ACCEPTED 12-14-00005-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 3/3/2015 12:10:35 AM CATHY LUSK CLERK
Cause No. 12-14-00005-CR
RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS In the Court of Appeals for the 3/3/2015 12:10:35 AM Twelfth Judicial District at Tyler, Texas CATHY S. LUSK Clerk
Joseph Finley, Appellant 3/3/2015
v.
State of Texas, Appellee
On Appeal from Cause No. 2013-0140 in the 217th Judicial District Court of Angelina County, Texas
State’s Brief
April Ayers-Perez Assistant District Attorney Angelina County D.A.’s Office P.O. Box 908 Lufkin, Texas 75902 (936) 632-5090 phone (936) 637-2818 fax State Bar No. 24090975 aperez@angelinacounty.net
Oral Argument Not Requested Identity of Parties and Counsel
Joseph Finley, Appellant Layne Thompson Attorney for the State (trial) John Reeves Angelina County District Attorney’s Counsel for Joseph Finley (trial) Office 1007 Grant Ave. P.O. Box 908 Lufkin, Texas 75901 Lufkin, Texas 75902
John Tunnell April Ayers-Perez Counsel for Joseph Finley (appeal) Attorney for the State (appeal) P.O. Box 414 Angelina County District Attorney’s Lufkin, Texas 75902 Office P.O. Box 908 Lufkin, Texas 75902
Table of Contents
Identity of Parties and Counsel ................................................................................. ii
Table of Contents ..................................................................................................... iii
Index of Authorities .................................................................................................. v
Statement Regarding Oral Argument...................................................................... vii
Issues Presented ...................................................................................................... vii
Statement of Facts ..................................................................................................... 1
Summary of the Argument........................................................................................ 4
Argument .................................................................................................................. 5
Reply Issue #1: The evidence is legally sufficient, beyond a reasonable doubt, to support the Appellant’s conviction for Aggravated Robbery .................................................................................... 5
Applicable law ...................................................................................... 5
Standard of Review .............................................................................. 6
The identification of the defendant was permissible ............................ 8
Reply Issue #2: Appellant’s verdict of conviction was made in open court in front of Appellant and no fundamental error has occurred ......................................................................................................... 9
Prayer ...................................................................................................................... 10
Certificate of Compliance ....................................................................................... 11
Certificate of Service .............................................................................................. 11
Index of Authorities
Cases Page
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2012) ....................................... 8
Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2004) ........................................... 7
Harris v. State, 827 S.W.2d 949 (Tex. Crim. App. 1992) ........................................ 6
Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................. 7
Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998)................................... 8, 9
Loserth v. State, 985 S.W.2d 536 (Tex. App.—San Antonio 1998) ..................... 8, 9
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ......................................... 7
Manson v. Brathwaite, 432 U.S. 98 (1977) .............................................................. 6
Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013) ....................................... 8
Statutes
Tex. Pen. Code Ann. § 29.02(a)(2) (West 2011). ..................................................... 6
Tex. Pen. Code Ann. § 29.03(a)(3)(A) (West 2011). ............................................... 6
TEX. CODE CRIM. PROC. ANN. art. 37.06 (West 2011). ........................................... 10
Rules
Tex. R. App. P. 39.1................................................................................................ vii
Statement Regarding Oral Argument
Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is
unnecessary, as the facts and legal arguments are adequately presented in the briefs
and record and the decisional process would not be significantly aided by oral
argument.
Issues Presented
Reply Issue #1: The evidence is legally sufficient, beyond a reasonable
doubt, to support the Appellant’s conviction for Aggravated Robbery.
Reply Issue #2: Appellant’s verdict of conviction was made in open court
in front of Appellant and no fundamental error has occurred.
Statement of Facts
On November 17, 2012 Shirley Williamson and her daughter, Amy Lair,
went shopping at Beall’s Department Store at the Lufkin Mall.1 After shopping,
while walking to their car, Williamson noticed a young, black man standing at the
door as they exited the mall, and that man began to follow them.2 Although
Williamson was unable to get a good look at the man, she did notice, when he
grabbed her purse, that he was wearing a black jacket.3 Lair, however, got a much
better look at the man as they were leaving the mall.4 The man was about ten feet
from Lair and was wearing a black jacket, blue jeans, and a purple and white hat.5
When the man robbed Williamson, Lair stated that he was wearing the same purple
hat and black jacket, and that is how she was able to identify the robber as the
same person whom she saw as she was leaving the mall.6 As Williamson and Lair
were walking to their car the man “reached his hand around my right side and
grabbed my purse, pulled me to the ground, and started dragging me because I
wouldn’t let go of the purse.”7 Williamson eventually let go of the purse after it
