No. 01
- 1 5
- 00 483
- CR In the Court of Appeals For the F i r s t District of Texas At Houston

     

     No. 1 439664 In the 182nd District Court Of Harris County, Texas

     

     WILLIE MCDOWELL Appellant V. THE STATE OF TEXAS Appellee

     

     STATE’S APP ELLATE BRIEF

     

     D EVON A NDERSON District Attorney Harris County, Texas
D AN M C C RORY Assistant District Attorney Harris County, Texas mccrory_daniel@dao.hctx.net
A NDREA H ANDLEY A MANDA P E TROFF Assistant District Attorney s Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 Tel.: 713/274

- 5826 FAX No.: 713/755

- 5809 Counsel for Appellee
ORAL ARGUMENT WAIV ED ACCEPTED 01-15-00483-CR FIRST COURT OF APPEALS

HOUSTON, TEXAS 11/3/2015 3:35:52 PM CHRISTOPHER PRINE

CLERKi STATEMENT REGARDING ORAL ARGUMENT

Pursuant to T EX

. R. A P P

. P. 39.7 , the State waive s oral argument.ii TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT

................................ .................. i
INDEX OF AUTHORITIES

................................ ................................ .................... iii
STATEMENT OF THE CASE

................................ ................................ ................... 1
STATEMENT OF FACTS

................................ ................................ ......................... 1
SUMMARY OF THE ARGUMENT

................................ ................................ ......... 1
REPLY TO POINT OF ERROR ONE

................................ ................................ ....... 2
CONCLUSION

................................ ................................ ................................ .......... 6
CERTIFICATE OF SERVICE

................................ ................................ ................... 7
CERTIFICATE OF COMPLIANCE

................................ ................................ ......... 7iii INDEX OF AUTHORITIES

CASES

Anderson v. State , 416 S.W.3d 884 (Tex. Crim. App. 2013)

................................ ................................ 3 Bradley v. State , 359 S.W.3d 912 (Tex. App.

-- Houston [14th Dist.] 2012, pet. ref’d)

............ 3, 4, 5 Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010)

................................ ................................ 3 Callahan v. State , 502 S.W.2d 3 (Tex. Crim. App. 1973)

................................ ................................ .... 5 Clayton v. State , 235 S.W.3d 772 (Tex. Crim. App. 2007)

................................ ................................ 4 Gear v. State , 340 S.W.3d 743 (Tex. Crim. App. 2011)

................................ ................................ 2 Griego v. State , 337 S.W.3d 902 (Tex. Crim . App. 2011)

................................ ................................ 3 Harmon v. State , 167 S.W.3d 610 (Tex. App.

-- Houston [14th Dist.] 2005, pet. ref’d)

..................... 3 Herrero v. State , 124 S.W.3d 827 (Tex. App.

-- Houston [14th Dist.] 2003, no pet.)

......................... 4 Jackson v. Virginia , 443 U.S. 307 (1979)

................................ ................................ ............................... 2 Laster v. State , 275 S.W.3 d 512 (Tex. Crim. App. 2009)

................................ ................................ 3 Madden v. State , 799 S.W.2d 683 (Tex. Crim. App. 1990)

................................ ................................ 2iv

Sharp v. State , 707 S.W.2d 611 (Tex. Crim. App. 1986)

................................ ................................ 4
RULES

T EX

. R. A PP

. P. 39.7

................................ ................................ ................................ .... iTO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE Appellant was charged by indictment with the offense of aggravated robbery. (CR 8). After the jury found appellant guilty of the charged offense, the trial judge assessed punishment at 35

- years confinement. (CR 237).

STATEMENT OF F

ACTS The complainant, Itashia Corbin, was at home with her one

- year
- old daughter when she answered a knock at her front door. (RR III 19

- 22, 51). Once she opened the door, appellant and another man “bum rushed” into her home. (RR
III 22

- 24). Both men we re carrying guns. (RR III 23). Appellant held the complainant at gunpoint while his partner went “through the house” and gathered items such as an Xbox, shoes, and cash. (RR III 25

- 26). After “they grabbed what they could,” appellant and his accomplice l eft with the loot . (RR III 26

- 27). The complainant chased appellant, prompting him to fire his gun in the air. (RR III 27).

SUMMARY OF THE ARGUMENT Since the testimony of a single eyewi tness is suff icient to support a
conviction and t he complainant ’s testimony establishes each element of the charged offense, the evidence is sufficient to support appellant ’ s conviction. Furthermore, any inconsistencies in the complai nant ’ s testimony do not un d ermine2

the sufficiency of the evidence because the jury is presu med to have resolved any
incons i s tencies in favor of the verdict.

