ACCEPTED 06-14-00168-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/18/2015 3:32:19 PM No. 06-14-00168-CR DEBBIE AUTREY Trial Court No. 11F0921-102 CLERK
IN THE COURT OF APPEALS FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN 6th COURT OF APPEALS AT TEXARKANA, TEXAS TEXARKANA, TEXAS 2/18/2015 3:32:19 PM Lyndon Anderson, DEBBIE AUTREY Appellant Clerk
v.
The State of Texas, State Appealed from the 102nd Judicial District Court Bowie County, Texas
BRIEF FOR THE STATE The State Does Not Request Oral Argument
Respectfully submitted:
Jerry D. Rochelle Criminal District Attorney Bowie County, Texas 601 Main Street Texarkana, Texas 75501 By: Lauren N. Sutton Assistant District Attorney 601 Main Street Texarkana, Texas 75501 Texas Bar No. 24079421 Lauren.sutton@txkusa.org Attorneys for the State In The Court of Appeals For the Sixth Supreme Judicial District At Texarkana, Texas
Lyndon Anderson, § Appellant § § No. 06-14-00168-CR v. § § The State of Texas, § BRIEF FOR THE STATE State § §
Identity of the Parties
The following is a complete list of all the parties to the trial court’s judgment
as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate
Procedure:
1. Defendant and Appellant:
Lyndon Anderson
2. Attorneys for Appellant at trial:
Will Williams Chad Crowl Public Defender’s Office 424 W. Broad Street Texarkana, Texas 75501
3. Attorney for appellant on appeal:
Kristian Young 210 N. Stateline Ave, Suite 502 Texarkana, AR 78705
1 4. Attorney for the State of Texas at trial:
James Elliott Kelley Crisp Assistant District Attorneys 601 Main Street Texarkana, Texas 75501
5. Attorney for the State of Texas on Appeal:
Lauren N. Sutton Assistant District Attorney 601 Main Street Texarkana, Texas 75501 Lauren.sutton@txkusa.org
6. Presiding Judge at trial:
Honorable Bobby Lockhart District Court Judge 102nd Judicial District Bowie County, Texas Bi-State Justice Building 100 North State Line Avenue Texarkana, Texas 75501
2 Table of Contents
Identity of the Parties and Counsel ......................................................................... i-ii
Table of Contents ..................................................................................................... iii
Index of Authorities ........................................................................................... iv-viii
Statement of the Case................................................................................................. 1
Reply to Points of Error ............................................................................................. 2
Summary of the Argument..................................................................................... 3-6
Argument.............................................................................................................. 7-41
Reply to Point of Error Number One .............................................. 7-12 Photographs admitted into evidence were properly authenticated; therefore it was not error for the trial court to admit the photographs into evidence.
Reply to Point of Error Number Two ........................................... 13-17 Testimony by Officer Bradshaw did not introduce any evidence of prior bad acts or extraneous offenses; therefore the trial court did not err in admitting the testimony.
Reply to Point of Error Number Three ......................................... 17-20 The evidence is sufficient to support Appellant’s conviction for aggravated robbery.
