Jowel Singleton v. State

Opinion

Opinion issued May 9, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00652-CR ——————————— JOWEL SINGLETON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Case No. 66948

MEMORANDUM OPINION

A jury found appellant, Jowel Singleton, guilty of the offense of aggravated

robbery1 and assessed his punishment at confinement for eleven years and a $200

1 See TEX. PENAL CODE ANN. § 29.03 (Vernon 2011). fine. In one issue, appellant contends that the evidence is legally insufficient to

support his conviction.

We affirm.

Background

Farooq Ahmed testified that he worked as a cashier at the Fastop

convenience store in Clute, Texas for four years and was working the night of

November 30, 2011 when he was robbed. He explained that two men wearing ski

masks came into the store with handguns around 10:00 to 10:30 p.m. and said

“give me money.” Ahmed used a trash can as cover, hoping that he would not be

shot. He noted that one gun had a “white” or “silver” color and the other had a

“reddish” color. One of the men hit the perfume case and knocked it over when he

opened the cash register and took all the money and some lottery scratch-off tickets

that were found outside. Ahmed told responding police officers that the men were

about 5’5” to 5’8” tall and of “skinny weight.” Although he could not tell the

men’s race, he knew that they were men from the sound of their voices.

Clute Police Department (“CPD”) Officer S. O’Sullivan testified that on

November 30, 2011, he was dispatched to the Fastop convenience store. A Fastop

employee named Byron Dunlap told O’Sullivan at the scene that he was going to

get a cellular telephone in the back when he heard a screaming noise. He returned

to the front of the store and saw two men wearing ski masks and gloves, one

2 wearing a white t-shirt and the other wearing a black t-shirt and with a handgun

and the other with a “red gun.” O’Sullivan saw items thrown on the counter, an

open cash register that was empty, and, between the doorway and the cash register,

a knife, which he later determined belonged to the store. O’Sullivan transported

Dunlap and Ahmed to a police station and took their statements. O’Sullivan

explained that police detectives eventually determined that appellant and another

man, Timothy Robinson, were suspects and arrested them on December 8, 2011.

CPD Detective Scotty Harris testified that he was dispatched to the Fastop

convenience store on November 30, 2011, and, once there, he took photographs of

the crime scene. Also, he was eventually able to obtain a video tape from the

store’s security cameras. Harris explained that he arrested a man named Louis

Norris on December 3, 2011, after seeing him break into a car at the Sherwood

Forest Apartment complex. Harris later took from Norris a statement in which he

provided information about the Fastop convenience store robbery. Harris

explained that he believed Norris because he had information that had not been

released to the public, and Norris was not promised anything in return for the

information. Norris identified appellant in a photographic lineup as a party to the

robbery. Harris explained that he did not obtain a search warrant for appellant’s

residence to look for the guns used in the robbery because appellant did not have a

permanent residence. Harris noted that it was possible that Norris was involved in

3 the robbery since he had information that the public did not have, and he and the

man that Norris identified as working with him burglarizing vehicles fit the general

description given by the witnesses. He also acknowledged that Norris had asked to

speak to him, and it was possible that his motive for doing so was to try to “get a

deal.” And he noted that because the punishment for aggravated robbery is

confinement for five to ninety-nine years, Norris would not want to be caught and

this could constitute a motive to lie and say that someone else committed the

robbery. However, Norris was never a suspect in the Fastop convenience store

robbery.

Norris testified that he was not offered anything in exchange for his

testimony against appellant and he still had an open case against him for burglary

of a motor vehicle. Norris explained that at about 7:30 p.m. on March 30, 2011, a

few days before he was arrested, he was at his mother’s apartment at Brighton

Manor when appellant and Robinson came by. The men smoked synthetic

marijuana together, and appellant and Robinson asked Norris to rob the Fastop

convenience store with them later that night. They showed Norris an “orange flare

gun” and a “silver .25” handgun that they planned to use. Norris initially agreed to

participate, and appellant and Robinson said that they would come back for him.

