Adrian Moises v. State ( 2006 )

Affirmed and Memorandum Opinion filed June 27, 2006

Affirmed and Memorandum Opinion filed June 27, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00511-CR

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ADRIAN MOSES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1009080

M E M O R A N D U M   O P I N I O N

A jury convicted appellant Adrian Moses of aggravated robbery and assessed punishment at eleven years and six months= imprisonment.  In one issue, appellant challenges the factual sufficiency of the evidence to support his conviction.  We affirm.

                                Factual and Legal Background

On the evening of October 14, 2004, Lucia Perez Lopez visited a friend, Maria Ayala, at Ayala=s apartment.  Shortly before 10:00 p.m., the two women concluded their visit, and Ayala walked Lopez to her car.  As Lopez opened her car door, a man approached her, held a knife to her chest, and took her purse and its contents, including $500 in cash.  During the robbery, Lopez screamed.  The robber then fled the scene in one direction, but because he was unable to exit the apartment complex, he ran in front of Lopez and Ayala again as he looked for an exit.

Levania Cortes, the assistant to the apartment complex owner, was walking her dog when she heard Lopez scream.  She then saw a man with a purse running through the gate.  When the man saw Cortes, he slowed to a quick walk, walked past her, and got into a car.  Cortes memorized the car=s license plate number and provided it to the police, who traced it to Latasha Jones, one of appellant=s girlfriends.

About a month later, police stopped appellant for a traffic violation while he was driving Jones=s vehicle.  He was stopped again about two weeks later driving the same car.  The second time, officers noticed that appellant matched Lopez=s and Cortes=s description of the robber, so they put him in a videotaped lineup conducted by Officer David Garcia.  Lopez and Ayala positively identified appellant, and Cortes made a tentative identification.

Appellant was arrested and tried for aggravated robbery.  Lopez, Ayala, and Cortes all positively identified appellant in court as the robber.^[1]  Appellant testified and denied robbing Lopez.  He stated that he had only driven Jones=s car on the two occasions he was stopped and claimed he was watching his infant son and toddler step-son on the night of the robbery. The jury convicted appellant, and this appeal followed.

                                                      Analysis

Appellant challenges the factual sufficiency of the evidence to support his conviction.  In conducting a factual-sufficiency review of the jury=s determination, we do not view the evidence Ain the light most favorable to the prosecution.@  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  Instead, we view the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  We may find the verdict factually insufficient in two ways. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id. Second, after weighing the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id.  We must discuss the evidence appellant claims is the most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  However, we must employ appropriate deference so that we do not substitute our judgment for that of the fact-finder.  Zuniga, 144 S.W.3d at 482.

Appellant argues that because each of the identifications of him was tainted, the evidence supporting his conviction is too weak and is outweighed by the contrary evidence.  Because appellant does not raise a separate issue regarding the admissibility of the identifications, we consider his attacks on them only as related to the weight of the evidence in our factual sufficiency review.  See Cate v. State, 124 S.W.3d 922, 928 (Tex. App.CAmarillo 2004, pet. ref=d); Bledsoe v. State, 21 S.W.3d 615, 621 (Tex. App.CTyler 2000, no pet.).

Appellant contends that the videotape lineup identifications of Lopez and Ayala are not credible because the lineup procedure was impermissibly suggestive. Officer Garcia showed Lopez and Ayala the videotape together after carefully admonishing them not to make any identification in each other=s presence.  After watching the videotape, the women were separated, and each positively identified appellant as the robber.  Lopez testified that she began to cry when she saw appellant on the videotape, and thus, according to appellant, Lopez effectively identified him in Ayala=s presence, thereby tainting Ayala=s identification.  However, Officer Garcia testified that Lopez did not begin to cry until after they were separated.  Appellant also complains that the other subjects in the lineup were too dissimilar because he was the tallest and thinnest.  Appellant is six feet two inches tall and weighs 170 pounds.  The other four subjects ranged in height between five feet nine inches and six feet one inch tall and ranged in weight between 160 and 185 pounds.

