Jeffrey Lee v. State

Opinion

ACCEPTED 04-14-00256-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/4/2015 4:11:45 PM KEITH HOTTLE CLERK

NO.

04-­‐14-­‐00256-­‐CR

IN THE COURT OF APPEALS FILED IN 4th COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 3/4/2015 4:11:45 PM KEITH E. HOTTLE

Clerk

JEFFREY LEE,

Appellant

V.

THE STATE OF TEXAS

Appellee

ON APPEAL FROM THE 187th DISTRICT COURT

OF BEXAR COUNTY TEXAS

CAUSE NUMBER 2012-­‐CR-­‐6806

BRIEF FOR THE APPELLANT

EDWARD F. SHAUGHNESSY

206 E. Locust Street

San Antonio, Texas 78212

(210) 212-­‐6700

(210) 212-­‐2178 (FAX)

Shaughnessy727@gmail.com

SBN 18134500

ORAL ARGUMENT WAIVED

ATTORNEY FOR APPELLANT

PARTIES AND COUNSEL

TRIAL COUNSEL FOR THE STATE:

DAVID LUNAN & DARYL HARRIS

Assistant Criminal District Attorneys

101 W. Nueva

San Antonio, Texas 78205

TRIAL COUNSEL FOR APPELLANT:

THERESA CONNOLLY

106 S. St. Mary’s

APPELLANT’S ATTORNEY ON APPEAL:

EDWARD F. SHAUGHNESSY, III

San Antonio, Texas

(210) 212-­‐2178 Fax

TRIAL JUDGE:

RAYMOND ANGELINI

187th Judicial District

Atascosa County, Texas

ii TABLE OF CONTENTS

PAGE(S)

Parties and Counsel…………………………………………………………………………………ii

Table of Contents……………………………………………………………………………………iii

Table of Authorities…………………………………………………………………………………iv

Brief for the Appellant………………………………………………………………………………5

Summary of the Argument…………………………………………………………………………7

Appellant’s Sole Point of Error……………………………………………………………………8

Conclusion and Prayer………………………………………………………………………………16

Certificate of Service………………………………………………………………………………….17

Certificate of Compliance……………………………………………………………………………18

iii TABLE OF AUTHORITIES

STATE CASE(S)

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)……………………………………………...……..13

Dixon v. State 541 S.W.2d 437 (Tex. Crim. App. 1976)……………………………...………………………..15

Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011)………………………………………………………..13

Gormany v. State, 640 S.W.2d 303 (Tex. Crim. App. 1982)…………………………………………………15

Jackson v. Virginia 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979)……………………………….13

Moore v State, 640 S.W.2d 303 (Tex. Crim. App. 1982)………………………………………………..…….15

Padilla v. State, 326 S.W.3d 195 (Tex. Crim. App. 2010)………………………………………………….…13

Spencer v. State, 628 S.W.2d 220 (Tex. App.-­‐Corpus Christi, 1982, pet. ref’d.)……………………….15

Whatley v. State, 445

S.W.3d 159, (Tex. Crim. App.

2014)………………………………………………...13

Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013)………………………………...……...….………13

STATUTE(S) AND CODE(S)

Tex. Penal Code Ann. § 29.03 (West 2014)……………………………………………………………………….8

iv NO. 04-­‐14-­‐00256-­‐CR

§ COURT OF APPEALS, FOURTH

§

§ COURT OF APPEALS DISTRICT

THE STATE OF TEXAS,

§ SAN ANTONIO, TEXAS

TO THE HONORABLE COURT OF APPEALS:

Now comes the appellant, Jeffrey Lee, and files this brief in Cause

No. 04-­‐14-­‐00256-­‐CR. The appellant appeals from a judgment of

conviction, entered against him on April 4, 2014. (C.R.-­‐50,51) The

appellant was indicted by a Bexar County Grand Jury on August 27,

2012 for the offenses of Aggravated Robbery (Repeater) in cause

number 2012-­‐CR-­‐6806. (C.R.-­‐5) The appellant exercised his right to a

jury trial. The appellant was found guilty, by the jury, of the offense as

charged in the indictment. (C.R.-­‐48) The appellant’s punishment was

assessed by the jury, at twenty-­‐five years in confinement in the Texas

Department of Criminal Justice-­‐Institutional Division as a repeat

5 offender. (C.R.-­‐50, 51) Notice of appeal was filed thereafter and this

appeal has followed. (C.R.-­‐61)

SUMMARY OF ARGUMENT

The evidence presented by the State of Texas was legally

insufficient to prove that the appellant was the perpetrator of the

offense due to the failure of the complainant to identify the

defendant/appellant as the actor who committed the acts alleged in the

indictment.

7 APPELLANT’S S0LE

POINT OF ERROR

The evidence is legally insufficient to support the judgment of

conviction for the offense alleged in the indictment.

