Bass, Marcus Anthony v. State

• Court: Court of Appeals of Texas
• Decided: June 13, 2002
• Docket: 01-01-00254-CR
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-01-00254-CR

MARCUS ANTHONY BASS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 838382

O P I N I O N

A jury found appellant, Marcus Anthony Bass, guilty of aggravated robbery and assessed punishment at 30 years in prison. In two points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for aggravated robbery on the grounds that the State failed to prove that appellant used or exhibited a firearm. We affirm.

Facts

Eddie James Wilson lived alone at 734 Ridge in Crosby, Harris County, Texas. Wilson has known appellant his whole life; they grew up in the same neighborhood and never had any personal problems. On February 17, 2000, Wilson had his money out to pay bills when his friend Lionel White stopped by with appellant to see Wilson's brother. Wilson put his money aside while he spoke with White and appellant for five or 10 minutes until they left.

Later that evening, Wilson telephoned appellant and asked him to pick up some cigarettes and rolling papers. When appellant came back by Wilson's house, he was with Craig Windfont, whom Wilson also knew from their neighborhood. Windfont stayed in the car while appellant went into Wilson's house with a rifle in his hand. Wilson went to get money to reimburse appellant and, when he returned, appellant pointed the rifle at Wilson's face and demanded Wilson's money and cocaine. Appellant then shot Wilson in the face and frisked Wilson for money. Wilson heard appellant rummaging through his belongings. Wilson determined that appellant took about 30 or 40 dollars and a stack of 50 or 60 CDs.

After the shooting, the two struggled for the gun until Wilson passed out. When Wilson came to, he phoned 911 for help. Deputy Arthur Frazier with the Harris County Sheriff's Department responded to the call for an ambulance.

When Deputy Frazier arrived at the scene, Wilson was lying face-down on the floor of the living room with blood on his head and on the carpet. Wilson's face was swollen, and he could not speak well, but was able to say that appellant shot him. Deputy Frazier searched the residence and found several rocks of crack cocaine, a .22 caliber shell casing, and drops of blood, but found no additional ammunition, or the firearm used to shoot Wilson. There was nothing in the house to indicate that Wilson owned a firearm. Later at the hospital, Wilson again told Deputy Frazier that appellant shot him.

Wilson testified that the crack cocaine found at his house was his, but said he had not used any drugs that day because he was waiting for appellant to return.

A few days after the incident, appellant fled, with his girlfriend, from Harris County to Atlanta, Georgia, where he was arrested on unrelated charges and extradited to Houston. On direct examination, appellant said he was arrested in Atlanta for a traffic violation, but admitted, on cross-examination, that his arrest was related to the sale and possession of drugs.Legal Sufficiency In his first point of error, appellant contends the evidence is legally insufficient to sustain appellant's conviction for aggravated robbery because the State failed to prove he used or exhibited a firearm during the theft or attempted theft of property owned by Wilson. See Tex. Penal Code Ann. § 29.03(a)(1)-(2) (Vernon 1994). Appellant argues that there was no physical evidence that any property had been taken and denies using or exhibiting a firearm against Wilson. Appellant claims that Wilson was shot by accident during a struggle and that it was Wilson who produced the weapon. We apply the usual standard of review. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.--Houston [1st Dist.] 1997, no pet.).

To prove its charge of aggravated robbery, the State had to produce evidence that appellant either used or exhibited a deadly weapon during the theft or attempted theft of property owned by Wilson. See Tex. Penal Code Ann. § 29.03(a)(1)-(2) (Vernon 1994). Viewed in the light most favorable to the jury verdict, the facts show that appellant shot Wilson in the face with a .22 caliber rifle and took Wilson's cash and CDs. This evidence that appellant used or exhibited a deadly weapon during the theft satisfied the elements of aggravated robbery. Although appellant gave conflicting testimony, the evaluation of a witness's credibility and demeanor is left to the factfinder. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Appellant recognizes that credibility of a witness and conflicts between witnesses are matters to be decided by the factfinder, but argues that Wilson's credibility is so questionable that we should reverse and acquit. We disagree.

A rational trier of fact could have found the essential elements of aggravated robbery beyond a reasonable doubt. We hold that the evidence is legally sufficient to support the jury verdict. We overrule appellant's first point of error.

Factual Sufficiency

In his second point of error, appellant contends the evidence is factually insufficient to sustain his conviction. The test for factual sufficiency is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak, or so outweighed by contrary proof, as to undermine confidence in the jury's determination. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) We will reverse the factfinder's determination only if "a manifest injustice has occurred." Id. at 563 (quoting from Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000)).

Appellant's version of the facts conflicts with Wilson's testimony. Appellant contends that, when he returned to Wilson's home to deliver the cigarettes and rolling papers, he saw the money on the table and assumed it was his money that Wilson owed appellant for the purchase. Appellant testified that, as he sat at the table counting his money, Wilson came from the bathroom with a rifle and pointed it at him. Appellant attempted to wrestle the gun from Wilson and the gun accidentally went off and hit Wilson. Appellant stated he never intended to rob Wilson and did not take anything from the house.

Because the jury is the sole determiner of the facts, we must avoid substituting our judgment for that of the jury and must, therefore, defer to jury determinations that depend on credibility assessments and resolution of conflicts in the evidence. See Johnson, 23 S.W.3d at 7-9.

The jury could rationally have found appellant's testimony less than credible, not only because of the facts of the case, but also based on his extensive criminal record, his flight from Texas, and his lies about why he was arrested in Atlanta. Appellant's version of the facts does not so weaken or overwhelm the State's evidence as to render the judgment clearly wrong and manifestly unjust.

We overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Mirabal, Taft, and Smith. ⁽¹⁾

Do not publish. Tex. R. App. P. 47.4. ⁽²⁾

1. The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

2.