Prayer for Relief ....................................................................................................... 42
Certificate of Compliance ........................................................................................ 43
Certificate of Service ............................................................................................... 44
3 Index of Authorities
Cases
Brasfield v. State, 30 S.W.3d 502 (Tex. App. –Texarkana 2000) ........................... 16
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) .....................................22
Ethington v. State, 819 S.W.2d 854 (Tex. Crim. App. 1991) .................................. 17
Gallo v. State, 239 S.W3d 757 (Tex. Crim. App. 2007) ......................................... 11
Goff v. State, 931 S.W.2d 537 (Tex. Crim. App. 1996) .......................................... 16
Harris v. State, 152 S.W.3d 786 (Tex. App.—Houston [1st Dist.] 2004) .............. 20
Harwood v. State, 961 S.W.2d 531 (Tex. App.—San Antonio 1997) .................... 20
Hill v. State, 392 S.W.3d 850 (Tex. App.—Amarillo 2013) ................................... 11
Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App. 1999) ......................................... 16
Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................ 22
Johnson v. Garza, 884 S.W.2d 831 (Tex. App.—Austin 1994, writ denied) ......... 22
Long v. State, 10 S.W.3d 389 (Tex. App.—Texarkana 2000)................................. 17
Martinez v. State, 98 S.W.3d 189 (Tex. Crim. App. 2003) ..................................... 17
Moore v. State, 295 S.W.3d 329 (Tex. Crim. App. 2009) .......................................16
Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App. 1996) ...................................... 20
Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. 1982) ......................................16
Sims v. State, 816 S.W.2d 502 (Tex. App.—Houston [1st Dist.] 1991).................. 16
Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) ......................................16
4 Williams v. State, 535 S.W.2d 637 (Tex. Crim. App. 1976) ................................... 20
Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997) ................................... 16
Texas Rules of Appellate Procedure
Texas Rule of Appellate Procedure 33.1(a) ............................................................. 16
Texas Rule of Appellate Procedure 44.2(b)............................................................. 13
5 Statement of the Case
Appellant, Lyndon Anderson, was found guilty of aggravated robbery. The
jury assessed punishment at sixty (60) years in the Institutional Division of the
Department of Criminal Justice, and a $5,000 fine. The trial judge sentenced him
accordingly.
Appellant then perfected appeal to this Honorable Court. He now appeals the
verdict of the trial court on three points of error.
6 Reply to Points of Error
REPLY TO POINT OF ERROR NUMBER ONE:
Photographs admitted into evidence were properly authenticated; therefore it was not error for the trial court to admit the photographs into evidence.
REPLY TO POINT OF ERROR NUMBER TWO:
Testimony by Officer Bradshaw did not introduce any evidence of prior bad acts or extraneous offenses; therefore the trial court did not err in admitting the testimony.
REPLY TO POINT OF ERROR NUMBER THREE:
The evidence is sufficient to support Appellant’s conviction for aggravated robbery.
7 Summary of the Argument
Photographs admitted into evidence were properly authenticated; therefore it was not error for the trial court to admit the photographs into evidence.
The State introduced evidence sufficient to support a finding the photos were
authentic. The trial court did not err by admitting into evidence the still
photographs.
Additionally, Anderson has failed to show that he was harmed in any way by
the admission of the photographs. The photographs are cumulative with and are
corroborated by other evidence presented at trial. In light of the overwhelming
evidence of Appellant’s guilt, still photos were not paramount to the State’s case.
Therefore, this Court can find beyond a reasonable doubt that the photos, if they
were constitutional error, did not contribute to Appellant’s conviction.
Testimony by Officer Bradshaw did not introduce any evidence of prior bad acts or extraneous offenses; therefore the trial court did not err in admitting the testimony.
Appellant failed to properly preserve this point of error for review. However,
Officer Bradshaw’s testimony was restricted to his familiarity with the Appellant
without mention of how he knew him, which was used to establish a foundation for
8 his identification of the Appellant as the suspect in the video of the robbery.
Bradshaw’s testimony did not introduce any prior bad acts or extraneous offenses,
therefore the trial court properly admitted his testimony.
The evidence is sufficient to support Appellant’s conviction for aggravated robbery.
Viewing the evidence in a light most favorable to the verdict, this court can
find that a rational jury could have found beyond a reasonable doubt that the
Appellant committed aggravated robbery. The jury viewed the video and the
suspect who committed the robbery and was able to view the Appellant in the
courtroom themselves and made the determination the Appellant committed the
robbery. This all in spite of the fact the victim picked a different person in the
photo lineup. Because there is sufficient evidence that the Appellant was the
individual who committed the robbery, Appellant’s challenge to the sufficiency of
the evidence should be overruled.
9 Argument
Reply to Point of Error One
Photographs admitted into evidence were properly authenticated; therefore it was not error for the trial court to admit the photographs into evidence.
