Nathan Darrell Neighbors A/K/A Nathann Hercules Neighbors v. State ( 2008 )


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  •                           COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 2-07-176-CR
    NATHAN DARRELL NEIGHBORS                                        APPELLANT
    A/K/A NATHANN HERCULES
    NEIGHBORS
    V.
    THE STATE OF TEXAS                                                   STATE
    ------------
    FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
    ------------
    MEMORANDUM OPINION 1
    ------------
    I. Introduction
    Appellant Nathan Darrell Neighbors a/k/a Nathann Hercules Neighbors
    appeals his felony conviction of aggravated robbery with a deadly weapon. In
    three points, appellant argues that the evidence was legally and factually
    1
    … See T EX. R. A PP. P. 47.4.
    insufficient to support his conviction and that the trial court erred by refusing
    to submit a lesser included offense charge of robbery to the jury. We affirm.
    II. Background Facts
    On March 15, 2003, Paradise Liquors’s owner Delaware Wafayee and his
    employee, Lorenzo Corral, were locking the doors after closing when a man,
    who was wearing a ski mask, approached Wafayee from behind with a gun and
    ordered him to open the door and disarm the security system. The man then
    forced Wafayee and Corral to the back office where the safe was located.
    After Wafayee opened the safe, the man put down the gun and began to stuff
    the cash in a bag. Corral saw the gun on the ground, lunged for the weapon,
    and began to struggle with the man. Corral kept holding the weapon and hit
    the man with the butt of the gun, which caused the man to bleed profusely.
    During the struggle, the man’s mask also came off. While Corral and the man
    were wrestling for the gun, Wafayee grabbed a nearby champagne bottle and
    hit the man on the head seven or eight times. Wafayee then ran out of the
    office to press the panic button, and Corral quickly followed still holding the
    gun. While Wafayee called 9-1-1 and Corral watched for the police by the
    entrance, the man, who was bleeding from his head and face, emerged from
    the office and walked towards the door. Although Wafayee could tell that the
    man was a black male, neither he nor Corral could clearly see his facial features
    2
    because he was covered in blood. Corral pointed the gun at the man, but the
    man told Corral that he was leaving no matter what so he had better shoot him.
    Corral pulled the trigger but nothing happened, and the man left the store.
    Officer Sylvester Brown of the Arlington Police Department arrived shortly
    thereafter, but he could not locate the man. Officer Robert Petty collected the
    suspect’s gun, and Investigator Kathy Isbell collected the suspect’s ski mask,
    a sample of his blood, and some of his scalp tissue with hair. Detective Richard
    Daniel Nutt entered the DNA evidence obtained from the samples into the
    Combined DNA Indexing System (CODIS)—a DNA database that compares
    unknown DNA samples with known samples. Because of the lack of leads, the
    case quickly became inactive, but it was reopened in March 2006 when CODIS
    found a match to the DNA sample that had been submitted in 2003.            The
    Arlington Police Department identified appellant as the match and obtained
    arrest and search warrants to get a buccal swab.2 The DNA evidence taken
    from the crime scene positively matched the DNA evidence obtained from
    appellant’s buccal swab.
    2
    … Detective Nutt testified that a buccal swab is similar to a long Q-tip,
    which he rubbed in between appellant’s cheek and gums to collect a DNA
    sample.
    3
    A grand jury indicted appellant for aggravated robbery. At trial in May
    2007, appellant requested a lesser included charge of robbery, which the trial
    court denied. A jury convicted appellant of aggravated robbery with a deadly
    weapon, a firearm, and recommended punishment at fifty-five years’
    confinement, which the trial court assessed accordingly. Appellant timely filed
    this appeal.
    III. Sufficiency of the Evidence
    In his first two points, appellant claims that the evidence was legally and
    factually insufficient to identify him as the person who robbed the Paradise
    Liquor store.
