Kenneth Ray Roberson v. State ( 2009 )

Affirmed and Memorandum Opinion filed December 22, 2009

In The

Fourteenth Court of Appeals

NO. 14-08-00238-CR

Kenneth  Ray Roberson, Appellant

V.

The State of Texas, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1088327

MEMORANDUM OPINION

            A jury convicted Appellant Kenneth Ray Roberson of aggravated robbery.  On appeal, appellant contends (1) the evidence identifying him as the perpetrator was legally and factually insufficient and (2) the trial court erred in making an affirmative finding that appellant used a deadly weapon when he committed the offense.  Finding no error, we affirm the trial court’s judgment.

I.   Background

            Early in the morning of October 9, 2006, the complainant was working at the Green Room, a members-only, illegal gambling establishment in The Highlands, Texas, a community on the east side of Houston, Texas.  The Green Room’s door was always locked, and members had to ring a buzzer to alert a worker on the inside to let them in.  Around 4:30 a.m., the complainant heard someone ringing the buzzer. She looked at the monitor and recognized the man ringing the buzzer as “Kenny,” a member whom she had seen at the Green Room on two prior occasions.  The complainant opened the door for him and said, “Hey Kenny.”  He signed “Kenny” on the Green Room’s sign-in sheet and paid the requisite five dollars to enter the establishment.  The complainant would later identify appellant at trial as the same “Kenny” who robbed her at the Green Room that morning. 

According to the complainant, appellant behaved unusually that morning, causing her to worry something was amiss.  Concerned, the complainant pulled her gun out of her purse and placed it in her sweatshirt pocket. While doing so, she looked at a video monitor and observed a man, who was not a member, lightly knocking on the club’s door.  In response, appellant stood up from his machine and, against club policy, opened the door for the non-member. 

The complainant asked both men to leave and attempted to return appellant’s five dollars from cash she had in her pocket.  Appellant’s new companion ignored her request, and instead walked past her towards another club patron, “Gary,” the only other person in the Green Room.  After speaking with Gary, the man drew a gun, put it to Gary’s side, and ordered Gary to turn over his money.  Gary complied.  When the gun was withdrawn from his side, Gary tried to grab it.  However, the assailant struck him with it on the back of his neck, knocking him to the ground.   

            Appellant ordered the complainant to turn over her money, and he yanked cash from her pocket.  He pulled her hair and slammed her against the counter, hitting her face

and chipping her tooth.  Appellant’s friend approached the complainant with his gun in hand, prompting her to fire two shots.  The first shot hit her own elbow and the second hit appellant’s companion in the leg.  Appellant grabbed the complainant by her hair and pulled her behind the counter where he grabbed cash out of an unlocked box.  Thereafter, he fled the Green Room.    

            When the police arrived, the complainant and Gary, separately, gave a physical description of appellant from which the Harris County Sheriff’s Office constructed a photo array. Later, the complainant and Gary separately identified appellant from the photo array as the robber, “Kenny.” 

            At trial, appellant testified he did not answer to the name “Kenny” even though his name was Kenneth.  He claimed his handwriting did not match Kenny’s signature in the Green Room’s logbook.  He also indicated that did not know the man with whom he was alleged to have committed the robbery or the girl normally seen with Kenny. 

Additionally, appellant provided an alibi that, several hours after the robbery occurred, he was at work at a department store in Monroe, Louisiana, some 320 miles away from The Highlands, Texas.  As evidence, he offered a timecard purporting to show he clocked-in at work at 9:02 a.m. on October 9, 2006. 

            Appellant also presented testimony from his mother and grandmother in support of his alibi. His mother testified he lived with her and that she usually took him to work during October 2006, although she could not remember many details about October 9, the day the robbery occurred.  His mother and grandmother also testified the trip from Houston to Monroe took six and one-half hours to drive at sixty-five miles per hour, with two or three bathroom breaks.  In response, the State argued it was not impossible for appellant to have left Houston at 4:30 a.m. and arrived in Monroe at 8:30 a.m. if he drove the 320 miles at approximately 80 miles per hour.  In addition, the prosecution noted that the timecard may have been punched without the physical presence of the Appellant.

            The jury convicted appellant of aggravated robbery and sentenced him to thirty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.  On appeal, he contends (1) the evidence identifying him as the robber was legally and factually insufficient in light of his alibi evidence and (2) the trial court erred in making an affirmative finding that he used a deadly weapon while committing the offense.

II.   Discussion

A.   Sufficiency of the Evidence

In his first and second issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction.  We disagree.

i. Legal Sufficiency of the Evidence

In a legal sufficiency review, we consider all of the evidence in the light most favorable to the verdict and decide whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Reed v. State, 158 S.W.3d 44, 46 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).  We may not substitute our judgment for the jury’s, and will not engage in a reexamination of the weight and credibility of the evidence.  Id.; Brochu v. State, 927 S.W.2d 745, 750 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).  Because we consider the evidence in the light most favorable to the jury’s verdict, we must disregard appellant’s alleged alibi evidence and focus instead on the evidence supporting the conviction to determine whether it is legally sufficient.  See Reed, 158 S.W.3d at 46.

