Richard Foster v. State

• Court: Court of Appeals of Texas
• Decided: October 20, 2009
• Docket: 14-08-00511-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed October 20, 2009.

In The

Fourteenth Court of Appeals

NOs. 14-08-00509-CR, 14-08-00511-CR

Richard Foster, Appellant

v.

The State of Texas, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause Nos. 1057395, 1161075

MEMORANDUM OPINION

Appellant Richard Foster appeals his convictions for capital murder and aggravated robbery, challenging the factual sufficiency of each conviction.  We affirm.

I.  Factual and Procedural Background

Police officers were dispatched to an apartment complex in response to a call notifying them of a homicide.  Inside one apartment, the officers found the body of complainant Gregory Sartain, who died of gunshot wounds, and complainant Bennie Curtis, who had sustained multiple gunshot injuries.  Curtis told the officers that he had been robbed and shot by a man named “Richard” and another man three days before the officers arrived.  After being injured, Curtis remained in the apartment for several days before a friend discovered him and notified authorities. 

In the course of the investigation, Curtis told investigators that he recognized the assailants from the apartment complex.  Investigators learned from Curtis that the man named Richard was associated with an apartment located downstairs and across from Curtis’s apartment.  Investigators worked with managers at the apartment complex, who offered information about a resident named Ricardo Irvin in apartment # 601.  Investigators placed Irvin’s photo in a photo line-up, and Curtis identified Irvin from the photo line-up as the “second gunman” who pointed a gun and participated in the robbery.  According to investigators, Curtis indicated that Irvin did not shoot either Sartain or Curtis.

Officers attempted to serve an arrest warrant on Irvin at apartment # 601, which was vacant.  Officers were directed to a different apartment, # 505, where Irvin had been observed.  Inside # 505, officers located a hospital medical card bearing appellant’s name, birthdate, and social security number, and a Medicaid card belonging to appellant.  With the information from the cards, officers created a photo line-up which included a photo of appellant.  Curtis identified appellant as the person who shot Sartain and him.  Inside the apartment, officers also recovered a box of .357 magnum ammunition as well as a photo of appellant with other people.  From the photo, Curtis confirmed appellant was the “same Richard” who lived below him and who shot Sartain and him. 

An autopsy report indicated Sartain died of two gunshot wounds to his head and neck.  A firearms expert determined that a bullet recovered from Sartain’s body was consistent with having been fired from a .38 special or a .357 firearm and was consistent with the same type of ammunition that investigators recovered in the apartment. 

In Curtis’s recorded statement to investigators, he described how he first encountered appellant, a man then-known to him only as “Richard,” and Irvin at a night club on the night of the shooting.  Curtis explained how appellant and Irvin later came to his apartment that evening to use Curtis’s phone and how they left after making a phone call, and returned again later in the evening bearing guns.  Curtis told investigators that the men took money from Sartain and him before they forced Curtis and Sartain downstairs into Sartain’s apartment in the same complex.  Curtis told the investigators that appellant shot Sartain in the head and chin and that Irvin fired once at Sartain.  Curtis told investigators that appellant then fired at him.  Curtis described appellant’s gun as a black revolver with a red tip.  In the recorded statement, Curtis confirmed that the man he identified as appellant from the photo line-up lived in apartment # 505, which was located downstairs and across from Curtis’s own apartment.  Curtis confirmed that he recognized Irvin, as identified in a photo line-up, from apartment # 601.

Appellant was charged by two separate indictments with capital murder of Sartain and aggravated robbery of Curtis.  Appellant pleaded “not guilty” to each charge.  The causes were consolidated for a jury trial. 

At trial, the court admitted as evidence Curtis’s recorded statement to investigators; however, Curtis admitted at trial that he lied to investigators about seeing appellant at a night club earlier that evening.  Curtis testified at trial that he first encountered appellant on the night of the shooting when appellant knocked on the door to Curtis’s apartment.  Curtis recalled that appellant asked to borrow Curtis’s phone, inquired about marijuana, and left the apartment shortly after making a phone call.  Curtis testified that around midnight appellant and Irvin knocked on Curtis’s door and forced their way inside, bearing .357 guns.  Appellant demanded money from Curtis.  Curtis gave appellant money and marijuana.  Sartain gave money to Irvin.  Appellant and Irvin searched Curtis’s drawers and a suitcase.

Curtis testified how appellant and Irvin then forced Sartain and Curtis downstairs to Sartain’s apartment.  Curtis recounted that appellant and Irvin searched Sartain’s apartment and found marijuana.  Curtis remembered hearing Irvin accuse Sartain of touching a gun and how Sartain apologized and then Curtis heard gunshots.  He testified that he saw Irvin shoot Sartain one or two times.  On cross-examination Curtis testified that both appellant and Irvin shot Sartain before turning their guns on Curtis, firing multiple times.  Curtis’s testimony at trial varied from his recorded statement as to the amount of money taken from him, the number of shots fired at him, and the length of his hospital stay for his recovery. 

A jury found appellant guilty as charged on each offense.  The trial court sentenced appellant to life imprisonment without parole for the conviction of capital murder and twenty-five years’ confinement for aggravated robbery.  The court ordered the sentences to be served concurrently.  On appeal, appellant challenges the sufficiency of the evidence to support his convictions.

II.  Issues and Analysis

In two issues, appellant asserts the evidence is factually insufficient to support his convictions for capital murder and aggravated robbery.[1]  According to appellant, the only evidence supporting his convictions is Curtis’s account of the events.  Appellant claims Curtis’s testimony is unreliable because Curtis offered inconsistent facts regarding the amount of money taken from him, which assailant shot Sartain, the number of injuries he sustained, and the length of his hospital stay for his recovery.  Appellant characterizes Curtis’s testimony as untrustworthy because Curtis is a convicted felon who sold drugs and admitted lying to investigators about the events leading up to the shootings.