Appellant also claims that the prosecutor tainted Cortes=s in-court identification during pretrial preparation.  Cortes had made a tentative identification from the videotape but made a positive identification in court.  During cross-examination, appellant=s attorney elicited testimony that the prosecutor told her that it did not matter whether she identified appellant at trial because two others had already identified him.  Cortes testified that the prosecutor=s comment did not influence her identification and that she had been able to make a positive in-court identification after viewing appellant in person and observing his facial features in more detail, particularly what she characterized as his Abig ears.@ 

Appellant contends substantial evidence supports his innocence.  He testified that he did not rob Lopez, and he emphasizes that no physical evidence connects him to the crime in that police did not recover the knife used or find  him in possession of any stolen property.  Appellant also points to alibi evidence, provided by both him and his mother, showing he was caring for his son and step-son at the time of the incident. However, his son=s mother, another of appellant=s girlfriends, testified that appellant had the children only during the day. The robbery occurred around 10:00 p.m.

Viewing the evidence in a neutral light, the jury was justified in finding appellant guilty.  Appellant matched the description of the robber given to the police, he was stopped twice by police while driving the getaway car, and three witnesses positively identified him in court.  It is the jury=s role to assess and resolve issues undermining the credibility of an identification.  See Cate, 124 S.W.3d at 928B29; Bledsoe, 21 S.W.3d at 621.  The evidence conflicts on whether Lopez reacted emotionally to the videotape in Ayala=s presence or after they separated.  That the jury resolved this conflict in favor of the State does not render the evidence insufficient.  Cain, 958 S.W.2d at 410.  Further, the differences in the height and weight of the lineup subjects do not render the lineup impermissibly suggestive.  See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985) (finding that height range of five feet nine inches to six feet two inches and weight range of 170 to 210 pounds is not suggestive discrepancy between lineup subjects); see also Bethune v. State, 821 S.W.2d 222, 229 (Tex. App.CHouston [14th Dist.] 1991) (ANeither due process of law nor common sense requires that the features of the subjects in a pretrial lineup be identical.@), aff=d on other grounds, 828 S.W.2d 14 (Tex. Crim. App. 1992).  Moreover, Ayala testified that she saw the robber=s face twice when he crossed in front of her attempting to find an exit, and Lopez saw his face during the robbery and his escape attempt. Thus, the record clearly shows their in-court identifications were independent of any taint from pretrial identification procedures.  See Bledsoe, 21 S.W.3d at 621; Bethune, 821 S.W.2d at 229.  As to Cortes, she testified that viewing appellant in person, rather than her pretrial discussion with the prosecutor, allowed her to make a positive in-court identification, even though her videotape identification had been tentative.  The jury was free to believe Cortes=s testimony.  See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000) (AThe jury may choose to believe some testimony and disbelieve other testimony.@).  As to the evidence indicating his innocence, the jury was also free to disbelieve appellant=s self-serving testimony and his alibi, and the lack of physical evidence is merely a factor for the jury to weigh in deciding guilt. See Bustamante v. State, 106 S.W.3d 738, 741 (Tex. Crim. App. 2003) (noting that jury has discretion to disbelieve self-serving testimony); Johnson v. State, 176 S.W.3d 74, 77B78 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d) (rejecting factual sufficiency challenge based on alibi, lack of physical evidence, and vague identification).  Finally, the prosecutor impeached appellant with multiple prior convictions, further undermining his credibility.  Viewing the evidence in a neutral light, we conclude the evidence is not too weak to support the finding of guilt beyond a reasonable doubt, and the contrary evidence is not sufficiently strong to conclude that the reasonable doubt standard could not be met.  We overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed June 27, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

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

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^[1]  After they testified, appellant moved to exclude Cortes=s in-court identification and Lopez=s and Ayala=s pretrial identifications as tainted.  These motions were denied, and appellant does not challenge their denial on appeal.