    A.    Standard of Review
    1.       Legal Sufficiency
    In reviewing the legal sufficiency of the evidence to support a conviction,
    we view all the evidence in the light most favorable to the prosecution in order
    to determine whether any rational trier of fact could have found the essential
    elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 2789 (1979); Clayton v. State, 
    235 S.W.3d 772
    , 778 (Tex. Crim. App. 2007).
    This standard gives full play to the responsibility of the trier of fact to
    resolve conflicts in the testimony, to weigh the evidence, and to draw
    4
    reasonable inferences from basic facts to ultimate facts. 
    Jackson, 443 U.S. at 319
    , 99 S. Ct. at 2789; 
    Clayton, 235 S.W.3d at 778
    . The trier of fact is the
    sole judge of the weight and credibility of the evidence. See T EX. C ODE C RIM.
    P ROC. A NN. art. 38.04 (Vernon 1979); Margraves v. State, 
    34 S.W.3d 912
    , 919
    (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we
    may not re-evaluate the weight and credibility of the evidence and substitute
    our judgment for that of the fact-finder. Dewberry v. State, 
    4 S.W.3d 735
    ,
    740 (Tex. Crim. App. 1999), cert. denied, 
    529 U.S. 1131
    (2000). Instead, we
    “determine whether the necessary inferences are reasonable based upon the
    combined and cumulative force of all the evidence when viewed in the light
    most favorable to the verdict.” Hooper v. State, 
    214 S.W.3d 9
    , 16-17 (Tex.
    Crim. App. 2007).      We must presume that the fact-finder resolved any
    conflicting inferences in favor of the prosecution and defer to that resolution.
    
    Jackson, 443 U.S. at 326
    , 99 S. Ct. at 2793; 
    Clayton, 235 S.W.3d at 778
    .
    The sufficiency of the evidence should be measured by the elements of
    the offense as defined by the hypothetically correct jury charge for the case.
    Malik v. State, 
    953 S.W.2d 234
    , 240 (Tex. Crim. App. 1997); Bowden v.
    State, 
    166 S.W.3d 466
    , 470 (Tex. App.—Fort Worth 2005, pet. ref’d). Such
    a charge would be one that accurately sets out the law, is authorized by the
    indictment, does not unnecessarily restrict the State’s theories of liability, and
    5
    adequately describes the particular offense for which the defendant was tried.
    Gollihar v. State, 
    46 S.W.3d 243
    , 253 (Tex. Crim. App. 2001); 
    Malik, 953 S.W.2d at 240
    . The law as authorized by the indictment means the statutory
    elements of the charged offense as modified by the charging instrument. See
    Curry v. State, 
    30 S.W.3d 394
    , 404 (Tex. Crim. App. 2000).
    2.    Factual Sufficiency
    When reviewing the factual sufficiency of the evidence to support a
    conviction, we view all the evidence in a neutral light, favoring neither party.
    Watson v. State, 
    204 S.W.3d 404
    , 414 (Tex. Crim. App. 2006); Drichas v.
    State, 
    175 S.W.3d 795
    , 799 (Tex. Crim. App. 2005). We then ask whether
    the evidence supporting the conviction, although legally sufficient, is
    nevertheless so weak that the fact-finder’s determination is clearly wrong and
    manifestly unjust or whether conflicting evidence so greatly outweighs the
    evidence supporting the conviction that the fact-finder’s determination is
    manifestly unjust. 
    Watson, 204 S.W.3d at 414-15
    , 417; Johnson v. State, 
    23 S.W.3d 1
    , 11 (Tex. Crim. App. 2000). To reverse under the second ground,
    we must determine, with some objective basis in the record, that the great
    weight and preponderance of all the evidence, though legally sufficient,
    contradicts the verdict. 
    Watson, 204 S.W.3d at 417
    .
    6
    In determining whether the evidence is factually insufficient to support a
    conviction that is nevertheless supported by legally sufficient evidence, it is not
    enough that this court “harbor a subjective level of reasonable doubt to
    overturn [the] conviction.” 
