James, Elliotte Gerard v. State

Affirmed and Memorandum Opinion filed October 13, 2005

Affirmed and Memorandum Opinion filed October 13, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-01042-CR

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ELLIOTTE GERARD JAMES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 957,546

M E M O R A N D U M    O P I N I O N

A jury found appellant Elliotte Gerard James guilty of aggravated sexual assault and assessed punishment at life imprisonment and a $10,000 fine.  In his sole issue, appellant challenges the factual sufficiency of the evidence supporting his conviction.  We affirm.

On June 28, 2003, S.B., the victim in this case, attended a nighttime parade on Westheimer Street in Houston.  At about 9:30 p.m., S.B., who was alone, began walking several blocks to a downtown bus stop to catch the last bus home, which left at 11:05 p.m.  As S.B. walked, appellant approached her and attempted to engage her in conversation, to which S.B. responded politely but minimally. S.B. avoided eye contact with appellant but observed that he was a black man wearing an open shirt with a distinct tattoo across his chest and had a small gauze patch on the right side of his face.  As appellant continued to walk with S.B., he began asking sexually-oriented questions, such as when she last had sex, which she laughed off and said she could not remember.  After walking further, S.B. noticed that it was around 11:10 p.m. and told appellant she had missed her bus.  Appellant told S.B. he would take her to a nearby gas station where she could call a cab and began directing her where to walk, repeatedly saying, A[W]alk this way.  It=s just a little farther.  Just walk this way.@  As appellant and S.B. passed a dimly-lit vacant lot, appellant struck S.B. in the head and pushed her face-down on the ground.  Appellant brandished a knife, warned S.B. that he would kill her if she screamed, and demanded her jewelry.  He bound S.B.=s hands and feet with straps he cut from her bag and then cut through the back of her jeans and underwear with his knife.  Appellant told S.B. that Asince [she] couldn=t remember the last time [she] had sex, [she] was going to remember this@ and proceeded to anally rape her.  After he finished, appellant left with S.B.=s jewelry and backpack.  S.B. subsequently freed herself, ran to a nearby apartment building, and screamed for help.  Apartment residents called the police, who took S.B. to the hospital for a sexual assault examination.  S.B. later described appellant and sketched his chest tattoo for the police.

About a month after the assault, the police asked S.B. to come to the station for a lineup.  At the five-person lineup, S.B. described a Afunny vibe@ and a funny feeling in her stomach when appellant entered, and she asked police to have the subjects recite the phrase, AJust walk this way; it=s just a little farther.@ S.B. did not react to the other subjects, but when appellant spoke she fell to her knees and told the police that was him.  S.B. said that after hearing appellant, she began crying and had to leave the building. 

At trial, S.B. indicated she could still hear appellant=s voice and knew it very well.  She testified that she was one hundred percent certain appellant was her assailant based on his voice and the Afeeling@ she had when he entered the lineup room.  Although S.B. did not identify appellant at trial, she identified a photograph of his tattoo as the one she had seen on her assailant. Sergeant D.O. Morgan, who was present at the lineup, confirmed that the photograph was of appellant=s tattoo and identified him for the jury.

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. at 484B85. 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.  Our evaluation should not intrude upon the fact-finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain, 958 S.W.2d at 408B09.

In his sole issue, appellant asserts that the evidence is Aso weak as to be factually insufficient to sustain the conviction.@ Specifically, appellant contends that the evidence is insufficient to identify appellant as S.B.=s assailant.

In Texas, voice identification is considered direct evidence and is sufficient to identify the defendant as the person who committed the crime, even without facial recognition.  See McInturf v. State, 544 S.W.2d 417, 419 (Tex. Crim. App. 1976) (holding that voice identification constitutes direct evidence); Reyes v. State, No. 14-00-01388-CR, 2002 WL 58836, at *6 (Tex. App.CHouston [14th Dist.] Jan. 17, 2002, no pet.) (not designated for publication) (AVoice identification, based on the perpetrator=s statements during the criminal episode, is sufficient to identify the defendant.@).  Although S.B. did not clearly see appellant=s face, she testified that she heard his voice as they walked a number of blocks and as he directed her where to walk.  Appellant spoke continually during the estimated hour or more he spent with S.B. and also spoke to her during the assault.  S.B. testified to her reaction after hearing appellant=s voice at the lineup, which was corroborated by Sergeant Morgan=s trial testimony, and she said she was certain appellant was her assailant.  Based on the strength of the State=s evidence, the jury could have found beyond a reasonable doubt that appellant was S.B.=s assailant.  See McInturf, 544 S.W.2d at 418B19 (affirming conviction without physical evidence where victim was blindfolded but heard rapist speak for half an hour and later identified his voice); Ward v. State, 505 S.W.2d 832, 834B35 (Tex. Crim. App. 1974) (approving identification where after hearing appellant=s voice in lineup victim Abroke down and started crying because she stated that she knew that was the man who raped her@); Williams v. State, 850 S.W.2d 784, 785B87 (Tex. App.CHouston [14th Dist.] 1993) (affirming conviction for telephone harassment based in part on voice identification from two separate phone conversations), aff=d,  895 S.W.2d 363 (Tex. Crim. App. 1994).

Appellant points to evidence that S.B.=s description of his tattoos and bandage on his face was not completely accurate.  Specifically, appellant claims S.B. erroneously described his chest tattoo as running diagonally instead of in a Apaw print@ pattern and said he was wearing gauze on the right side of his face whereas the only indication of a need for a facial bandage is a small tattoo on the left side of his face.  Some inaccuracies in a witness=s description do not automatically render the evidence insufficient.  See Escovedo v. State, 902 S.W.2d 109, 115 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d).  Rather, such details are for the jury to consider in assessing the credibility of a witness.  Id.  Appellant also complains that the State did not tie him to the assault through either DNA evidence or S.B.=s stolen property.  Such direct physical evidence is not necessary when the victim=s testimony sufficiently supports conviction.  See Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.CHouston [14th Dist.] 2005, no pet. h.).  Here, that includes not only S.B.=s identification of appellant=s voice and description of his tattoos, but also her estimate of his age, height, and weight.^[1]  Appellant further contends that the police lineup may have been suggestive but does not raise this as a separate issue.^[2]  Accordingly, we review only the factual sufficiency of the evidence before the jury. Finally, appellant argues that his lack of prior sexual offenses in his history of five felony convictions weakens the evidence against him.  However, we disagree with appellant=s contention that the lack of a prior sexual offense undermines the State=s case. 

We conclude the evidence is factually sufficient to identify appellant as S.B.=s assailant.  Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Opinion filed October 13, 2005.

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

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

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^[1]  S.B. described her assailant as about 34 years old, between 5'9"and 6' tall and 150 and 160 lbs.  At the time of the assault, appellant was 37 years old and 5'11" tall. His weight at arrest was 172 lbs.

^[2]  Appellant suggests that the Afunny vibe@ S.B. described at the lineup may have been the product of Apolice transmitt[ing] a variety of subconscious signals@ to her.  He also points to a lost videotape of the lineup and questions whether lineup subjects adequately covered their tattoos. In support of his contention, appellant argues that several still photographs taken after the lineup show that subjects may have worn short sleeves, thus exposing appellant=s arm tattoos and causing him to stand out among the lineup subjects.  However, the State introduced testimonial evidence about the lineup, including S.B.=s testimony that she did not see tattoos on any lineup subject and Sergeant Morgan=s testimony that lineup subjects wore long sleeves during the lineup and before the still photographs were taken.