in the Matter of L.W., a Child

• Court: Court of Appeals of Texas
• Decided: July 3, 2008
• Docket: 13-07-00230-CV
• Status: Published

Opinion

NUMBER 13-07-00230-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE MATTER OF L.W., A CHILD

On appeal from the County Court at Law No. 2 of Victoria County, Texas, Sitting as a Juvenile Court.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Rodriguez

Appellant, L.W., was adjudicated delinquent after a jury found he committed the

offense of robbery. See TEX . PENAL CODE ANN . § 29.02 (Vernon 2006). After a disposition

hearing, the trial court committed L.W. to the Texas Youth Commission for an

indeterminate period of time not to exceed his twenty-first birthday. On appeal, L.W.

challenges the factually sufficiency of the evidence. We affirm. I. BACKGROUND

On December 18, 2006, Laura Rogers left her apartment at about 6:45 a.m. to go

jogging. As she was jogging, a young man approached Rogers and knocked her to the

ground by shoving her on the shoulder. Rogers testified that she felt something hard on

her back, and that the young man told her that if she did not give him $700 he was going

to "empty a clip on" her. They began walking to her apartment because the young man

wanted her debit card. As they reached the apartment complex, they encountered Wade

Wright, an employee of the complex. Wright testified that he was picking up trash around

the complex when he was approached by Rogers and a young man. At trial, both Rogers

and Wright identified L.W. as the young man. After the jury found the allegation in the

State's petition to be true, the trial court sentenced L.W. to the Texas Youth Commission.

This appeal ensued.

II. STANDARD OF REVIEW AND APPLICABLE LAW

In a factual sufficiency review, we view all of the evidence in a neutral light in order

to determine whether a jury was rationally justified in finding guilt beyond a reasonable

doubt. Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006). Evidence may

be factually insufficient if: (1) it is so weak as to be clearly wrong and manifestly unjust, or

(2) the jury's verdict is against the great weight and preponderance of the available

evidence. Id. at 414-15. "An appellate court must give deference to a jury's decision

regarding what weight to give contradictory testimonial evidence because the decision is

most likely based on an evaluation of credibility and demeanor, which the jury is in the

better position to judge." Lancon v. State, No. 0182-07, 2008 Tex. Crim. App. LEXIS 640,

2 *18 (Tex. Crim. App. May 14, 2008). Unless we can say with some objective basis in the

record that the great weight and preponderance of the evidence contradicts the jury's

verdict, we will not reverse the judgment as factually insufficient. Watson, 204 S.W.3d at

417. We apply the criminal law standard for factual insufficiency in juvenile cases. In re

B.P.H., 83 S.W.3d 400, 407 (Tex. App.–Fort Worth 2002, no pet.).

An individual commits robbery if, in the course of committing theft, he "intentionally

or knowingly threatens or places another in fear of imminent bodily injury or death." TEX .

PENAL CODE ANN . § 29.02 (a)(2).

III. ANALYSIS

By his sole issue, L.W. contends that the evidence presented by the State is

insufficient and asks that we reverse and remand this case to the trial court for a new trial.

Based on his argument and prayer, we construe L.W.'s issue as a challenge to the factual

sufficiency of the evidence. Specifically, L.W. asserts that (1) Rogers's and Wright's

identification of L.W. was tainted, and (2) there are inconsistencies between the witnesses'

testimony, and between the witnesses' testimony and the police report.1

A. In-Court Identification

Appellant challenges the in-court identifications. However, appellant did not file a

pre-trial motion to suppress the in-court identifications or object to the evidence when it

was offered at trial. Therefore, L.W. failed to preserve his challenge to the admissibility of

the in-court identifications for appellate review. See Perry v. State, 703 S.W.2d 668, 670-

1 In support of his factual sufficiency argum ent, L.W . also generally com m ents that "[t]here was another possible suspect for the alleged robbery that the police never investigated." However, we conclude that L.W . has waived this contention by neither citing to authority nor supporting the assertion with a clear and concise argum ent. See T EX . R. A PP . P. 38.1(h).

3 71 (Tex. Crim. App. 1986) ("We note that Texas courts stringently apply the

contemporaneous objection rule in the context of improper identification. Without an

objection to an in-court identification or to testimony based on an impermissibly suggestive

identification procedure, no error is preserved.").

B. Alleged Inconsistencies

L.W. argues that inconsistencies in the testimony render the evidence insufficient

to support the conviction.2 We disagree. The alleged inconsistencies or conflicts between

Wright's statement to police and Rogers's and Wright's trial testimony were before the jury.

As the judges of the facts, the credibility of the witnesses, and the weight to be given to the

testimony, we must give due deference to jury's determinations concerning the weight

given to contradictory testimonial evidence and the jury's evaluation of the credibility of the

evidence. See Lancon, 2008 Tex. Crim. App. LEXIS at **12-13, 18; Bowden v. State, 628

S.W.2d 782, 784 (Tex. Crim. App. 1982). Moreover, as the trier of fact, the jury is free to

believe or disbelieve any portion of a witness's testimony. Bowden, 628 S.W.2d at 784.

In this case, the jury chose to believe Rogers's testimony that L.W. had a gun when he

demanded money and that L.W. scared her because he threatened to kill her. The jury

also chose to believe Wright when he testified that he saw L.W. with Rogers and that she

told him L.W. had a gun, wanted money, and threatened to kill her.

2 L.W . points to the following inconsistencies and discrepancies in the testim ony: (1) Rogers testified that the assailant was 5'7" tall, and W right testified that the assailant was 5'10" tall; (2) Rogers testified that she passed W right before the attack at approxim ately 6:50 a.m ., while W right testified he did not start working until 7:00 a.m .; (3) W right testified that he did not tell police that he saw L.W . shove Rogers, but the police report states that he did; (4) in his police statem ent, W right stated that Rogers "ran away," but Rogers and W right both testified that she did not run away; (5) Rogers testified that the assailant had a swollen right eye, but W right did not m ention a swollen eye; (6) W right testified that the assailant had a scar on his nose, but Rogers did not; (7) W right testified that L.W . sm elled of alcohol, but did not m ention it in his police statem ent; and (8) W right testified that he knew L.W . as a previous tenant, but W right did not tell Rogers that he knew the assailant.

4 After viewing all of the evidence in a neutral light, we conclude that the evidence is

not so weak that the trial court's verdict seems clearly wrong or manifestly unjust, and the

verdict is not against the great weight and preponderance of the evidence. See Watson,

204 S.W.3d at 414-15. Therefore, the evidence is factually sufficient to support the verdict.

We overrule L.W.'s sole issue.

IV. CONCLUSION

We affirm.

NELDA V. RODRIGUEZ Justice

Memorandum Opinion delivered and filed this 3rd day of July, 2008.