    Id. We cannot
    conclude that a conviction is clearly
    wrong or manifestly unjust simply because we would have decided differently
    than the jury or because we disagree with the jury’s resolution of a conflict in
    the evidence. 
    Id. W e
    may not simply substitute our judgment for the fact-
    finder’s. Johnson, 23 S.W .3d at 12; Cain v. State, 
    958 S.W.2d 404
    , 407
    (Tex. Crim. App. 1997). Unless the record clearly reveals that a different result
    is appropriate, we must defer to the jury’s determination of the weight to be
    given contradictory testimonial evidence because resolution of the conflict
    “often turns on an evaluation of credibility and demeanor, and those jurors were
    in attendance when the testimony was delivered.” 
    Johnson, 23 S.W.3d at 8
    .
    Thus, we must give due deference to the fact-finder’s determinations,
    “particularly those determinations concerning the weight and credibility of the
    evidence.” 
    Id. at 9.
    An opinion addressing factual sufficiency must include a discussion of the
    most important and relevant evidence that supports the appellant’s complaint
    on appeal.   Sims v. State, 
    99 S.W.3d 600
    , 603 (Tex. Crim. App. 2003).
    Moreover, an opinion reversing and remanding on factual insufficiency grounds
    7
    must detail all the evidence and clearly state why the finding in question is
    factually insufficient and under which ground. Goodman v. State, 
    66 S.W.3d 283
    , 287 (Tex. Crim. App. 2001); 
    Johnson, 23 S.W.3d at 7
    .
    B.    Analysis
    To convict appellant of aggravated robbery, the State was required to
    prove that appellant, in the course of committing theft and with intent to obtain
    or maintain control of property, intentionally or knowingly threatened or placed
    another in fear of imminent bodily injury or death while using or exhibiting a
    deadly weapon.       T EX. P ENAL C ODE A NN . §§ 29.02, 29.03 (Vernon 2003);
    Robinson v. State, 
    596 S.W.2d 130
    , 132 (Tex. Crim. App. 1980); Chandler v.
    State, 
    855 S.W.2d 38
    , 41 (Tex. App.—Fort Worth 1993, no pet.). Appellant
    argues that the evidence was legally and factually insufficient because neither
    witness could identify him as the person who robbed the Paradise Liquor store.
    However, the Texas Court of Criminal Appeals has held that DNA evidence is
    admissible to prove identity. Glover v. State, 
    825 S.W.2d 127
    , 128 (Tex.
    Crim. App. 1992); King v. State, 
    91 S.W.3d 375
    , 380 (Tex. App.—Texarkana
    2002, pet. ref’d).
    At trial, Wafayee and Corral testified that they were unable to identify the
    robber because initially he wore a mask and because when the mask was
    8
    removed during the struggle, the robber’s face was covered with blood.3
    However, after the incident, the police collected evidence including the black
    ski mask, a blood swab, and scalp tissue with hair. 4 Carolyn Van Winkle, who
    worked in the Tarrant County Medical Examiner’s office, tested the blood on
    the ski mask and the blood sample and determined that the profiles obtained
    from the evidence were from the same male donor.5 Detective Nutt submitted
    the data into CODIS, but CODIS did not contain a match for the DNA until
    March 2006. Once CODIS found a match, Detective Nutt identified the match
    as appellant and obtained a buccal swab. Van Winkle tested the buccal swab
    and determined that the two DNA samples she previously had tested matched
    the DNA evidence from appellant’s buccal swab.        In 2007, at the State’s
    request, Van Winkle tested the scalp sample, which also matched appellant’s
    3
    … Wafayee also testified that he could not identify appellant in a photo
    line-up.
    4
    … Appellant also argues that the State did not properly identify the
    evidence collected at the scene as the items tested for DNA evidence.
    However, crime scene investigator Isbell testified that she collected, packaged,
    and sealed a blood sample, scalp tissue, and a black ski mask from the liquor
    store. Medical examiner Carolyn Van Winkle testified that she received the
    evidence in sealed conditions and that the seals had not been tampered with.