STATEMENT OF APPLICABLE FACTS

As noted above the appellant was indicted by the Bexar County

grand jury for the offense of Aggravated Robbery.1 The indictment

alleged in pertinent part: “on or about the 15th day of January, 2012,

Jeffrey Lee, while in the course of committing theft of property and with

intent to maintain control of said property did intentionally and

knowingly threaten and place Javier Muro in fear of imminent bodily

injury and death, and the defendant did use and exhibit a deadly

weapon, to wit: a firearm.” (C.R.-­‐5)

In support of the allegations in the indictment the Sate produced

the testimony of the complainant/victim, Javier Muro2. (R.R.4-­‐18)

Muro

proceeded to testify as to the events that occurred on the night of

January 12, 2012.

According to Muro, he along with his co-­‐worker, Gilda

1 Tex. Penal Code Ann. § 29.03 (West 2014). 2 Hereinafter referred to as Muro. 8 Hernandez, had completed the closing of their place of employment3 at

roughly 9:30 P.M. and were in the parking lot of the store, when an

individual approached Hernandez, who was in a car being driven by her

sister. (R.R.4-­‐22, 29)

The individual in question was armed with a gun

and was aiming it at Gilda. (R.R.4-­‐29, 30)

Gilda and the driver then fled

the scene in their vehicle. (R.R.4-­‐30) At that point the actor approached

Muro who was afoot. (R.R.4-­‐30) Before Muro was able to enter his

vehicle the actor aimed the weapon at Muro and demanded his wallet.

(R.R.4-­‐30) The wallet was then given to the actor.

(R.R.4-­‐30) The actor

then demanded that Muro open the store and the two then proceeded

into the store, at which time the actor demanded that Muro open the

store’s safe. (R.R4-­‐30, 31) Due to a time lock on the main safe the safe

could not be opened immediately.

Consequently, the cash drawers were

given to the actor who removed an unknown amount of cash from the

cash drawers and thereafter fled the scene on foot. (R.R.4-­‐35, 36, 55)

With respect to the question of the identity of the actor, Muro

related that the perpetrator was a black man wearing a mask over his

face that revealed only his eyes, which he described as “big wide” or

“bug-­‐eyed”. (R.R.4-­‐39) Shortly after the actor had departed the scene,

3 A Dollar General store on Walzem Road. (R.R.4-19) 9 law enforcement officers arrived at the scene. (R.R.4-­‐57) At that time

Muro gave a statement to the investigating officers.

The following day

law enforcement came to the store with a “photo array” in an effort to

obtain an identification of the actor. (R.R.4-­‐65, 66) After using a folder

to cover the lower half of the six faces displayed in the photo array Muro

chose photo number two as the one depicting his assailant and

remarked to the officer: “This is the guy”. (R.R.4-­‐66) Muro then

proceeded to circle his selection on the photo array. (R.R.4-­‐67) Muro

was never asked by the prosecutor whether the individual who had

committed the assault/robbery on him on the night in question, was the

defendant present in court.

As a result, Muro never identified the

defendant/appellant as the actor who had committed the offense as

outlined by Muro.

Muro’s co-­‐worker, Gilda Hernandez4 also testified on behalf of the

prosecution. (R.R.4-­‐94) Hernandez also testified that the actor was a

black man wearing a hoodie sweatshirt.

Some two weeks later,

Hernandez was asked to participate in a photo array identification

procedure conducted by investigators with the Bexar County Sheriff’s

Department.

At that time Hernandez viewed a photo array that

4 Hereinafter referred to as Hernandez. 10 contained six photographs and asked whether the actor was depicted in

any of the photographs. Hernandez then informed that the actor was

depicted in photo number two which she then circled and initialed.

(R.R.4-­‐105, 106)

Once again, the witness was not asked whether the

individual who was the actor on the night in question was in fact the

defendant/appellant.

Moreover, Hernandez was not asked whether the

individual whom she identified as photo number two was the

After obtaining fingerprints from the scene, later shown to be

those of the defendant’s, members of the Sheriff’s Department were able

to locate a photograph of the defendant/appellant which was used to

compile the above-­‐described photo arrays. (R.R.5-­‐30 thru 44)

The final witness to relate information related to the identity of

the actor was Detective Ward of the Bexar County Sheriff’s Department.5

(R.R.5-­‐60) Ward related that he had sought and obtained an arrest

warrant for an individual named Jeffrey Lee after obtaining a

photograph of an individual whose fingerprints resulted in a “hit” on a

computer generated fingerprint search which utilized the fingerprints

obtained at the scene of the offense. (R.R.5-­‐73) Ward also related that he

5 Hereinafter referred to as Ward. 11 had utilized a photo spread to obtain possible identifications of the

perpetrator from Muro and Hernandez. (R.R.5-­‐76, 84) Ward related that

those two had both indicated that the individual depicted in photo

number two was the perpetrator. (R.R.5-­‐76, 77) Ward also related that

the person identified in photo number two, by Muro, was an individual

named Jeffrey Lee and the person depicted in that photograph was the

defendant sitting in the courtroom.

