Gregory v. State

159 S.W.3d 236
CourtCourt of Appeals of Texas
DecidedMarch 2, 2005
DocketNo. 09-03-236-CR
StatusPublished
Cited by1 cases

This text of 159 S.W.3d 236 (Gregory v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gregory v. State, 159 S.W.3d 236 (Tex. Ct. App. 2005).

Opinions

OPINION

STEVE McKEITHEN, Chief Justice.

Harry Henry Louis, III appeals his conviction by a jury for the offense of Aggra[239]*239vated Robbery, alleged to have occurred on or about October 10, 2002. Appellant pleaded true to two prior felony convictions included in the indictment for enhancement purposes and the jury assessed punishment at confinement in the Texas Department of Criminal Justice-Correctional Institutions Division for a term of fourteen years. He raises four issues in his direct appeal to this Court:

1. The evidence was not sufficient for the jury to identify the Appellant as the actor in the offense.
2. The evidence was not sufficient for the jury to determine that a deadly weapon was used in the offense.
3. The evidence was not sufficient for the jury to determine that the complainant had been threatened by Appellant or placed in fear of imminent bodily injury or death.
4. The evidence was not sufficient for the jury to determine that the defendant was a party.

For each of the four issues, appellant argues the absence of both legally and factually sufficient evidence to sustain the verdict. The State acknowledges that none of the witnesses who testified at the trial could identify appellant as being involved in the robbery. Therefore, what evidence there is in the record tying appellant to the robbery is purely circumstantial.

LEGAL SUFFICIENCY REVIEW

The Fourteenth Amendment’s guarantee of due process of law prohibits a criminal defendant from being convicted of an offense and denied his liberty except upon proof sufficient to persuade a rational trier of fact of guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 362, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Gollihar v. State, 46 S.W.3d 243, 245-46 (Tex.Crim.App.2001). In assessing the legal sufficiency of the evidence to support a conviction, we consider all the record evidence in the light most favorable to the jury’s verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of all the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App.2004).

FACTUAL SUFFICIENCY REVIEW

In Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996), the Court of Criminal Appeals vested the Texas courts of appeals with the authority to review fact questions in criminal cases. Since Clewis, the appellate standard for reviewing fact questions has been refined several times. See Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App.2000), followed a year later by Goodman v. State, 66 S.W.3d 283 (Tex.Crim.App.2001), which was further clarified by Zuliani v. State, 97 S.W.3d 589 (Tex.Crim.App.2003). The latest revision of the appellate standard for reviewing factual sufficiency issues is set out in Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App.2004).

In Zuniga, the Court attempted to “resolve some of the confusion created by the standard that has developed since Cle-wis[J” Zuniga, 144 S.W.3d at 484. While the Zuniga Court did not intend to alter the standards of review which have evolved since Clewis, it recognized, and apparently corrected, a significant deficiency in the various forms the standard took from Clewis through Zuliani. Id. at 484r-85. The Court presented, with explanation, the current standard for reviewing factual sufficiency issues as follows:

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified [240]*240in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and the evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Id. (footnote omitted).

TRIAL EVIDENCE

Because proof of appellant’s identity as one of the perpetrators of the robbery was purely circumstantial, a somewhat detailed rendition of the evidence presented to the jury is in order. Essentially, the offense consisted of two masked individuals dressed in blue jumpsuits, and carrying what appeared to be firearms, robbing the manager of the Domino’s Pizza establishment around closing time on October 10, 2002. The State’s witnesses consisted of eight persons, four employees of Domino’s Pizza and four officers from the City of Port Arthur Police Department. Two witnesses were called by appellant in his defense, but appellant did not testify. From a close examination of the record, there appears to be no dispute among the Domino-employee witnesses as to the details of the robbery. In addition to an undetermined amount of cash, a number of checks were also stolen. The robbers fled the area on foot, running in a south to southeasterly direction. We now identify each of the witnesses and describe their testimony, especially any testimony bearing on the identity of the perpetrators apart from the general description noted above.

The State’s first witness was David Hoffpauir, the manager of the Domino’s store, and the victim alleged in the indictment. Hoffpauir testified that on the evening in question he was in the store’s office when he heard noises coming from the front of the store. As he headed to the front to investigate, Hoffpauir encountered a person wearing a mask, carrying “a gun,” and wearing a blue jumpsuit. The masked gunman directed Hoffpauir to return to the office and Hoffpauir complied as he feared for his safety. As there was no money in the office, the masked gunman directed Hoffpauir to walk to the front of the store. As Hoffpauir neared the front of the store, he encountered a second individual who was also armed, wearing a mask and dressed in a jumpsuit. Hoffpauir proceeded to the front counter where the money-drawer was located and opened the drawer for the robbers. At that point, Hoffpauir was directed by one of the gunmen to get on the floor. Within a matter of seconds, the gunmen took money from the drawer and left the store. Hoffpauir did not see in what direction the men ran. After the gunmen were gone, Hoffpauir locked the doors to the store and telephoned “911.” While Hoffpauir was on the telephone, an off-duty police officer, later identified as Kevin Schexni-der, arrived at the scene.

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Related

Louis v. State
159 S.W.3d 236 (Court of Appeals of Texas, 2005)

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159 S.W.3d 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregory-v-state-texapp-2005.