Willie Gunnel A/K/A Willie Gunnell Kizzee v. State

• Court: Court of Appeals of Texas
• Decided: March 1, 2005
• Docket: 14-04-00214-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 1, 2005

Affirmed and Memorandum Opinion filed March 1, 2005.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00214-CR

WILLIE GUNNEL A/K/A WILLIE GUNNELL KIZZEE, Appellant

V.

THE STATE OF TEXAS, Appellee

_________________________________________________________________

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 43,332

_________________________________________________________________

M E M O R A N D U M   O P I N I O N

A jury convicted appellant, Willie Gunnel, a/k/a Willie Gunnell Kizzee, of aggravated robbery and sentenced him to sixty years= confinement.  In six issues, appellant contends that (1) the trial court erred in denying his motion to suppress a videotaped lineup and subsequent identification, (2) the trial court erred in allowing testimony regarding appellant=s possession of .22 caliber bullets discovered during a pat-down search, and (3) the evidence is legally and factually insufficient to support his conviction.  We affirm.

I.  Background

On July 25, 2002, Rafiqali Momin was working as a cashier at a convenience store in Brazoria County, Texas, when he observed three black men enter the store.  Momin testified that one of the men approached the counter seemingly intending to purchase a beverage.  When Momin opened the cash register, the man reached over the counter and took an undisclosed amount of money.  Appellant was identified by a customer, Eric Larson, who saw him fleeing the store.

Alfred Ozene was driving past the store at the same time that the suspects were fleeing.  Ozene testified that he saw two black men approach a blue Mountaineer SUV.  Ozene observed one of the men pull a pack of beer from underneath his shirt.  Because Ozene believed the men were attempting to steal the beer, he followed the SUV as it sped out of the parking lot.  Ozene was able to obtain the license plate number, which he subsequently provided to police. 

Police officers investigating the robbery quickly discovered that the SUV used in the robbery was also connected to a prior convenience store robbery in Harris County and that the SUV used in the robberies was registered to a woman named Harjew.^[1]  The police proceeded to Harjew=s home to inquire about the vehicle.  Harjew informed the police that she had loaned the vehicle to her son, Carlos Reyes, about ten days earlier.  While the officers were questioning Harjew, Reyes arrived at the location. 

Officer Jeffrey, a lead investigator in the Harris County robbery, read Reyes his Miranda rights, and Reyes was then interviewed by the officers.  He informed them that on the day of the Brazoria County robbery, he had allowed a man identified as AWillie@ to use the SUV in exchange for $20 and some narcotics.  Officer Jeffrey testified that Reyes=s description of AWillie@ was almost identical to the description of one of the suspects in the Harris County robbery.  Reyes informed the officers that he had seen Willie with a gun.  Reyes stated that he had recently dropped Willie off at a location on Simmons Street known as a crack house, and he agreed to accompany the officers to that location.

When the officers arrived at the Simmons Street house, appellant was sitting on the front porch.  The record reflects that several other individuals were also present at the house. The officers instructed everyone at the house to Astay where they were@ and to Aput their hands in the air.@  According to Officer Jeffrey, after the individuals at the house were instructed to Aput their hands where we could see them,@ appellant placed his hands into his pockets and attempted to go inside the house.  The officers drew their weapons and ordered appellant to come out of the house.  Appellant complied and walked back onto the porch.  The officers performed a pat-down search of appellant and discovered nineteen .22 caliber bullets in appellant=s pocket, the same caliber as the gun described in the Harris County robbery.

Appellant was handcuffed and placed in the back of a patrol car where he was questioned by Officer Jeffrey.  During the questioning, appellant claimed he had not borrowed the SUV that was used in the robberies.  Because Officer Jeffrey did not believe appellant was telling the truth, he terminated the interview.  Officer Jeffrey testified, AAt that point [appellant] apologized and said he wanted to talk to me and heCthat he had lied and he knew he had lied, and his lie was that he had never been in that vehicle . . . .@  However, Officer Jeffrey did not speak with appellant any further.

Appellant was transported to the police station where he was placed in a videotaped lineup.  An eyewitness from the Brazoria County robbery viewed the videotaped lineup and identified appellant as one of the robbery participants. 

II.  Admissibility of Videotaped Lineup

In his first and second issues, appellant contends that the trial court erred in denying his motion to suppress the videotaped lineup, and subsequent identification, because (1) they were procured as the result of an illegal arrest conducted without probable cause in violation of Article I, section 9 of the Texas Constitution, and (2) the arrest did not fall within a statutory exception to the warrant requirement.  We address both of these issues in turn.