Later that night, after 10:00 p.m., he heard a knock on his window and saw

appellant and Robinson through the window blind. Norris ignored the knock and

4 stayed in his bed because he had changed his mind and did not want to participate

in the robbery. Norris explained that he did not leave the apartment that night and

would not be able to get in and out because only his mother had a key and she

knew he was in the apartment that night.

Norris was asked on direct examination whether he had seen Robinson the

next day, the day after the robbery. Norris testified that he saw Robinson who told

Norris that he and appellant had robbed the store, but had only gotten a “hundred

and something dollars” from one cash register. On cross-examination and on re-

direct examination, Norris clarified that he had talked to both appellant and

Robinson the day after the robbery. He noted that any inconsistencies between his

testimony and his written statement to Detective Harris did not mean that his

statement to Harris was incorrect simply because “a couple of details were left

out.” And he explained that when he was arrested and gave his statement to

Harris, that he was “drunk” and had “just came from a party,” “but [he knew] what

happened.” Norris also explained that he could only have obtained the details about

the robbery from appellant and Robinson, they were not enemies, and he had no

reason to “lie” about them. Norris also noted that the man who was involved with

him in the motor-vehicle burglaries is Hispanic, short, and weighs over 200

pounds; thus, he did not fit the description of either of the Fastop robbers.

5 Norris’s mother, Tina Cooper, testified that he lived with her at the Brighton

Manor apartments on November 30, 2011. She was the only person with a key to

the apartment door and made sure that everyone was in her apartment before she

went to bed at 10:30 p.m. after watching the television news. Cooper explained

that she did not at any time in November, awaken to find the door or any windows

to her apartment unlocked. And she noted that the bedroom doors in the apartment

were not closed until she went to bed at 10:30 p.m. Thus, she “knew” that Norris

was in his room until that time. She explained that Norris has a t-shirt, but not a

black t-shirt, has only jeans, not dark pants, and does not own a “hoodie” or a ski

mask. The only gloves in her apartment were gloves with white dots that she used

for work. And she has never seen Norris with weapons in her apartment.

Sufficiency of the Evidence

In his sole issue, appellant argues that the evidence is legally insufficient to

support his conviction because the State’s witnesses had “no credibility,” the

strength of the evidence “was tenuous at best,” and, even when considered in the

light most favorable to the verdict, “this jury could not be said to have been

rationally justified in finding guilt beyond a reasonable doubt.” Appellant asserts

that the State’s star witness, Louis Norris, was “an admitted snitch and a thief,”

who was “intoxicated, [had] limited memory, [was] drunk at that time [and had]

6 smoked synthetic, fake weed,” while the State’s other witness “could not

accurately recall anything.”

We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.

2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89

(1979)). Evidence is legally insufficient when the “only proper verdict” is

acquittal. Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2218 (1982). Our

role is that of a due process safeguard, ensuring only the rationality of the trier of

fact’s finding of the essential elements of the offense beyond a reasonable doubt.

See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). In doing so,

we give deference to the responsibility of the fact finder to fairly resolve conflicts

in testimony, to weigh evidence, and to draw reasonable inferences from the facts.

Id. We defer to the fact finder’s resolution of conflicting evidence unless the

resolution is not rational. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). However, our duty requires us to “ensure that the evidence presented

actually supports a conclusion that the defendant committed” the criminal offense

of which he is accused. See Williams, 235 S.W.3d at 750.

7 Circumstantial evidence can be as probative as direct evidence in

establishing the guilt of an actor, and it alone can be sufficient to establish guilt.

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The term “inference”

means,

In the law of evidence, a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved. . . .

Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—

Houston [1st Dist.] 1993, writ dism’d w.o.j.) (citing BLACK'S LAW DICTIONARY

700 (5th ed. 1979)). For a jury to infer a fact, “it must be able to deduce that fact

as a logical consequence from other proven facts.” Id.