When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury’s verdict.  Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006).  It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict.  Id. at 417.  If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction.  Id. at 414B17.  Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony.  See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  In conducting a factual‑sufficiency review, we discuss the evidence appellant claims is most important in allegedly undermining the jury’s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

A person commits the offense of capital murder if that person intentionally or knowingly causes the death of an individual while in the course of committing a felony.  Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003 & Supp. 2007).  In the first indictment in this case, the State charged appellant with intentionally causing the death of Sartain by shooting Sartain with a firearm, a deadly weapon, while in the course of committing or attempting to commit a robbery of Sartain.  A robbery is a second-degree felony.  Tex. Penal Code Ann. § 29.02(b) (Vernon 2003). 

In the second indictment, the State charged appellant with intentionally threatening and placing Curtis in fear of imminent bodily injury and death while in the course of committing theft of property owned by Curtis and with intent to obtain and maintain control of the property while using a firearm, a deadly weapon.  A person commits the offense of robbery if, in the course of committing theft and with intent to obtain and maintain control of property, that person intentionally, knowingly, or recklessly causes bodily injury to another or places another in fear of imminent bodily injury or death.  Tex. Penal Code Ann. § 29.02(a).  The offense becomes aggravated robbery if the person committing the robbery causes serious bodily injury to another or uses or exhibits a deadly weapon.  Tex. Penal Code Ann. § 29.03(a) (Vernon 2003). 

Appellant complains that no physical evidence links him to Sartain’s and Curtis’s apartments and that the only evidence connecting him to the charged offenses is Curtis’s testimony.  The testimony of a single eyewitness is sufficient to support a jury’s verdict.  See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971).  At trial, Curtis described how he recognized appellant from the apartment complex.  An investigator testified that Curtis told officers appellant’s first name and indicated that appellant lived in an apartment downstairs and across from Curtis’s own apartment, # 505, which is the same apartment in which investigators found medical cards bearing appellant’s name.  Curtis, both in his recorded statement and in his trial testimony, maintained that appellant and Irvin entered his apartment with guns and took money from him and Sartain and him before they were forced into Sartain’s apartment. 

Curtis’s account varied somewhat as to who shot Sartain.  In his recorded statement to investigators, Curtis claimed that both appellant and Irvin shot at Sartain.  In this statement, Curtis indicated that appellant shot Sartain in the head and chin; the location of Sartain’s wounds was corroborated by the autopsy report.  At trial, Curtis testified on direct examination that Irvin shot Sartain, and then appellant and Irvin turned and fired at Curtis; however, on cross-examination, Curtis testified that both appellant and Irvin shot Sartain before taking turns shooting at Curtis.  Curtis’s account also varied as to the amount of money taken from him, the number of injuries he sustained from the gunshots, and the length of his hospital stay in treating his injuries. 

Appellant urges this court to act as a “thirteenth juror” in considering the inconsistencies offered by Curtis; however, the weight to be given contradictory testimonial evidence is within the sole province of the fact-finder.  See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).  A fact-finder may judge the credibility of witnesses and may choose to believe all, some, or none of the testimony presented.  See id. at 407 n.5. 

Although appellant argues that Curtis’s testimony was unreliable because of inconsistencies, conflicting testimony does not destroy the sufficiency of the evidence.  See id. at 410 (providing that a jury’s decision is not manifestly unjust if the jury resolved conflicting views of the evidence in favor of the State); Guajardo v. State, 176 S.W.3d 402, 404–05 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding evidence factually sufficient despite allegations that the State’s case rested entirely on complaining witness’s testimony that was not credible).  Rather, contradictory evidence affects the weight of the evidence and a witness’s credibility.  See Cain, 958 S.W.2d at 408–409 (providing that the weight of contradictory testimonial evidence is within the jury’s sole consideration).

Similarly, though appellant challenges Curtis’s credibility, characterizing Curtis as a “self-admitted drug dealer and convicted felon” who lied to police in his statement, the jury, as sole judge of the credibility of the witnesses and the weight to be given to witness testimony, may believe all or any part of a witness’s testimony.  See Vasquez v. State, 67 S.W.3d 229, 237–38 (Tex. Crim. App. 2002) (holding evidence not insufficient for capital murder even if surviving complainant admitted using drugs when crime occurred). Finally, although appellant complains that Curtis offered inconsistencies as to the amount of money taken from him, the number of injuries he sustained, and the length of his hospital stay, none of these factors definitively favor or contradict the jury’s verdict.  See Cain, 958 S.W.2d at 409 (involving a complaining witness whose testimony was confusing and conflicting). 

Viewing the evidence in a neutral light, we are not able to say with some objective basis in the record that appellant=s convictions are clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury=s verdict.  See Vasquez, 67 S.W.3d at 238–39 (holding evidence legally and factually sufficient to support conviction for capital murder committed in the course of robbery); Cruz v. State, 238 S.W.3d 381, 388 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (holding evidence factually sufficient to support conviction for aggravated robbery despite allegations that complaint’s testimony identifying the appellant as an assailant was not credible); see generally Watson, 204 S.W.3d at 417.  We hold that the evidence is factually sufficient to support appellant=s convictions, and overrule appellant’s two issues on appeal.

The trial court’s judgment is affirmed.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Panel consists of Justices Yates, Frost, and Brown.

Do Not Publish — Tex. R. App. P. 47.2(b)

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[1] Because a factual-sufficiency review begins with a presumption that the evidence supporting the jury’s verdict is legally sufficient, and because appellant challenges only the factual sufficiency of the evidence, appellant effectively concedes the evidence is legally sufficient to sustain the convictions.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).