A.        Standard of Review

In reviewing a trial court=s ruling on a motion to suppress, we give almost total deference to a trial court=s determination of historical facts, and we review de novo the court=s application of the law of search and seizure.  State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 88B89 (Tex. Crim. App. 1997)).  At a hearing to suppress evidence, the trial court is the sole judge of the weight and credibility of the evidence.  See State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).  In this case, the trial court did not make explicit findings of historical fact, so we review the evidence in a light most favorable to the trial court=s ruling.  O=Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000).

B.        Constitutionality of Warrantless Arrest 

Article I, Section 9 of the Texas Constitution forbids unreasonable searches and seizures.  Tex. Const. art. I, ' 9.  When an accused challenges a warrantless arrest under the Texas Constitution, the proper inquiry is the reasonableness of the seizure under the totality of the circumstances.  State v. Steelman, 93 S.W.3d 102, 106 n.5 (Tex. Crim. App. 2002).  In order to satisfy the reasonableness requirement, a warrantless arrest must be supported by probable cause.  See Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995).  Probable cause to arrest exists when the facts and circumstances within the officer=s knowledge, and of which the officer had reasonably trustworthy information, were sufficient to warrant a prudent person in believing that the suspect has committed or was committing a crime.  Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991); Cornejo v. State, 917 S.W.2d 480, 482B83 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d).  AProbable cause deals with probabilities; it requires more than mere suspicion but far less evidence than that needed to support a finding by a preponderance of the evidence.@  State v. Parson, 988 S.W.2d 264, 268 (Tex. App.CSan Antonio 1998, no pet.).  When more than one officer participates in the arrest, we examine the cumulative information known to all the officers.  See Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993).

In this case, much of the relevant information leading to appellant=s arrest was provided by Carlos Reyes.  During the interview with Reyes, the officers learned that a man named AWillie@ had borrowed the SUV that was used in the robberies.  According to Reyes, Willie borrowed the SUV from about 10:00 a.m. until 9 or 10:00 p.m. on the same day that the Brazoria County robbery was committed.  Reyes told the officers that he socialized with Willie after Willie returned the SUV and that, during this period of time, Willie was carrying a gun.  Reyes also provided the officers with a description of Willie, which corresponded to a description of one of the Harris County robbery suspects.  Finally, Reyes informed the officers that he had dropped Willie off at a specific location on Simmons Street.

It was Officer Jeffrey=s opinion that he did not possess sufficient information to obtain an arrest warrant after speaking with Reyes.  However, our review of the record indicates that sufficient probable cause to arrest appellant was subsequently developed.

Probable cause to arrest a person can exist based on a tip from a reliable and credible informant, if the informant=s statements are highly detailed and, before making the arrest, the officers verify the details given by the informant.  Curry v. State, 965 S.W.2d 32, 34 (Tex. App.CHouston [1st Dist.] 1998, no pet.) (finding probable cause where detailed description of the defendant and his first name was provided); Whaley v. State, 686 S.W.2d 950, 951 (Tex. Crim. App. 1985) (holding probable cause existed where informant described defendant wearing a white shirt with colored trim and blue jeans, and the bag he was carrying).  The evidence at trial must show the informant=s reliability and credibility.  Eisenhauer v. State, 678 S.W.2d 950, 951 (Tex. Crim. App. 1984).  An informant=s reliability can be proved by showing the informant has provided truthful information in the past.  Rodriquez v. State, 838 S.W.2d 780, 782 (Tex. App.CCorpus Christi 1992, no pet.).  Another way is to corroborate the information through independent investigation.  See id.  Reliability is strengthened if the tip is based on personal observation rather than hearsay and if the tip is given in great detail, showing the informant has a strong basis for his knowledge.  Id. 

In this case, Reyes had not previously provided credible and reliable information to the officers.  However, Reyes=s information regarding appellant=s use of the vehicle was based on personal, first-hand knowledge, as opposed to rumor or hearsay.  See Hackleman v. State, 919 S.W.2d 440, 447 (Tex. App.CAustin 1996, pet ref=d, untimely filed).  Reyes had personally loaned the vehicle to appellant and also observed appellant carrying a gun and a large amount of cash.

Moreover, the officers were able to corroborate the information provided by Reyes.  After interviewing Reyes, the officers proceeded to the Simmons Street house where Reyes told the police he had left Willie.  When the officers encountered appellant at that location, they verified that appellant=s name was Willie and that he matched the description of one of the robbery suspects.  Officer Jeffrey testified that appellant was the only individual at the crack house matching the description of any suspect.