In point of error number one, the Appellant argues the trial court erred in
admitting still photographs over his objections. Appellant claims the photos were
not properly authenticated and therefore should have been excluded. However,
there was sufficient testimony and evidence for the trial court to make the
determination the photographs were authenticated. Therefore, the trial court did not
abuse its discretion in admitting the photographs over Appellant’s objections.
Argument and Authorities
A. Standard of Review
The trial court is given wide discretion in evidentiary rulings. Appellate
courts review a trial court’s exclusion of evidence under an abuse of discretion
standard of review. A trial court has not abused its discretion unless it has acted
arbitrarily and unreasonably, without reference to any guiding rules or principles.
As long as the trial court’s ruling remains with the “zone of reasonable
disagreement,” there is not abuse of discretion and the trial court’s ruling will be
upheld.
10 B. Application of Law to Facts
“The trial court should admit proffered evidence ‘upon, or subject to the
introduction of evidence sufficient to support a finding of authenticity. The
ultimate question whether an item of evidence is what its proponent claims then
becomes a question for the fact-finder….The preliminary question for the trial
court to decide is simply whether the proponent of the evidence has supplied facts
that are sufficient to support a reasonable jury determination that the evidence he
has proffered is authentic. Evidence may be authenticated in a number of ways,
including by direct testimony from a witness with personal knowledge, by
comparison with other authenticated evidence, or by circumstantial evidence.”1
The admissibility of a photograph is within the sound discretion of the trial
court.2 Generally, a photograph is admissible if verbal testimony as to matters
depicted in the photograph is admissible; in other words, if verbal testimony is
relevant, photographs of the same also are relevant.3 In this case, the photographs
were still shots of the suspect in the robbery. Verbal testimony as to the description
of the suspect actually committing the robbery is certainly admissible; therefore a
photograph of the suspect would likewise be admissible.
1 Tienda v. State, 358 S.W.3d 633, 638-39 (Tex. Crim. App. 2012). 2 Gallo v. State, 239 S.W3d 757, 762 (Tex. Crim. App. 2007), citing Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). 3 Hill v. State, 392 S.W.3d 850, 856 (Tex. App.—Amarillo 2013, pet. ref’d.) 11 Appellant objected that a proper foundation had not been laid to authenticate
the photos and that it would be a violation of the confrontation clause if the person
who processed the photos was not present to testify. On appeal, the Appellant
appears to only urge the objection to the authentication of the photos. The State
will restrict its response to that argument.
At trial, the Appellant stipulated to the introduction of the videotape of the
robbery taken by the store’s surveillance cameras. (R.R. Vol. 4, p. 28). However,
the Appellant chose to object to the still shots from the video. (R.R. Vol. 4, p. 29).
After viewing the video and the still shots, the court overruled Appellant’s
objections. The trial court stated its reason for overruling the objection, “[I]t’s
obvious these photographs are from the video, and the video has been admitted. I
don’t think their prejudicial value is going to outweigh their probative value, and I
think, as opposed to having to run back and forth and play the video over and over,
I think these will be helpful to the jury to identify whoever did do the robbery. So,
with that, I’m going to overrule your objection…” (R.R. Vol. 4, p. 36).
The State introduced evidence sufficient to support a finding the photos were
authentic. The trial court properly ruled that the photographs would aid the jury in
determining the issue of the suspect’s identity and any prejudicial effect did not
outweigh their probative value. Therefore, it was not an abuse of discretion for the
trial court to admit the photographs into evidence.
12 C. Harm Analysis
Assuming, arguendo, the trial court erred in admitting into evidence the
photographs, such error does not constitute reversible error. Error in the admission
of evidence is non-constitutional error governed by Texas Rule of Appellate
Procedure 44.2(b). A non-constitutional error must be disregarded unless the
defendant's substantial rights are affected. A substantial right is affected under
Rule 44.2(b) when the error has a substantial and injurious effect or influence. A
criminal conviction should not be reversed for non-constitutional error if the
reviewing court, after examining the record as a whole, has fair assurance that the
error did not influence the jury, or had but a slight effect. From a review of the
record, this Court can have fair assurance that the error, if it was error, did not
influence the jury or had but a light effect. Therefore, any error in admitting the
photographs constitutes harmless error.