    Additionally, Isbell’s initials were on the seals of the exhibits.
    5
    … Van Winkle testified that she did not test the scalp sample because
    when she received multiple samples in one case, she limited the amount of
    samples that she tested.
    9
    DNA profile. Van Winkle testified that the likelihood that appellant was not the
    donor of the DNA evidence collected at the Paradise Liquor store was one in
    9.5 quadrillion.
    After reviewing all of the evidence, we conclude that it shows that the
    DNA samples obtained from the Paradise Liquor store, which included the ski
    mask, the blood swab, and the scalp tissue, matched appellant’s DNA profile
    collected from the buccal swab. Thus, the DNA evidence proved appellant’s
    identity as the perpetrator of the Paradise Liquor store robbery in March 2003.
    See 
    Glover, 825 S.W.2d at 128
    ; 
    King, 91 S.W.3d at 380
    . Therefore, viewing
    all of the evidence in the light most favorable to the verdict, we hold that a
    rational trier of fact could have found beyond a reasonable doubt that appellant
    committed aggravated robbery. See T EX. P ENAL C ODE A NN. § 29.03; 
    Jackson, 443 U.S. at 319
    , 99 S. Ct. at 2789; 
    Clayton, 235 S.W.3d at 778
    . When
    viewing all of the evidence in a neutral light, we hold that the evidence
    supporting the conviction is not so weak that a reasonable juror’s determination
    is clearly wrong and that any conflicting evidence does not greatly outweigh the
    evidence in support of the conviction so that a juror’s determination is
    unequivocally unjust. See 
    Watson, 204 S.W.3d at 414-15
    , 417; 
    Drichas, 175 S.W.3d at 799
    ; 
    Johnson, 23 S.W.3d at 11
    . We overrule appellant’s first and
    second points.
    10
    IV. Lesser Included Offense of Robbery
    In his third point, appellant argues that the trial court erred by not
    submitting the lesser included offense of robbery to the jury.
    A.    Standard of Review
    We use a two-step analysis to determine whether an appellant was
    entitled to a lesser included offense instruction. Hall v. State, 
    225 S.W.3d 524
    , 528 (Tex. Crim. App. 2007); Rousseau v. State, 
    855 S.W.2d 666
    ,
    672- 73 (Tex. Crim. App.), cert. denied, 
    510 U.S. 919
    (1993). First, the lesser
    offense must come within article 37.09 of the code of criminal procedure. T EX.
    C ODE C RIM. P ROC. A NN. art. 37.09 (Vernon 2006); Moore v. State, 
    969 S.W.2d 4
    , 8 (Tex. Crim. App. 1998).
    An offense is a lesser included offense if . . . it is established by proof of
    the same or less than all the facts required to establish the commission of the
    offense charged.” T EX. C ODE C RIM. P ROC. A NN. art. 37.09(1); see also 
    Hall, 225 S.W.3d at 536
    . This inquiry is a question of law. 
    Hall, 225 S.W.3d at 535
    .
    It does not depend on the evidence to be produced at the trial but is performed
    by comparing the elements of the offense as they are alleged in the indictment
    or information with the elements of the potential lesser included offense. 
    Id. at 525,
    535-36.
    11
    Second, some evidence must exist in the record that would permit a jury
    to rationally find that if the appellant is guilty, he is guilty only of the lesser
    offense. 
    Id. at 536;
    Salinas v. State, 
    163 S.W.3d 734
    , 741 (Tex. Crim. App.
    2005); 
    Rousseau, 855 S.W.2d at 672-73
    . The evidence must be evaluated in
    the context of the entire record. 
    Moore, 969 S.W.2d at 8
    . There must be
    some evidence from which a rational jury could acquit the appellant of the
    greater offense while convicting him of the lesser included offense. 
    Id. The court
    may not consider whether the evidence is credible, controverted, or in
    conflict with other evidence. 