In addition to the information initially provided by Reyes and subsequently corroborated by further investigation, there were developments at the Simmons Street house which support probable cause.  First, when the officers arrived at the house, appellant put his hands in his pockets and attempted go inside the house.  Avoiding officers is a factor to consider when determining probable cause.  Guzman, 955 S.W.2d at 90 (citing Pyles v. State, 755 S.W.2d 98, 109 (Tex. Crim. App. 1988)). 

Additionally, furtive actions at the approach of police officers, when coupled with specific knowledge on the part of the officers connecting the suspect to the evidence of crime, are proper factors to consider in determining whether probable cause supports a decision to arrest.  See Muniz v. State, 672 S.W.2d 804, 806 (Tex. Crim. App. 1984).  Here, in addition to appellant=s furtive gestures, the officers had specific knowledge connecting appellant to the robberies.  Namely, the information provided by Reyes linked appellant to the SUV used in the robberies.  Moreover, when the officers conducted a pat-down search, they discovered nineteen rounds of .22 caliber ammunition, the same caliber as the gun described in the Harris County robbery.  Finally, when appellant was questioned by officers, he initially claimed that he had never been in the SUV used in the robberies, but when the officers terminated the interview, appellant admitted that his statement was not truthful.  

To determine whether probable cause exists, we review all of the facts and circumstances known by the officers at the time of the arrest.  Amores, 816 S.W.2d at 413; Johnson v. State, 32 S.W.3d 294, 298 (Tex. App.CSan Antonio 2000, pet. ref=d).  In sum, the information known to the officers at the time of appellant=s arrest is as follows: (1) a blue SUV had been used in a string of robberies; (2) Carlos Reyes loaned the SUV to an individual named AWillie@ during the same period of time that the Brazoria County robbery had been committed; (3) Carlos Reyes dropped Willie off at a crack house on Simmons Street on the night of the Brazoria County robbery; (4) appellant=s first name is Willie, and he was sitting on the front porch of the same crack house on Simmons Street; (5) appellant matched the reported description of one of the suspects in the Harris County robbery; (6) when police officers arrived at the crack house, appellant put his hands in his pockets and attempted to avoid the officers by walking inside the house; (7) a pat-down search of appellant revealed nineteen rounds of .22 caliber ammunition, the same caliber as the gun described in the Harris County robbery; and (8) when appellant was questioned, he initially claimed that he had never been in the SUV used in the robberies, but when officers terminated the interview, appellant admitted that his answer was not truthful.

Considering the totality of the circumstances in this case, including the information provided by Reyes, the subsequent corroboration of details, and the observations made at the Simmons Street house, we conclude that probable cause existed for the officers to make a warrantless arrest.  Therefore, the arrest did not violate appellant=s rights under Article I, Section 9 of the Texas Constitution.  

C.        Statutory Authorization to Arrest

Under Texas law, a warrantless arrest must fall within one of the exceptions to the warrant requirement set forth in Chapter 14 of the Code of Criminal Procedure.  See Amores, 816 S.W.2d at 413.  The trial court did not explicitly find which exception to the warrant requirement authorized appellant=s warrantless arrest.  However, the facts and circumstances of the arrest support an implicit finding that the officers had authority to arrest appellant without a warrant under article 14.03(a)(1) of the Texas Code of Criminal Procedure. 

Article 14.03(a)(1) permits a peace officer to arrest a person without a warrant if the person is found in a suspicious place and under circumstances that reasonably show that such person has been guilty of some felony or breach of the peace.  Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon Supp. 2004B05).  To justify a warrantless arrest under article 14.03(a)(1), the State must prove (1) the existence of probable cause that the defendant committed a crime, and (2) that the defendant was found in a Asuspicious place.@  Goldberg v. State, 95 S.W.3d 345, 363 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d); Parson, 988 S.W.2d at 266.  We have determined that the officers had probable cause to arrest appellant.  Now, we must address whether appellant was found in a Asuspicious place.@

Determining whether a place is Asuspicious@ is a highly fact-specific question.  Parson, 988 S.W.2d at 268.  Few places are inherently suspicious, but a Aplace may become suspicious because of facts and circumstances known to the officer and any reasonable inferences which can be drawn from those facts.@  Cornejo, 917 S.W.2d at 483.  A place can be suspicious because (1) an eyewitness or police officer connected the place to the crime, (2) a crime occurred there, or the police reasonably believed a crime occurred there, (3) specific evidence directly connected the defendant or the place with the crime, or (4) appellant=s behavior was a factor in determining whether a place was suspicious.  Goldberg, 95 S.W.3d at 363.