The photos were introduced during the testimony of Arkansas State Police
Officer Scott Bradshaw. (R.R. Vol. 4, p. 32-36). Officer Bradshaw identified the
defendant as Lyndon Anderson and said he had known Mr. Anderson for several
years. (R.R. Vol. 4, p. 33). Officer Bradshaw viewed the video of the robbery and
identified Lyndon Anderson as the suspect in the video. (R.R. Vol. 4, p. 35).
The extent of the testimony relating to the photographs was minimal.
13 The still photographs were cumulative with the video of the robbery. The
photographs depicted the suspect as he was robbing the store, from a variety of
angles. Additionally, the photos were corroborated by the video and witness
testimony. Taking into account the overwhelming evidence of Appellant’s guilt,
this Court can find beyond a reasonable doubt that the admission of the
photographs into evidence, if it was a constitutional error, did not contribute to
Appellant’s conviction.
D. Conclusion
The State introduced evidence sufficient to support a finding the photos were
authentic. The trial court did not err by admitting into evidence the still
Additionally, Anderson has failed to show that he was harmed in any way by
the admission of the photographs. The photographs are cumulative with and are
corroborated by other evidence presented at trial. In light of the overwhelming
evidence of Appellant’s guilt, still photos were not paramount to the State’s case.
Therefore, this Court can find beyond a reasonable doubt that the photos, if they
were constitutional error, did not contribute to Appellant’s conviction.
For these reasons, Anderson’s first point of error should be overruled.
14 Reply to Point of Error Two
Testimony by Officer Bradshaw did not introduce any evidence of prior bad acts or extraneous offenses; therefore the trial court did not err in admitting the testimony.
In his second point of error, the Appellant argues that the trial court erred in
allowing testimony from Officer Bradshaw. Appellant believes that Officer
Bradshaw’s testimony about his dealings with the Appellant over several years
amounted to the introduction of extraneous offense evidence. However,
Bradshaw’s testimony was restricted to his familiarity with the Appellant without
mention of how he knew him, which was used to establish a foundation for his
identification of the Appellant as the suspect in the video of the robbery.
Bradshaw’s testimony did not introduce any prior bad acts or extraneous offenses,
A. Preservation of Error
To properly preserve error with regard to evidence for appellate review, a
defendant must have made a timely request, objection, or motion, with sufficient
specificity to make the trial court aware of the nature of the complaint, and secure
15 a ruling.4 As general rule, appellate courts will not consider any error which
counsel for the accused could have called, but did not call, to the attention of the
trial court at the time when such error could have been avoided or corrected by the
trial court.5 Furthermore, the objection raised on appeal must be the same as the
objection raised at trial.6 Where a trial objection does not comport with the issue
raised on appeal, error is not preserved for review and is waived.7
Appellant claims the testimony of Officer Bradshaw was in violation of the
Appellant’s motion in limine, which was granted by the trial court. In general, the
grant or denial of a motion in limine does not preserve error.8 The purpose of a
motion in limine is to prevent the asking of prejudicial questions and making of
prejudicial statements in the presence of the jury.9 Grant of a motion in limine
merely precludes reference to the subject of the motion without first obtaining
ruling on admissibility of those matters outside the presence of the jury.10
To preserve a claim of error for appellate review regarding the improper
admission of evidence, our law requires a party to object each time the allegedly
4 Tex. R. App. P. 33.1(a); Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009). 5 Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App. 1982). 6 Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828 (2000); Brasfield v. State, 30 S.W.3d 502, 505 (Tex. App. –Texarkana 2000, no pet.). 7 Ibarra, 11 S.W.3d at 197; Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1171 (1997); Brasfield, 30 S.W.3d at 505. 8 Johnson v. Garza, 884 S.W.2d 831, 834 (Tex. App.—Austin 1994, writ denied). 9 Sims v. State, 816 S.W.2d 502, 504 (Tex. App.—Houston [1st Dist.] 1991, writ denied). 10 Id. 16 inadmissible evidence is offered into evidence.11 A party is required to continue to
object each time inadmissible evidence is offered in order to preserve error, with
two exceptions that require counsel to either obtain a running objection, or request
a hearing outside the presence of the jury.12 Appellant failed to object each time
Officer Bradshaw testified about his prior contacts with the Appellant.