REPLY TO POINT OF ERROR ONE In his sole point of error, appellant contends the trial judge erred by denying
his motion for an instructed verdict. (RR III 202). Appellant argues he was entitled

to an instructed verdict because the evidence is insufficient to support h is conviction for aggravated robbery. Regarding his insufficiency claim , a ppellant
maintains the complainant was not credible due to inconsistencies in her testimony. A challenge to a trial judge ’ s ruling on a motion for an instructed for verdict is actually a challenge to the sufficiency of the evidence to support the conviction

. Madden v. State , 799 S.W.2d 683, 686 (Tex. Crim. App. 1990)

. In determining whether the evidence is sufficient to support a conviction, a reviewing court must
consider all the evidenc e in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, any rational factfinder could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia , 44 3 U.S. 307, 318

- 19 (1979) ; Gear v. State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) . This standard give s full play to the responsibility of the factfinder to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Gear , 340 S.W.3d at 746 (quoting Jackson , 443 U.S. at 319). When th e record3

supports conflicting inferences, the reviewing court presumes the jury resolved the
conflicts in favor of the State and defers to that determination. Anderson v. State , 416 S.W.3d 884, 888 (Tex. Crim. App. 2013)

. This standard applies equally to
circumstantial and direct evidence. Laster v. State , 275 S.W.3d 512, 517

- 18 (Tex. Crim. App. 2009)

. 1 The complainant testified that appellant forced his way into her home and held a gun on her, causing her to fear death, while appellant’s accomplice stole her property. (RR III 19

- 26). She stated she was positive that appellant is “the man that came into [her] home and took [her] property and held [her] at gunpoint.” (RR III 77). The complainant’s testimony establishes all of the elements of the offense as alleged in the indictment. (CR 9). A robbery victim’s testimony, standing alone , is sufficient to support a
conviction. Bradley v. State , 359 S.W.3d 912, 91 8 (Tex. App.

-- Houston [14th Dist.] 2012, pet. ref ’ d) ; Harmon v. State , 167 S.W.3d 610, 614 (Tex. App.

-- Houston [14th Dist.] 2005, pet. ref’d)

. Therefore, the complainant ’ s testimony , which alone prove s the alleged offense, is sufficient to support appellant ’ s conviction. Id

.

1 Appellant asks this Court to conduct a legal and factual sufficiency review, employing diff erent standards for the two proposed analyses. (appellant’s brief, pp. 9

- 10). It is well settled, however, that the Jackson v. Virginia standard is the only standard that an appellate court should apply in determining the sufficiency of the evidence. Gri ego v. State , 337 S.W.3d 902, 903 (Tex. Crim. App. 2011) (citing Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010) ).4

Furthermore, the complainant ’ s identification of appellant as the robber was
corrobora ted by Shavondia Smith, who testified that , on the day of the robbery, appellant had custody of her Explorer , which is the vehicle in which the robber
loaded the stolen i t e ms and attempted to flee after his commission of the offense

. (RR III 30

- 31, 35

- 3 8 , 87

- 9 2 , 118

- 119 , 127

- 129 ). Such corroboration further

stren g thens the sufficie ncy of the evidence. Nevertheless, appellant argue s the complainant was not credible because of
certain inconsistencies in her testimony. This claim fails to alter the outcome of the sufficiency review because inconsistencies in testimony do not render the
evidence insufficient. Herrero v. State , 124 S.W.3d 827, 833 (Tex. App.

-- Houston [14th Dist.] 2003, no pet.) . Regarding inconsistent testimony, the jury was entitled to determine the credibility of th e witnesses and the weight to be given to their testimony. Id . As the sole factfinder, the jury was authorized to believe or disbelieve any portion of any witness’s testimony. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) . It is the jury’s duty to resolve any conflicts in the testimony. Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) ; Bradley , 359 S.W.3d at 917

. Any inconsistencies in the testimony should be resolved in favor of the jury’s verdict in a sufficiency review. Herrero , 124 S.W.3d at 833. Therefore, the evidence is sufficient to support appellant’s convictio n despite any inconsistencies in the complainant ’ s testimony

. Id

.5

Appellant also suggests the evidence is insufficient because his fingerprints were not found on the gun he used during the robbe ry or on the Explorer he attempted to op erate after the robbery . (RR III 18 3

- 186). The lack of fingerprints on the gun is not compelling because the investigating officer t e stified that the

gun ’ s variant texture was not conducive to holding a fingerprint. (RR III 185

- 187).
Re g a rding the Explorer , the officer testified that it is “ very rare ” to discover fingerprints at a crime scene. (RR III 183). Therefore, the absence of fingerprints does not raise a reasonable doubt about appellant ’ s guilt. Callahan v. State , 502
S.W.2d 3, 6 (Tex. Crim. App. 1973) ( evidence sufficient to support burglary conviction despite lack of fingerprint e vidence) ; Bradley , 359 S.W.3d at 917 (jury may find guilt wit hout physical evidence linking the accused to the crime). Accordingly, d espite ap pellant ’ s claims, the complainant ’ s testimony, standing alone, remains sufficient to support appellant ’ s conviction. Point of error
one is meritless and should be overruled.6 CONCLUSION It is respectfully submitted that all things are regular and the conviction
should be affirmed.
DEVON ANDERSON District Attorney Harris County, Texas /s/ Dan McCrory DAN McCRORY Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 274

- 5826 TBC No. 13489950 mccrory_daniel@dao.hctx.net7 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing instrument has been sent to the following email address via TexFile : Hattie Sewell Shannon Attorney at Law Hattieshannon52@yahoo.com /s/ Dan McCrory DAN McCRORY Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 274

- 5826 TBC No. 13489950

CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer

- generated document has a word count of 99 5 words, based upon the representation provided by the word processing program that was used to create the document.

/s/ Dan McCrory DAN McCRORY Assistant Di strict Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 274

- 5826 TBC No. 13489950 Date: 11/3/2015