In this case, appellant was found on the front porch of a known crack house.  The officers had specific information that an aggravated robbery suspect, identified as AWillie,@ had recently been dropped off at the location. When officers arrived at the location, they discovered that appellant=s name was Willie and that he matched the description of one of the robbery suspects.  The officers also observed appellant put his hands in his pockets and attempt to enter the house after they had instructed everyone to Aput their hands where we could see them.@

We hold that the circumstances under which the officers were at the Simmons Street house, combined with appellant=s suspicious behavior, rendered the house a suspicious place. Therefore, the officers had authority to arrest appellant without a warrant under article 14.03(a)(1).  See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1).

We overrule appellant=s first and second issues.

IV.  Constitutionality of the Search

In his third issue, appellant contends that the trial court improperly admitted testimony at the punishment hearing regarding the .22 caliber bullets because the bullets were obtained during an illegal search at the Simmons Street house.  Appellant does not dispute that the officers had reasonable suspicion for an investigative detention at the time of the pat-down search.  However, appellant argues that when the pat-down search was performed, he was under arrest without probable cause and not merely being detained.  Therefore, to resolve this issue, we must determine whether appellant was under arrest at the time of the search. 

A.        Arrest or Investigative Detention?

The standard for distinguishing between an investigative detention and an arrest is not always clear because both constitute seizures.  See Josey v. State, 981 S.W.2d 831, 839 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).  Article 15.22 of the Texas Code of Criminal Procedure provides that A[a] person is arrested when he has been actually placed under restraint or taken into custody.@  Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 1977).  Whether a detention is an actual arrest or an investigative detention depends on the reasonableness of the intrusion under all of the facts.  See Rhodes v. State, 945 S.W.2d 115, 118 (Tex Crim. App. 1997). 

During an investigative detention, an officer may employ the force reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety.  Id. at 117.  However, if the force utilized exceeds that reasonably necessary to effect the goal of the stop, such force may transform an investigative detention into a full-blown arrest.  See State v. Moore, 25 S.W.3d 383, 385B86 (Tex. App.CAustin 2000, no pet.). Reasonableness must be judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight.  Rhodes, 945 S.W.2d at 118.  Allowances must be made for the fact that officers must often make quick decisions under tense, uncertain, and rapidly changing circumstances.  Id.

Additional factors to consider in determining the reasonableness of the detention include the nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, and the reaction of the suspect.  Moore, 25 S.W.3d at 386.  The officer=s opinion, while not determinative, is another factor to be considered.  Amores, 816 S.W.2d at 412.  Also important is whether the officers actually conducted an investigation after seizing the suspect.  Moore, 25 S.W.3d at 386. 

At the suppression hearing, Officer Jeffrey testified that appellant was not under arrest until he was escorted to the police station.  However, appellant argues that the officers= actions once they arrived at the Simmons Street house indicate that appellant was under arrest before the pat-down search.  To support his contention that he was under arrest, appellant cites two Court of Criminal Appeals cases.

In Hoag v. State, the officers placed the appellant under surveillance for the purpose of apprehending him in a burglary.  728 S.W.2d 375 (Tex. Crim. App. 1987).  The officers stopped the appellant=s vehicle after observing the appellant leave an apartment complex from which they suspected he had committed a burglary.  Id.  The appellant was removed from the car at gunpoint, taken to the rear of the car, and given statutory warnings.  Id.  The court held that the appellant was under arrest when he was removed from the car at gunpoint. Id. at 379.

In Amores, a police officer responded to a Aburglary in progress@ call from an apartment complex indicating a black male was loading a box into a car.  Id. at 410.  The officer arrived at the scene within one minute of the call and observed the appellant, a black male, sitting in a parked car.  Id.  As the officer entered the complex parking lot, the appellant began to drive away.  Id.  The officer blocked the appellant=s vehicle with his police car, drew his gun and pointed it at the appellant, ordered him out of the vehicle, made him lie on the ground with his hands behind his back, and told him that he would shoot him if he did not follow directions.  Id.  The court held that A[t]hese facts are sufficient to demonstrate that appellant had been restricted or restrained in his liberty to such a degree as to constitute an arrest.@  Id. at 412.