Identification by only one eyewitness can be legally sufficient evidence to support a conviction.  Walker v. State, 180 S.W.3d 829, 832 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).  Here, both the complainant and Gary, on separate occasions, identified appellant from a photo array as the man who committed the robbery.  Moreover, the complainant testified she recognized appellant as the robber because he was a member of the Green Room and she had seen him there on at least two prior occasions.  Based on this evidence, we hold a rational trier of fact could have found beyond a reasonable doubt that appellant was the man who robbed the Green Room. See Reed, 158 S.W.3d at 46; Walker, 180 S.W.3d at 832.

ii. Factual Sufficiency of the Evidence

Unlike a legal sufficiency review, when conducting a factual sufficiency review, we review all of the evidence in a neutral light.  Reed, 158 S.W.3d at 46. We set aside the verdict only if (1) the proof of guilt is so weak that the verdict must be clearly wrong and manifestly unjust, or (2) the proof of guilt, although legally sufficient, is greatly outweighed by contrary proof.  See Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005).  Because the jury is in the best position to evaluate the credibility of the witnesses, we must afford appropriate deference to its conclusions.  Pena v. State, 251 S.W.3d 601, 609 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).  A decision is not manifestly unjust simply because the jury resolved conflicting views of the evidence in favor of the State.  Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

Appellant argues the evidence is factually insufficient because the State did not prove his fingerprints or DNA were found at the scene.  Nevertheless, DNA evidence, while helpful, is not a necessity when other evidence, like eyewitness testimony, establishes the defendant’s guilt.  See Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); Santos v. State, 116 S.W.3d 447, 459 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).

Appellant also offered his own testimony denying (1) he answers to the name “Kenny,” (2) he knows the man with whom he allegedly robbed the Green Room, and (3) he is acquainted with the woman with whom he was said to have frequented the Green Room.  Further, he presented alleged alibi evidence consisting of (1) a timecard that had been time-stamped at 9:02 a.m. in Monroe, Louisiana, some 320 miles away from Houston, Texas, (2) his mother’s testimony that she remembered taking him to work that day, and (3) testimony from his mother and grandmother that the Houston-to-Monroe car trip takes six and one-half hours with two or three bathroom breaks.  

However, the jury may exercise its discretion to determine whether the testimony of three interested witnesses was credible.  As the sole judge of the witnesses’ credibility, the jury can accept or reject competing theories of a case and choose to believe all, some, or none of the testimony presented by the parties.  See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The jury could have disregarded the evidence appellant presented because he offered no corroborating evidence confirming his employment or his claim that he was the person who actually clocked in at 9:02 a.m.  Alternatively, the jury could have accepted the State’s contention that appellant committed the crime and still clocked-in in Monroe at 9:02 a.m., a suggestion that might explain why he arrived more than an hour late for a shift his mother claimed started at 8:00 a.m.

The State also produced eyewitness testimony from two persons, Gary and the complainant, who connected appellant with the crime.  The jury apparently found their testimony credible and accepted the State’s theory of the case.   We must defer to the jury’s conclusions.  See Pena, 251 S.W.3d at 609.  Thus, viewing the evidence in a neutral light, the proof of guilt is not so obviously weak as to be clearly wrong and manifestly unjust, and the proof of guilt is not greatly outweighed by contrary proof.  See Vodochodsky, 158 S.W.3d at 510. Accordingly, we overrule appellant’s first and second issues.

B.   Deadly Weapon Finding

In his third issue, appellant contends the trial court erred in making an affirmative finding that he used a deadly weapon, specifically a firearm, while committing the offense.  Where use of a deadly weapon is an element of the offense, the State automatically carries the burden of proving the defendant knew a weapon would be used or exhibited in the commission of the offense.  Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).  However, where the use of a deadly weapon is charged as an element of the offense and the jury finds the defendant guilty as charged, it may be concluded the jury necessarily made the factual finding to support the entry of an affirmative finding that the defendant used or exhibited a deadly weapon.  See id.

In Sarmiento, the jury convicted the defendant of aggravated robbery but did not make an affirmative finding that the defendant used a deadly weapon or knew a deadly weapon would be used.  Id. at 567.  However, since the defendant’s use of a deadly weapon was an element of the offense charged in the indictment, we held the jury necessarily made an implicit finding because to find the defendant guilty, even as a party, it must have concluded he knew a deadly weapon would be used or exhibited while he committed the offense.  Id. at 569, 570. 

Here, the State charged appellant with aggravated robbery and alleged use of a deadly weapon.  Therefore, the jury could not have convicted appellant of aggravated robbery, even as a party, unless it found his participation in the offense was accompanied by the intent to promote or assist the commission of the offense.  See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003).   Use of a deadly weapon is an element of the offense.  Consequently, before the jury could have convicted appellant, it also must have believed, beyond a reasonable doubt, he knew a deadly weapon would be used in the commission of the offense.  See Sarmiento, 93 S.W.3d at 570.  Thus, by its verdict, the jury necessarily made an implicit finding to support entry of an affirmative finding that appellant used or exhibited a deadly weapon.  See id.  Accordingly, we overrule appellant’s third issue. 

III.   Conclusion

            Having overruled all of appellant’s issues, we affirm the judgment of conviction.

                                                                        /s/        Kent C. Sullivan

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.

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