1 II R.R. at 22. 2 Id. at 23. 3 Id. at 24. 4 Id. at 42. 5 Id. at 42-43. 6 Id. at 45. 7 Id. at 24.
was jerked out of her hands because the robber was stronger than her.8 Williamson
suffered from physical pain when she landed on her right shoulder and right knee,
resulting in scrapes to her knee and a fracture of her right shoulder.9 The robber
was successful in taking Williamson’s purse, which included her billfold, credit
cards, cash, and a checkbook.10 Eventually, one of the checks that was stolen from
Williamson, identified as check number 9753, turned up at a local establishment.11
The check, which Williamson had signed and left blank for future use, now had the
name “Joseph Finley” written into the payee line.12 Not only had Williamson
never written a check to anybody named Joseph Finley, but she did not even know
anybody named Joseph Finley prior to this incident.13 One of the credit cards in
Williamson’s purse that was stolen was also recovered after it was used at a local
grocery store.14 Officer Hennigan of the Lufkin Police Department contacted the
local grocery store and was able to receive the date of birth of the person who used
the credit card stolen from Williamson.15 That date of birth tracked back to a
“Joseph Finley” in the Lufkin Police Department database.16 Detective Standridge
8 Id. at 35. 9 Id. at 24-27. 10 Id. at 27. 11 Id. at 29-30. 12 Id. at 30-31. 13 Id. at 31. 14 Id. at 71. 15 Id. at 74. 16 Id.
of the Lufkin Police Department viewed the surveillance tapes from the local
grocery store where Williamson’s credit cards were used and identified the
Appellant, as well as a Trent Land, as the two people using Williamson’s credit
card.17
In December 2012, a month after the robbery occurred, Lair learned through
the local newspaper, the Lufkin Daily News, that a man had been arrested for
similar robberies and had been charged with the robbery on Williamson.18 The
man identified in the newspaper was the Appellant, Joseph Finley.19 A picture of
Finley also appeared in the paper, but because of the quality and appearance of the
picture, Lair was unable to conclusively identify the Appellant from the
photograph in the newspaper.20 A few months later Lair was asked by Detective
VanEman to look at a photo lineup to try and identify the person who robbed
Williamson in front of Lair.21 Detective VanEman had been asked by Detective
Standridge to show Lair the photo lineup.22 Detective VanEman was not aware of
who the suspect was in the lineup, and showed Lair the lineup in his office.23 Lair
identified one of the photographs of being the person who she believed to be who
17 Id. at 102-03. 18 Id. at 47. 19 Id. at 48. 20 Id. 21 Id. at 48-50. 22 Id. at 66. 23 Id. at 65-66.
robbed Williamson, and the person she identified was the Appellant.24 Lair then
went on to identify the person who robbed Williamson as the Appellant by making
a courtroom identification of him.25 Lair clarified that, although she saw the
Appellant’s picture in the newspaper prior to the photo lineup, it did not affect her
identifying the Appellant from the photo lineup because of the quality of the
picture in the newspaper and the difference of appearance in the Appellant.26
Shortly before the Non-Jury Trial of the Appellant, Larry Cosby met with
the Appellant and the Appellant confessed to the aggravated robbery.27 Appellant
stated that he and Land were short on money and Land told the Appellant to take
him to the mall so he could “hit a lick”.28 The Appellant told Cosby that he
dropped Land off at the mall and picked him up after the robbery.29 When asked
what “hit a lick” meant the Appellant stated that it meant something illegal was
about to occur.30
24 Id. at 50-51; See State’s Exhibit 6. 25 Id. at 52. 26 Id. at 57-58. 27 Id. at 108-09. 28 Id. at 109. 29 Id. at 109-10. 30 Id. at 110.
When the Appellant took the stand he admitted to using the credit cards to
buy cigarettes that he could trade for marijuana and cocaine.31 Appellant also
stated that “hit a lick” meant to get some money when you need it.32
Summary of the Argument
There was legally sufficient evidence to support a conviction of the
Appellant. The Appellant was identified by an eyewitness, the daughter of the
victim, as the person who knocked down and dragged the victim, while stealing her
purse. Since then, the Appellant was caught by law enforcement using the credit
cards and check of the victim that was located in her purse when the purse was
stolen from her.
The identification of the Appellant was permissible. Although the
eyewitness saw the Appellant’s picture in the newspaper associated with the
robbery of her mother, that did not affect the eyewitnesses identification of the
Appellant. The eyewitness speaks to the differences between the newspaper
photograph of the defendant and how the defendant looked that night, and
identified the photograph in the photo lineup of the Appellant not based on the
picture in the newspaper but based on what the eyewitness saw at the time of the
aggravated robbery.
31 Id. at 115-16. 32 Id. at 120.
The Appellant heard the verdict read in open court. The verdict was read at
the beginning of the sentencing, and Appellant’s fundamental rights were not
violated because he was present for the reading of the verdict.
Argument
Reply Issue #1: The evidence is legally sufficient, beyond a reasonable
doubt, to support the Appellant’s conviction for Aggravated Robbery.