Like Hoag and Amores, the officers in this case drew their weapons in the course of detaining appellant.  However, unlike Hoag and Amores, there were officer safety concerns present in this case that necessitated the officers= display of force.  In this case, the police encountered appellant after midnight at a known crack house.  The officers were aware that an aggravated robbery suspect had recently been dropped off at that location.  The officers also knew that the suspect had been seen carrying a gun.  Further, when the officers arrived at the location, they observed appellant reach into his pocket and attempt to avoid the officers.  Thus, in order to safely continue their investigation, it was reasonable for the officers to draw their weapons and secure appellant.

Moreover, unlike Amores, the officers in this case conducted further investigation after the detention.  Once appellant was secured in the back of the patrol car, Officer Jeffrey initiated an interview of appellant.  The interview was terminated immediately after Officer Jeffrey believed that appellant provided an untruthful answer.

Under the circumstances of this case, we find that appellant was subject only to an investigative detention, not an arrest, at the time of the pat-down search.  Therefore, we reject appellant=s argument that the search was performed incident to an unlawful arrest conducted without probable cause.

B.        Scope of the Search

Alternatively, appellant argues that even if he was only subject to an investigative detention at the time of the pat-down search, the .22 caliber bullets were nonetheless seized unlawfully because the search exceeded the permissible scope of a weapons frisk.  However, we find that appellant has failed to preserve this argument for appellate review.

A motion to suppress is nothing more than a specialized objection to the admission of evidence.  See Martinez v. State, 17 S.W.3d 677, 682B83 (Tex. Crim. App. 2000).  An objection to the admission of evidence must be specific, and the grounds for the objection must be clearly expressed in order to preserve error.  Tex. R. App. P. 33.1(a); Villareal v. State, 811 S.W.2d 212, 217 (Tex. App.CHouston [14th Dist.] 1991, no pet.).  If the objection in the trial court differs from the complaint made on appeal, the defendant has failed to preserve error for review.  Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). 

The only specific objection raised in appellant=s motion to suppress was that the arrest and subsequent search were conducted Awithout [a] valid warrant or without probable cause or reasonable suspicion . . . .@  In his motion to suppress, appellant did not contend the search was invalid because the officers exceeded the permissible scope of a pat-down search incident to an investigative detention.  Moreover, appellant made no argument before the trial court regarding the permissible scope of the search. 

Because appellant failed to raise this issue in the trial court, the record is devoid of any testimony concerning the officer=s tactile perceptions as he performed the pat-down search.  See Carmouche v. State, 10 S.W.3d 323, 330 (Tex. Crim. App. 2000) (holding that an officer performing pat-down search may seize an object whose contour or mass makes its identity immediately apparent ).  Therefore, there is nothing for us to review, and appellant has waived this argument.

We overrule appellant=s third issue.

V.  Sufficiency of the Evidence

In his fourth, fifth, and sixth issues, appellant challenges the sufficiency of the evidence to support his conviction.  Specifically, appellant contends (1) the evidence is legally and factually insufficient to prove that he used or exhibited a deadly weapon during the course of the robbery, and (2) the evidence is factually insufficient to prove his identity as a participant in the offense.

In reviewing legal sufficiency of evidence, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318B19 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000).  In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).  When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

In reviewing factual sufficiency of evidence, we view all of the evidence in a neutral light to determine whether the evidence supporting the finding of guilt is so weak, or the contrary evidence so strong, that the beyond-a-reasonable-doubt standard could not have been met.  See Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004).  Although we review the fact finder=s weighing of the evidence, and we are authorized to disagree with the fact finder=s determination, our evaluation should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility given to witness testimony.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  In our review, we must consider the evidence that the appellant claims most undermines the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

A person commits the offense of aggravated robbery if that person (1) in the course of committing theft, (2) with the intent to obtain and maintain control of property, (3) knowingly and intentionally, (4) threatens or places another in fear of imminent bodily injury or death, and (5) then and there uses or exhibits a deadly weapon.  Tex. Pen. Code Ann. ' 29.03 (Vernon 2003).

A.        Deadly Weapon Finding

Appellant first contends that the evidence is legally and factually insufficient to support a conviction for aggravated robbery because there was only speculation that he used or exhibited a firearm.  The trial court=s charge to the jury included an instruction on the law of parties.  See Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 2003).  Therefore, we will sustain appellant=s conviction if the evidence is sufficient to prove that any one of the suspects used or exhibited a deadly weapon during the robbery.  