A person commits the offense of robbery if, in the course of committing

theft and with intent to obtain or maintain control of property, he intentionally or

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

TEX. PENAL CODE ANN. § 29.02(a)(2) (Vernon 2011). A person commits the

offense of aggravated robbery if he commits robbery and uses or exhibits a deadly

weapon. Id. § 29.03(a)(2) (Vernon 2011). A firearm is considered a deadly

weapon. Id. § 1.07(a)(17)(A) (Vernon Supp. 2012). Theft is the unlawful

appropriation of property with the intent to deprive the owner of the property. Id.

§ 31.03(a) (Vernon Supp. 2012).

8 Jurors are the exclusive judges of the facts, the credibility of the witnesses,

and the weight to be given the witness’s testimony. Penagraph v. State, 623

S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State, 125

S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). And, they may

choose to believe or disbelieve any part of a witness’s testimony. See Davis v.

State, 177 S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

Likewise, “reconciliation of conflicts in the evidence is within the exclusive

province of the jury.” Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)

(quoting Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)).

Here, Ahmed testified that the two men who robbed him at the Fastop

convenience store used two handguns, one that was “reddish” in color, and the

other one “silver.” Because the robbers wore ski masks and gloves, he was only

able to identify them as males because of their voices, and he told police officers

that they were between 5’5” and 5’8” tall, “skinny,” and weighed around 160 to

165 pounds.

Norris positively identified appellant in a photographic lineup as one of the

men who planned the robbery and had asked Norris to participate in the robbery.

And he corroborated the eye-witness testimony concerning appellant’s height and

weight. Specifically, Norris testified that appellant and Robinson had come to his

mother’s apartment on the night of the robbery, asked him to participate in the

9 robbery, and showed him the guns that they planned to use, including an orange

flare gun and a silver .25 handgun. Norris explained that both appellant and

Robinson had come back for him later that night, and although he looked through

the blind and saw them both, he ignored their knock on his window because he had

changed his mind about participating in the robbery. And, although Norris, in his

testimony on direct examination disclosed only the fact that he saw and spoke with

Robinson on the day after the robbery, he clarified on cross-examination and

redirect examination that he actually saw both appellant and Robinson, who both

told him that they had committed the robbery. Norris explained that although his

statement to Detective Harris might be inconsistent, “[he knew] what happened”

even though he might have “left out” some details. Moreover, he stated that both

appellant and Robinson admitted to having robbed the store. As fact finder, the

jury was entitled to resolve conflicts in the testimony, and we defer to that

resolution. Williams, 235 S.W.3d at 750. And Detective Harris testified that

Norris gave him information about the robbery that had not been released to the

public. Moreover, Norris’s description of the guns that appellant and Robinson

had showed to him and planned to use in the robbery was similar to Ahmed’s

description of the weapons that were actually used in the robbery.

Although each piece of evidence may lack strength when considered “in

isolation, the consistency of the evidence and the reasonable inferences drawn

10 therefrom, provide the girders to strengthen the evidence” and support the jury’s

finding of the elements of the offense. See Swearingen v. State, 101 S.W.3d 89, 97

(Tex. Crim. App. 2003). The bottom line is that from the evidence presented,

including the facts that appellant and Robinson asked Norris to commit the robbery

with them, they came to his apartment to get him as planned, the robbery was

committed as planned, and both appellant and Robinson admitted to Norris the

next day that they had robbed the store, the jury could have reasonably found that

appellant committed the robbery with Robinson.

Viewing the evidence in the light more favorable to the jury’s findings, the

testimony of Norris, Ahmed, and Detective Harris supports an inference that

appellant participated in the robbery of the Fastop convenience store. Accordingly,

we hold that the evidence is legally sufficient to support appellant’s conviction.

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. CIV. P. 47.2(b). 11