    Id. Anything more
    than a scintilla of evidence
    may be sufficient to entitle a defendant to a lesser charge. 
    Hall, 225 S.W.3d at 536
    .
    B.    Analysis
    Appellant argues that he was entitled to a charge on the lesser included
    offense of robbery because there was some evidence that the gun he used was
    not capable of firing, and thus the gun could not qualify as a deadly weapon.
    The Texas Penal Code defines robbery as follows:
    (a) A person commits an offense if, in the course of committing
    theft . . . and with intent to obtain or maintain control of the
    property, he:
    (1) intentionally, knowingly, or recklessly causes bodily
    injury to another; or
    12
    (2) intentionally or knowingly threatens or places
    another in fear of imminent bodily injury or death.
    T EX. P ENAL C ODE A NN. § 29.02(a). Robbery becomes aggravated robbery if the
    offender uses or exhibits a deadly weapon. 
    Id. § 29.03.
    Appellant has satisfied the first requirement because robbery is a lesser
    included offense of aggravated robbery. Ex Parte Walton, 
    626 S.W.2d 528
    ,
    530 (Tex. Crim. App. 1981); Russell v. State, 
    804 S.W.2d 287
    , 289 (Tex.
    App.— Fort Worth 1991, no pet.). We must next determine if there is some
    evidence that if appellant is guilty, he is guilty only of the lesser offense. See
    
    Hall, 225 S.W.3d at 536
    ; 
    Salinas, 163 S.W.3d at 741
    ; 
    Rousseau, 855 S.W.2d at 672-73
    .
    The Texas Penal Code defines a deadly weapon as
    (A) a firearm or anything manifestly designed, made, or adapted for
    the purpose of inflicting death or serious bodily injury; or
    (B) anything that in the manner of its use or intended use is capable
    of causing death or serious bodily injury.
    T EX. P ENAL C ODE A NN. § 1.07(a)(17) (Vernon Supp. 2007). Thus, if the State
    proves at trial that a firearm was used in the commission of a robbery, the
    firearm meets the statutory definition of deadly weapon. Thomas v. State, 
    821 S.W.2d 616
    , 620 (Tex. Crim. App. 1991).          Additionally, the State is not
    required to verify that the firearm was actually capable of causing death, either
    13
    in the manner of its actual use or in the manner of its intended use. Id.; see
    also Walker v. State, 
    543 S.W.2d 634
    , 636-37 (Tex. Crim. App. 1976) (holding
    that a .45 automatic was a deadly weapon even though missing a firing pin and
    without a clip because it was manifestly designed and made for the purpose of
    inflicting death or serious bodily injury, which was evident to the senses and
    understanding of the victim).
    Here, the gun Corral wrestled away from appellant did not fire when
    Corral attempted to shoot appellant as he was leaving.         Investigator Isbell
    collected the gun, and Arlington Police Department range master Keith Scullin
    fired the gun and testified that it was operable. Regardless, even if the gun
    was not functioning at the time of the robbery, it qualified as a firearm and thus
    a deadly weapon. See 
    Thomas, 821 S.W.2d at 620-21
    ; 
    Walker, 543 S.W.2d at 637
    .   Because appellant used and exhibited a deadly weapon during the
    course of robbing the Paradise Liquor store, he cannot be guilty only of robbery;
    thus, the trial court did not err by refusing to submit the lesser included charge
    of robbery to the jury. See 
    Hall, 225 S.W.3d at 536
    ; 
    Thomas, 821 S.W.2d at 620
    ; 
    Walker, 543 S.W.2d at 636-37
    . We overrule appellant’s third point.
    14
    V. Conclusion
    Having overruled appellant’s three points, we affirm the trial court’s
    judgment.
    PER CURIAM
    PANEL F:     LIVINGSTON, GARDNER, and WALKER, JJ.
    DO NOT PUBLISH
    T EX. R. A PP. P. 47.2(b)
    DELIVERED: June 12, 2008
    15