henderson talking to someone outside so she went to the front door and saw Henderson talking to two black males.  Littleton went outside but one of the men, later identified as Walker, told her to go back inside if she wanted to live.  Both Walker and his accomplice had guns.  

Walker and the accomplice forced Littleton and Henderson inside the duplex and told them to sit on the couch.  The accomplice held a gun on Littleton and Henderson while Walker searched the bedrooms.  The accomplice then told Henderson to stand up.  Henderson complied and the accomplice removed everything from Henderson’s pockets.  Walker then came out of the bedroom and searched Littleton’s pockets.  When Walker found the two money orders, Littleton asked him not to take them.  Walker pointed his gun at Littleton’s forehead but Henderson interjected and said, “That’s okay.  You can have the money orders.  Don’t shoot her.”  As Walker and the accomplice left the duplex, the accomplice fired a shot that went through a TV tray and the couch.  Littleton and Henderson called the police after they were certain the men were gone.

          A few days later, Littleton received information that a woman named Shalay Randle had cashed the money orders at Toyo’s liquor store.  Littleton also received copies of the money orders, which she turned over to Sergeant T. Scoggins of the Houston Police Department. Scoggins brought a picture of Randle to the liquor store, where the storeowner confirmed that Randle had cashed the money orders.  Scoggins’s continued investigation of the case led him to believe that Walker might be a suspect.  Scoggins compiled a photograph lineup that included Walker’s picture and asked Littleton to come to the police station on May 2, 2005.  Littleton identified Walker as one of the robbers. 

Factual Sufficiency

          In his sole issue, Walker contends the identification evidence is factually insufficient to support his conviction. 

When conducting a factual sufficiency review, we view all of the evidence in a neutral light.  Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999).  We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict.  Id.  Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id.  In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). 

We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor.  Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997).  As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented.  Id. at 407 n.5.

A person commits the offense of aggravated robbery if he, in the course of committing theft and with intent to obtain or maintain control of the property, intentionally or knowingly threatens or places another in fear of imminent bodily injury or death, and uses or exhibits a deadly weapon.  Tex. Pen. Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003).

Littleton testified that she first saw Walker when he was outside talking to Henderson.  Walker was about twenty-five feet away, but a streetlight and her porch light were both on.  Littleton testified that she saw Walker’s face when he was outside and he did not attempt to cover it up.  Littleton saw Walker up close when he came inside her duplex.  Walker and the accomplice tried to cover their mouths with their T-shirts but they kept slipping down.  At one point, Walker was actually close enough to Littleton to remove the money orders from her pocket.  Littleton testified that when Walker removed the money orders from her pocket, she could see his entire face because his shirt had slipped down.  Littleton testified that the robbery lasted for at most twenty minutes.

          When the police arrived, Littleton described Walker to Officer E. Carstens as a black male, age twenty-one to twenty-six, around six feet tall, and weighing 160 pounds.  Carstens testified that Littleton also told him that Walker was wearing a dark blue shirt, black pants, a black ski cap, and white latex gloves. At trial, Littleton testified that Walker was wearing a hooded jacket and not a ski cap.   

Six weeks after the robbery, Scoggins asked Littleton to come to the police station to attempt to identify the robbers in a photograph lineup.  Littleton testified that she first identified Walker, whose picture was in position two of the lineup.  Littleton was ninety-nine percent sure that Walker was one of the robbers, and said that she recognized Walker because of his eyes.  Littleton also identified Walker at trial. 

Littleton also told Scoggins that the man in position three could have possibly been Walker’s accomplice.  Littleton was about eighty percent sure of this identification.  Scoggins testified that the man in position three was just a “fill-in” and had no connection to the robbery in this case, and that Littleton’s identification of him was “tentative.” Scoggins also testified that Littleton first identified the man in position three as a possible suspect, and then pointed to Walker’s picture and stated that she was positive that he was one of the robbers.  The photograph lineup admitted into evidence depicts individuals who are substantially similar in appearance, and nothing in the record suggests that the manner in which Scoggins presented the lineup affected Littleton’s response.

