Ethel, Dennis Ray v. State ( 2005 )

Affirmed and Memorandum Opinion filed August 16, 2005

Affirmed and Memorandum Opinion filed August 16, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00093-CR

NO. 14-04-00094-CR

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DENNIS RAY ETHEL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 12th District Court

Grimes County, Texas

Trial Court Cause Nos. 15,014 & 15,016

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M E M O R A N D U M O P I N I O N

Dennis Ethel appeals two convictions for aggravated robbery^[1] on the grounds that: (1) the evidence was legally and factually insufficient to support the verdict; and (2) appellant was denied his right to confrontation.  We affirm.

Appellant=s first four issues contend that the evidence was legally^[2] and factually^[3] insufficient because: (1) neither complainant could identify or describe their assailant; (2) there were no eyewitnesses to the robbery; and (3) no physical evidence was ever recovered that linked appellant to the robbery.

In the robbery, both complainants were over eighty years old, and were struck so hard in the head as they stood in their yard that they apparently lost consciousness.  The primary item taken was cash, including two one-hundred dollar bills.  Evidence supporting the verdict included appellant=s admission to a close friend that he was the one who robbed the complainants. In addition, appellant=s cousin testified that on the day and approximate time of the robbery, appellant came to her house, which is two to four blocks from the complainants= home, and asked to borrow some of her husband=s clothes.  As appellant changed clothes, the husband saw him remove three one hundred dollar bills from his pocket. The husband testified that it was unusual for appellant to have that kind of money on him, and he didn=t have a job.  Appellant also told the husband that he would pay him fifty dollars to walk to the store with him and buy him cigarettes.  As they walked to the store, appellant remarked, AImagine, I just hit a lick,@ and AI hope those old fools are all right.@ Viewed in the light most favorable to the verdict, this evidence is legally sufficient to prove that appellant robbed the complainants, and appellant cites no evidence directly refuting his commission of the offense.  Because his first four issues thus fail to demonstrate the legal or factual insufficiency of the evidence, they are overruled.

Appellant=s fifth issue argues that the trial court violated his right of confrontation by denying his request for a continuance when a prosecution witness did not return the following day to testify in the defense=s case-in-chief. However, appellant made no written motion for continuance.^[4]  In addition, the defense had an opportunity to confront and cross-examine the witness during the State=s case, and appellant cites no authority providing that an inability to further question a witness after the State rests violates any right to confrontation.  Accordingly, appellant=s fifth issue is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed August 16, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

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

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^[1]           A jury found appellant guilty and assessed punishment of ninety-two years confinement plus a  $10,000 fine for each offense.

^[2]           In reviewing the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005).

^[3]           In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Id. at 510.

^[4]           See Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon Supp. 2004-05); Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999).