In the present case, the testimony of Officer Bradshaw introduced no prior
bad acts or extraneous offenses committed by the Appellant. The State called
Officer Scott Bradshaw to testify that he was familiar with the Appellant and could
identify him. During Bradshaw’s testimony, he stated that he knew Lyndon
Anderson for several years and had several conversations with him it different
settings. The Appellant then objected :
STATE: And have you ever had a conversation with him inside of
a vehicle?
DEFENSE: Objection, Your Honor. May we approach?
THE COURT: Wait before your answer. Wait.
(AT THE BENCH, ON THE RECORD)
11 Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Long v. State, 10 S.W.3d 389, 399 (Tex. App.—Texarkana 2000, pet. ref’d). 12 See Martinez v. State, 98 S.W.3d 189 (Tex. Crim. App. 2003). 17 DEFENSE: This stuff about a field setting, a vehicle setting,
he’s trying to get around the fact that he can’t get in that this individual was
arrested—
STATE: How many times he has seen this individual—
DEFENSE: And he’s already answered that question several
times. So I’ll object to cumulative.
THE COURT: And I understand what Mr. Elliot is trying to
dodge, and he’s dodged it well so far. So your objection is overruled. (R.R. Vol.
4, p. 34).
The Appellant first made an objection that the State was trying to get around
the fact that Officer Bradshaw could not testify the Appellant had previously been
arrested. Construing this objection broadly, the trial court was possibly made aware
that Appellant had an objection that extraneous offense evidence was being
introduced. The trial court overruled the objection. The Appellant never made
another objection with specificity that Bradshaw was giving testimony about any
prior bad acts or extraneous offenses.
As to the first objection, Officer Bradshaw was never asked if he had arrested the
Appellant. That testimony was never illicited during Officer Bradshaw’s
testimony. The State carefully questioned Bradshaw regarding his prior dealings
with Appellant as to not introduce extraneous offense evidence.
18 The State continued its questioning of Officer Bradshaw and his familiarity
with the Appellant. Officer Bradshaw was then asked if he was present in the
courtroom when the video of the robbery was played and if he could identify the
individual in the video. (R.R. Vol. 4, p. 35). Officer Bradshaw testified the
individual was Lyndon Anderson. The Appellant then objected to the next
question:
STATE: And you base that on your many years of knowing him, your
many conversations with him, the many times that you stood this close to him?
DEFENSE: Objection, leading.
THE COURT: Overruled.
(R.R. Vol. 4, p. 35).
The second objection from the Appellant was to a leading question. That is
not the complaint Appellant raises on appeal. On appeal, Appellant complains that
Officer Bradshaw’s testimony introduced extraneous offenses of the Appellant.
The objection raised on appeal must be the same as the objection raised at trial.
Because the second trial objection does not comport with the issue raised on
appeal, that specific objection fails to preserve any error for review.
Because Appellant’s objections at trial were unspecific and do not comport
with his objections on appeal, error was not preserved for review. Alternatively,
because Appellant did not object each time that the testimony was introducing
19 evidence of prior bad acts or extraneous offenses, error was not preserved for
review.