Applicable Law
A person commits an offense if, in the course of committing theft, he
intentionally or knowingly threatens or places another in fear of imminent bodily
or death.33 This offense is aggravated if it causes bodily injury to another person or
threatens or places another person in fear of imminent bodily injury or death, if the
other person is 65 years of age or older.34
While due process of law generally prohibits the admission of testimony in
regards to identification that is inherently unreliable, “if the identification
testimony follows unnecessarily suggestive pretrial procedures, that testimony will
still be admissible if the totality of the circumstances indicates that the testimony is
reliable.”35
33 Tex. Pen. Code Ann. § 29.02(a)(2) (West 2011). 34 Tex. Pen. Code Ann. § 29.03(a)(3)(A) (West 2011). 35 Harris v. State, 827 S.W.2d 949, 959 (Tex. Crim. App. 1992); citing Manson v. Brathwaite, 432 U.S. 98,113-114 (Tex. Crim. App. 1977).
Standard of Review
Sufficiency of the evidence in a bench trial is measured by a standard
analogous to the “hypothetically correct jury charge” standard, which includes the
statutory elements of the offense as modified by the charging instrument.36 Such a
charge would be one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.”37
In this case, the charging instrument (indictment) alleged:
Defendant, on or about the 17th day of November, A.D. 2012, … did then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly, or recklessly cause bodily injury to Shirley Williamson, a person 65 years of age or older, by pulling her to the ground as he stole her purse38
The State must prove every element of the crime charged beyond a
reasonable doubt.39 In reviewing the legal sufficiency of the evidence to support a
conviction, the court considers the evidence in the light most favorable to the
verdict to determine whether the fact-finder was rationally justified in finding guilt
36 Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2004). 37 Malik, 953 S.W.2d at 240. 38 C.R. at 17. 39 Jackson v. Virginia, 443 U.S. 307, 313-14 (1979).
beyond a reasonable doubt.40 When evaluating the sufficiency of the evidence, the
court must presume the trier of fact resolved any conflicts in the evidence in favor
of the verdict and defer to that resolution.41
A criminal conviction may be based upon circumstantial evidence and
circumstantial evidence alone can be sufficient to establish guilt.42 In
circumstantial evidence cases, not every fact and circumstance needs to point
“directly and independently to the defendant’s guilt.”43 If the conclusion is
supported by the “combined and cumulative force” of all the incriminating
circumstances, the evidence is sufficient to establish guilt.44 When reviewing
an in-court identification issue, almost total deference is given to the trial court’s
determination of historical facts when they are based on credibility or demeanor, or
application of law to facts when they are based on credibility or demeanor.45
Application of law to facts not based on credibility or demeanor – and questions of
law – are reviewed de novo.46
40 Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). 41 Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2012). 42 Temple, 390 S.W.3d at 359. 43 Id. 44 Id. 45 Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (Loserth I). 46 Id.
The defendant bears the burden of determining both elements of an
impermissible in-court identification by clear and convincing evidence.47
The Identification of the Defendant was Permissible
The totality of the circumstances show that the identification of the
Appellant was not impermissible. Although there was some time between when
the eyewitness, Lair, saw the Appellant and when she identified him in a lineup,
the actual lineup was conducted by a law enforcement officer with no knowledge
of the case, and Lair picked Appellant out of a lineup that was given to her one and
by one and in which she did not know if the suspect was in it or not.48
Furthermore, the picture of the Appellant in the lineup was not the same
photograph as appeared in the local newspaper that the eyewitness saw, the quality
and clarity of the photograph is much different between the two.49
The eyewitness was able to look at the Appellant for a few seconds or longer
when walking out of the mall because the eyewitness said help and exchanged
pleasantries with the Appellant. It is at that time that the eyewitness was able to
make an identification of the Appellant, and saw an individual with the same
47 Loserth II, 985 S.W. 2d at 543. 48 II R.R. at 65. 49 Id.
clothes as the Appellant steal her mother’s purse and drag her mother along the
ground.50
Reply Issue #2: Appellant’s verdict of conviction was made in
open court in front of Appellant and no fundamental error has occurred.
A defendant is required to be present, in a felony case, when the verdict is
read unless his absence is either willful or voluntary.51 The Appellant was present
in court when the verdict of conviction against him was read. The first time the
Court read the verdict was prior to the sentencing phase of the trial, and the
Appellant was present in the courtroom when the verdict was read for the first
time. As such, no fundamental error has occurred.
50 Id. 51 TEX. CODE CRIM. PROC. ANN. art. 37.06 (West 2011).
Prayer
The State of Texas prays that this Court of Appeals affirm the judgment of
the trial court.
Respectfully Submitted,
/s/ April Ayers-Perez Assistant District Attorney Angelina County D.A.’s Office P.O. Box 908 Lufkin, Texas 75902 (936) 632-5090 phone (936) 637-2818 fax State Bar No. 24090975 ATTORNEY FOR THE STATE OF TEXAS
Certificate of Compliance
I certify that this document contains 2,080 words, counting all parts of the
document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in
14 point font, and the footnote text is in 12 point font.
/s/ April Ayers-Perez
Certificate of Service
I certify that on March 2, 2015, a true and correct copy of the above
document has been forwarded to John Tunnell, counsel for Joseph Finley on
appeal, at P.O. Box 414, Lufkin, Texas, 75902, via electronic service through
efile.txcourts.gov.