(R.R.5-­‐86) He related the same

scenario regarding the witness Hernandez. (R.R.5-­‐87)

It is crucial to note that the State’s multiple stage attempt at

identifying the appellant/defendant as the perpetrator of the robbery

did not include any evidence that the individual purportedly depicted in

photo number two was the same Jeffrey Lee that had committed the

offense in question.

In order for the fact-­‐finder to conclude that the

defendant/appellant was the Jeffrey Lee arrested and identified through

the use of the photograph in question the record would have to contain

evidence that the photograph in question was that of the

That evidence is lacking.

What is contained in the

record is testimony that the individual purportedly depicted in the

photograph was named Jeffrey Lee and that an individual bearing that

name was in the courtroom.

ARGUMENTS AND AUTHORITIES

STANDARD OF REVIEW

In reviewing the legal sufficiency of the evidence to support a

conviction a reviewing court is mandated to consider all of the evidence in

a light most favorable to the verdict and determine whether, based on that

evidence and reasonable inferences therefrom a rational fact finder could

have found the elements of the offense beyond a reasonable doubt.

Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013); Gear v. State,

340 S.W.3d 743 (Tex. Crim. App. 2011). See: Jackson v. Virginia 443 U.S.

307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979). A reviewing court is required to

defer to the jury’s credibility determinations because the jury is sole arbiter

of the credibility of the witnesses Winfrey v. State, id. That standard gives

full play to the responsibility of the jury to fairly resolve conflicts in the

testimony, to weigh the evidence and to draw reasonable inferences from

basic facts to ultimate facts. Whatley v. State, 445 S.W.3d 159, (Tex. Crim.

App. 2014). The presence of conflicting inferences during the course of a

trial gives rise to a presumption that the trier of fact resolved the conflicts

in the favor of the prosecution. Padilla v. State, 326 S.W.3d 195 (Tex.

Crim. App. 2010). The fact-finder is the exclusive judge of the credibility of

the witnesses and of the weight to be assigned to their testimony. Brooks v.

State, 323 S.W.3d 893 (Tex. Crim. App. 2010).

The ultimate fact that was to be resolved in the instant case was

the identity of the individual that wielded the gun at the Dollar General

on the night in question.

Neither of the two witnesses to that event

related that the appellant/defendant present in the courtroom was that

individual.

Hence the evidence is legally insufficient unless a reasonable

inference can be drawn that the person identified through the photo

array was the individual in the courtroom.

That inference could be

drawn only if the evidence revealed that the photograph in question

was of the individual in the courtroom.

Ward

testified only that the two witnesses had identified the person in the

photograph as their assailant and the photograph appeared to be that of

the individual in the courtroom.

It is not a reasonable inference that,

because of the existence of a photograph of a person, who might in fact

be the accused, that the photograph is in fact that of the accused.

That

fact could have potentially been supplied by one or both of the

witnesses.

It was not.

Officer Ward could have taken a “booking” photo

of the individual who had been arrested and charged with the offense in

question and inquired of the witnesses if the individual depicted in the

booking photograph was the individual who had committed the assault

conduct that formed the basis for the indictment.

He did not.

The evidence presented by the State, on the issue of identification,

required the jury to infer facts that were not reasonable: that being that

the identifying photo was that of the individual who had been arrested

for the offense in question and appeared in court to answer the

That inference amounts to an unreasonable one and should

not be sanctioned by this Court.

As a result the evidence is legally

insufficient to support the judgment of conviction. See: Gormany v. State,

640 S.W.2d 303 (Tex. Crim. App. 1982); Moore v State, 640 S.W.2d 303

(Tex. Crim. App. 1982); Dixon V. State 541 S.W.2d 437 (Tex. Crim. App.

1976); Spencer v. State, 628 S.W.2d 220 (Tex. App.-­‐Corpus Christi, 1982,

pet. ref’d.).

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant, prays that this

Court, reverse the judgment of the trial Court and remand the cause for

the entry of a judgment of acquittal.

Edward F. Shaughnessy, III EDWARD F. SHAUGHNESSY, III

206 E. Locust

Attorney for the appellant

CERTIFICATE OF SERVICE

I, Edward F. Shaughnessy, III , attorney for the appellant, hereby

certify that a true and correct copy of the instant brief was served on

Nicholas LaHood, attorney for the appellee, by United States Mail, by

mailing the document to 101 W. Nueva, San Antonio, Texas 78205 on

this the _4_ day of March, 2015.

17 CERTIFICATE OF COMPLIANCE

I, Edward F. Shaughnessy, III, attorney for the appellant, hereby

certify that the instant document contains 2281 words.