B. Standard of Review
Should this court determine Appellant preserved this error for review, the
trial court is given wide discretion in evidentiary rulings.13 Appellate courts review
a trial court’s exclusion of evidence under an abuse of discretion standard of
review.14 A trial court had not abused its discretion unless it has acted arbitrarily
and unreasonably, without reference to any guiding rules or principles.15 As long as
the trial court’s ruling remains with the “zone of reasonable disagreement,” there is
not abuse of discretion and the trial court’s ruling will be upheld.16
C. Application of Law to Facts
Appellant argues Officer Bradshaw’s testimony regarding his familiarity of
the Appellant introduced extraneous offense evidence and should have been
excluded at trial. However, on review of the record it is clear that Officer
Bradshaw never mentioned any specific occasions where he came into contact with
the Appellant which would amount to an extraneous offense. Appellant fails to
specify how Officer Bradshaw’s testimony that he has known and spoken with
13 Williams v. State, 535 S.W.2d 637, 639-40 (Tex. Crim. App. 1976). 14 Harris v. State, 152 S.W.3d 786, 793 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). 15 Harwood v. State, 961 S.W.2d 531, 536 (Tex. App.—San Antonio 1997, no pet.). 16 See Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996). 20 Appellant on many occasions elicited evidence of a prior bad act or extraneous
offense.
Officer Bradshaw’s testimony that he had come into contact with the
Appellant multiple times over several years in office and field settings was
admissible at trial. His testimony did not introduce any prior bad acts or extraneous
offenses, therefore it was not error for the trial court to allow his testimony.
Therefore, Appellant’s second point of error should be overruled.
Reply to Point of Error Three
The evidence is sufficient to support Appellant’s conviction for aggravated robbery.
In his third point of error, the Appellant argues that because the victim
identified another individual as committing the robbery that the evidence was
insufficient to support his conviction. However, looking at the evidence in the light
most favorable to the verdict, a rational trier of fact could have found that the
Appellant was the suspect who robbed the Mo Money store.
21 Argument and Authorities
In reviewing the sufficiency of the evidence, the reviewing court should
apply the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). This
standard requires a reviewing court to examine all the evidence in the light most
favorable to the verdict to determine whether a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. 17 Further,
an appellate court presumes the fact finder resolved conflicting inferences in favor
of the verdict, and defers to that determination.18 The question is whether viewing
the evidence in the light most favorable to the verdict, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.19
B. Application of Law to Facts
Appellant contends that although multiple other witnesses identified him as
the robber and the video of the robbery clearly depicting him was shown to the
jury, that the evidence was insufficient to sustain Appellant’s conviction. However,
looking at the evidence presented at trial in the light most favorable to the verdict,
any rational trier of fact could have found that the Appellant was the person who
committed the robbery beyond a reasonable doubt.
17 443 U.S. 307, 319 (1979). 18 Clayton v. State, 235 S.W.3d 772, 778(Tex. Crim. App. 2007). 19 Jackson, 443 U.S. at 318-19. 22 At trial, the jury was shown surveillance video of the robbery of the Mo
Money store. (R.R. Vol. 4, p. 28, State’s Exhibit 2). The Appellant is seen on the
video entering the store four separate times on the same day. Each time he leaves
out the front door where the surveillance camera is located and there is a clear view
of his face. In addition, still photos taken from the video clearly showing the
suspect’s face during the robbery shown to the jury. (R.R. Vol. 4, p.36, State’s
Exhibits 3-7).
The evidence elicited at trial included testimony from Officer Bradshaw of
the Arkansas State Police who was familiar with the Appellant and had known him
several years. Bradshaw identified the Appellant as the person who committed the
robbery. (R.R. Vol. 4, p. 36-37).
Police Officer Robert Gentry also testified that he was very familiar with the
Appellant prior to the robbery. Officer Gentry also identified Appellant as the
suspect seeing robbing the Mo Money Store. (R.R. Vol. 4, p. 44).
Ruth Leeper testified she was a friend of the Appellant and had loaned him
her white Honda Accord to drive on the date of the robbery, August 20, 2011.