The cashier, Rafiquali Momin, was the only witness to the events in the convenience store.  At trial, Momin gave conflicting testimony as to whether one of the robbers exhibited a firearm during the robbery.  On direct examination, the prosecutor asked Momin, AWhich individual, sir, pointed the gun at you?@  Momin responded, A[One of the robbers] pulled the [emergency] switch button and he showed me gun.@  However, Momin then stated that he was not sure whether the weapon displayed was a gun.  When the prosecutor questioned him further, Momin stated that he believed the object was a gun, and he was very scared when the robber showed him the object.

The State presented testimony from several individuals who spoke with Momin following the robbery.  Alfred Ozene was present at the convenience store shortly after the robbery.  Ozene testified when he entered the store, Momin stated that he had been robbed with a gun.  Further, Deputy Chris Carson interviewed Momin following the robbery.  Deputy Carson testified that during the interview, Momin stated that one of the robbers displayed a small pistol.  According to Carson, Momin described the pistol as a small dark gun.  Finally, Eric Larson testified that he spoke with Momin following the robbery.  Larson testified that Momin was not certain whether the weapon shown to him was a gun.  However, Larson testified that the object Awas enough to make [Momin] want to cooperate [with the robbers].@ 

The weight given to any contradictory testimonial evidence presented is within the sole province of the jury, as it turns on an evaluation of credibility and demeanor.  Cain v. State, 958 S.W.2d 404, 408B09 (Tex. Crim. App. 1997).  Thus, the jury is free to believe all or any part of the testimony presented.  Id.  In this case, the record shows that Momin did not want to testify and that he believed testifying was Aa risk.@  When defense counsel asked Momin why he did not want to testify, Momin replied, AI don=t know.  I=m so squared [sic].  That=s why I don=t want to testify. I don=t remember nothing.@  Under these facts, the jury was free to believe the testimony of both Alfred Ozene and Deputy Carson that shortly after the robbery, Momin was able to positively identify the weapon as a gun.  The jury was also free to disbelieve Momin=s later testimony that he was not sure whether the weapon was a gun.

Furthermore, even if Momin was not sure whether the weapon displayed was a gun, the evidence is nonetheless sufficient to support appellant=s conviction. The state may rely on circumstantial evidence to establish the use of a deadly weapon.  Michel v. State, 834 S.W.2d 64, 67 (Tex. App.CDallas 1992, no pet.); Webber v. State, 757 S.W.2d 51, 54 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d).  Further, the State does not have to prove the witness actually saw the weapon to establish its use.  Michel, 834 S.W.2d at 67; Webber, 757 S.W.2d at 54.

At trial, Momin repeatedly testified that the weapon used in the robbery looked like a gun.  Momin also testified that the robber displayed the weapon after stating, AMove it.  Move it.@  Additionally, Carlos Reyes testified that appellant was carrying a .22 caliber handgun in the days following the robbery.  Based on this testimony, the jury was entitled to conclude that the .22 caliber handgun that appellant was seen carrying was the same weapon displayed in the convenience store. 

Viewing the evidence in a light most favorable to the verdict, a rational jury could have concluded beyond a reasonable doubt that a firearm was used or exhibited during the robbery.  Viewing all the evidence in a neutral light, the State=s evidence, when considered by itself, is not too weak to support a finding beyond a reasonable doubt that a firearm was used or exhibited during the robbery, and the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met.  Accordingly, we find that the evidence is legally and factually sufficient to prove the use or exhibition of a deadly weapon.  B.  Identity

Appellant next contends that the evidence is factually insufficient to prove his identity as one of the perpetrators of the offense.  To support his argument, appellant emphasizes that Eric Larson, the only eyewitness to identify appellant, only viewed appellant for two to four seconds as appellant was fleeing the convenience store.    

It is well established that a conviction may be based upon the testimony of a single eyewitness.  Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Lewis v. State, 126 S.W.3d 572, 575 (Tex. App.CTexarkana 2004, pet. ref=d).  In this case, although Larson viewed appellant for two to four seconds, Larson was able to positively identify appellant in a lineup that included appellant and other individuals with similar physical characteristics.  Larson explained that he was able to get a good look at appellant.  Larson also testified that he recognized appellant Athe moment@ he saw appellant in the lineup.  Under these circumstances, we properly defer to the jury the weight given to Larson=s testimony.  

Viewing the evidence in a neutral light, the State=s evidence, when considered by itself, is not too weak to support a finding beyond a reasonable doubt that appellant was a participant in the robbery, and the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met.  Appellant=s fourth, fifth, and sixth issues are overruled. 

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed March 1, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

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

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^[1]  Harjew=s first name is not revealed in the record.