David Bernard Shores v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN







NO. 3-93-368-CR



DAVID BERNARD SHORES,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 42,301, HONORABLE RICK MORRIS, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of aggravated robbery. Tex. Penal Code Ann. § 29.03 (West Supp. 1994). The district court assessed punishment at imprisonment for twenty years.

In his only point of error, appellant contends the evidence is factually insufficient to sustain the conviction. See Stone v. State, 823 S.W.2d 375 (Tex. App.--Austin 1992, pet. ref'd as untimely filed). ⁽¹⁾ When conducting a factual-sufficiency review, we do not view the evidence in the light most favorable to the verdict. Instead, we consider all the evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319 (Tex. App.--Austin 1992, no pet.). We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Stone, 823 S.W.2d at 381; Orona, 836 S.W.2d at 321.

Frank Pedroza testified that when he stopped at a stop sign on the night of October 12, 1992, a man he identified as codefendant Derrick Undra Brown pulled in front of his car on a moped. A second man, identified as appellant, appeared at the window on the passenger's side of Pedroza's car and ordered him out. Pedroza refused. A third man, identified as codefendant Will Kendrick Johnson, began to hit Pedroza through the open driver's side window. Appellant opened the car door and began to kick Pedroza. Brown produced a pistol, pointed it at Pedroza's face, and threatened to shoot him if he did not cooperate. Appellant took Pedroza's wallet from the dashboard and the three men fled.

Pedroza identified his assailants in two photographic lineups shown to him shortly after the offense. These photo spreads were introduced in evidence, and Pedroza had some difficulty linking appellant and Johnson with their photographs. Pedroza's confusion had to do with which of the two men was on the passenger's side of the car and which was on the driver's side. The record suggests that Pedroza's confusion was due in part to a significant change in appellant's appearance. Pedroza never failed to identify appellant and Johnson as two of the men who assaulted him, however.

Brown's girlfriend, Cheryle Kamas, testified that Brown and appellant were with her in her apartment at the time of the attack on Pedroza. A Temple police officer testified in rebuttal that Kamas's reputation for truth and veracity was bad. Another defense witness, Harriet Garnett, testified that she saw Johnson in a Killeen night club at the time of the offense.

It was the jury's responsibility as trier of fact to determine the credibility of the witnesses and the weight to give their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). By their verdict, the jury indicated that they believed Pedroza and disbelieved the defense witnesses. The jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The point of error is overruled.

The judgment of conviction is affirmed.

Before Justices Powers, Jones and Kidd

Affirmed

Filed: February 9, 1994

Do Not Publish

1. The State asserts that this point was not preserved for review. In a civil case, a factual sufficiency point must be preserved by a motion for new trial. Tex. R. Civ. P. 324(b). This is not necessary in a criminal case. Tex. R. App. P. 30(a). The point of error is properly before us.