(R.R. Vol. 4, p. 56-57). On the surveillance video, the Appellant is seen getting
into and out of a white Honda Accord outside of the Mo Money store. (State’s
Exhibit 2). Ms. Leeper testified that Appellant returned her car:
23 STATE: Okay. Tell the ladies and gentlemen of the jury the
circumstances in which he returned your car?
WITNESS: Baines came to my house – that’s his middle name. He came to
my house in the middle of the night, woke me up, and told me that he was
returning the car, that he parked it behind my house, that he did something stupid,
that he didn’t want to get into it because he didn’t want me involved, and that he
had to leave town. And that was it.
(R.R. Vol. 4, p. 58).
The victim, Charity Haworth, testified she was working as an office manager
at the Mo Money on the day of the robbery. (R.R. Vol. 4, p. 67-68). She testified
that the suspect came in the store three or four times. (R.R. Vol. 4, p. 69). Charity
testified that when the suspect was trying to break down the door to get into the
office area she was in fear of imminent bodily injury or death. (R.R. Vol. 4, p. 72-
73). Charity stated that she viewed a photo line-up a day or so after the robbery and
she did not correctly identify the person who robbed her. (R.R. Vol. 4, p. 78-79).
She testified that she picked the person because it was the closest to how she
thought he looked at the time. (R.R. Vol. 4, p. 79). Charity Haworth selected photo
number 5 in the lineup. (R.R. Vol. 4, p. 83). Detective Scott Sartor testified that the
Appellant’s photo was in position number 2 in the lineup, but that the picture was
24 not a recent photo of the Appellant. (R.R. Vol. 4, p. 86). Detective Sartor stated
that he knew the victim had circled photo 5 in the lineup, but that he continued to
investigate. (R.R. Vol. 4, p. 87). Sartor viewed the surveillance video himself and
spoke with Bradshaw and Gentry regarding their identification of the Appellant in
the video. (R.R. Vol. 4, p. 87-88). Sartor testified that based on his viewing of the
video and his conversations with people personally acquainted with the Appellant
that it was his opinion the Appellant was the person who committed the robbery.
(R.R. Vol. 4, p. 88).
The jury could have rationally concluded from the evidence that Appellant’s
assault of the victim was intended to facilitate the theft and therefore occurred in
the course of committing theft.
C. Conclusion
Viewing the evidence in a light most favorable to the verdict, this court can
find that a rational jury could have found beyond a reasonable doubt that the
Appellant committed aggravated robbery. The jury viewed the video and the
suspect who committed the robbery and was able to view the Appellant in the
courtroom themselves and made the determination the Appellant committed the
robbery. This all in spite of the fact the victim picked a different person in the
photo lineup. Because there is sufficient evidence that the Appellant was the
25 individual who committed the robbery, Appellant’s challenge to the sufficiency of
For the above-mentioned reasons, Appellant’s second point of error should
be overruled.
26 Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, there being legal and
competent evidence sufficient to justify the conviction and punishment assessed in
this case and no reversible error appearing in the record of the trial of the case, the
State of Texas respectfully prays that this Honorable Court affirm the judgment
and sentence of the trial court below.
Jerry D. Rochelle Criminal District Attorney Bowie County, Texas 601 Main Street Texarkana, Texas 75501 Phone: (903) 735-4800 Fax: (903) 735-4819
_/s/ Lauren N. Sutton___________ By: Lauren N. Sutton Assistant District Attorney 601 Main Street Texarkana, Texas 75501 Phone: (903) 735-4800 Fax: (903) 735-4819 Lauren.sutton@txkusa.org
Attorneys for the State
27 Certificate of Compliance
I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of
Appellate Procedure, Appellee’s Brief contains 8,017 words, exclusive of the
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix.
/s/ Lauren N. Sutton Lauren N. Sutton
28 Certificate of Service
I, Lauren N. Sutton, certify that I have served a true and correct copy of the
foregoing Brief for the State upon Ms. Kristian Young, Attorney for Appellant, on
this the 18th day of February 2015.
__/s/ Lauren N. Sutton___________ Lauren N. Sutton