Walker relies heavily on Johnson v. State for his contention that the identification evidence is factually insufficient to support his conviction.  978 S.W.2d 703, 707 (Tex. App.—Corpus Christi 1998), aff’d, 23 S.W.3d at 12.  In Johnson, a man wearing a ski mask forced his way into the complainant’s vehicle and made her drive to a secluded area.  Id. at 705.  The man then blindfolded her and drove to another location.  Id.  When they arrived, the man removed the complainant’s blindfold, raped her, and forced her to perform oral sex on him.  Id.  The man removed his ski mask during the oral sex and the complainant testified that she “believ[ed]” she saw his face.  Id.  The complainant also testified that the man was not circumcised, and that it was very dark outside.  Id.  The complainant testified that she was positive that the defendant was the man who raped her, but also stated that she was not 100 percent sure.  Id. at 706.  She also testified that she did not try to remember anything from the night of the rape because she thought the man was going to kill her, and she did not want to look at him.  Id.  After the incident, the complainant failed to identify the defendant in a photograph lineup. Id. To bolster its case, the State produced evidence that DNA testing of the defendant’s blood showed him to be in a group of only 8.5 percent of the black population to match the DNA samples of semen taken from the complainant’s dress.  Id.  Additionally the State produced evidence that the defendant formerly lived in the area where the rape took place, that he was not circumcised, and that he lived in the same area as the complainant at the time the rape occurred.  Id.  The Corpus Christi Court of Appeals held that the identification evidence presented was factually insufficient to support the defendant’s conviction.  Id. at 707.  The Court of Criminal Appeals affirmed.  Johnson, 23 S.W.3d at 12.

The identification evidence in Walker’s case is significantly stronger than the identification evidence in Johnson.  See 978 S.W.2d at 705–06.  Here, Littleton saw Walker without a mask the first time when he was outside.  She later saw him up close, with the lights on, and without a mask, when he removed the money orders from her pocket while inside the duplex.  Although the lineup took place six weeks after the robbery and Littleton incorrectly identified the man in position three, she positively identified Walker and was ninety-nine percent sure that he was one of the robbers.  Littleton also identified Walker at trial.  Littleton never testified that she did not want to see Walker’s face, or that she did not attempt to remember the details of the robbery.  See id. at 706.

Viewing the evidence in a neutral light, we hold that the identification evidence supporting the jury’s finding is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the verdict against the great weight and preponderance of the evidence.  See Watson, 204 S.W.3d at 417; Johnson, 23 S.W.3d at 11; Ladd, 3 S.W.3d at 557.  The evidence is therefore factually sufficient to support the jury’s finding that Walker committed the aggravated robbery in this case.  See, e.g., Brown v. State, 212 S.W.3d 851, 864–65 (Tex. App.—Houston [1st Dist.] 2006, pet. filed) (holding that identification evidence was factually sufficient to support defendant’s aggravated robbery conviction); Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (holding that identification evidence was factually sufficient to support defendant’s aggravated robbery conviction where complainant testified that she got a good look at defendant and positively identified him in photograph lineup); Apolinar v. State, 106 S.W.3d 407, 412–13 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 155 S.W.3d 184, 191 (Tex. Crim. App. 2005) (holding that identification evidence was factually sufficient to support defendant’s aggravated robbery conviction, even though complainant demonstrated memory and vision problems at trial; complainant identified defendant three times at trial, witness testimony was fairly consistent in describing defendant’s appearance, and officers later found knife with blade consistent with defendant’s arm wound); Wimbrey v. State, 106 S.W.3d 190, 191, 193 (Tex. App.—Fort Worth 2003, pet. ref’d) (holding that identification evidence was factually sufficient to support defendant’s conviction for aggravated robbery where two witnesses separately identified defendant in photograph lineup two months after robbery, and both identified defendant at trial); Fluellen v. State, 104 S.W.3d 152, 160–61 (Tex. App.—Texarkana 2003, no pet.) (holding that identification evidence was factually sufficient to support defendant’s conviction for delivery of controlled substance where officer identified defendant at trial, and officer identified defendant’s voice on audiotape of transaction).

Conclusion

          We hold that the identification evidence is factually sufficient to support Walker’s conviction for aggravated robbery.  We therefore affirm the judgment of the trial court.

                                                                   Jane Bland

                                                                   Justice

Panel consists of Justices Nuchia, Hanks, and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).