TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00691-CR

Michael Lynn Stewart, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 52,174, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

A jury convicted appellant of aggravated robbery. See Tex. Pen. Code Ann. ' 29.03 

(West 1994). The district court sentenced appellant to thirty-five years in prison. In two issues, appellant 

challenges the factual sufficiency of the evidence to support his conviction and the district court=s granting of 

the State=s first motion for continuance. Because both challenges are without merit, we affirm the district 

court=s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

During the early morning hours of October 14, 2000, appellant, armed with an automatic 

pistol, entered a 7-Eleven convenience store. Upon entering the store, appellant told two customers, 

Barbara Herman and her friend, Derrell Gills, to leave the store. Appellant then proceeded to the cashier=s 

counter, pulled out his gun, and ordered the store clerk, Forrest Price, to give appellant all the money in the 
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cash register. Appellant then exited the store with the money. Once outside the store, appellant again 

encountered Herman, who had not yet left the premises. Herman testified at trial that as appellant was 

leaving the store, he turned toward her and said, AIt wasn=t nothing personal. It had nothing to do with you 

all.@ Herman and Price testified at trial to the events they witnessed and positively identified appellant as the 

man who robbed the 7-Eleven.

Another witness, Diane Seale, testified that prior to robbing the store, appellant approached 

her while she was sitting in her vehicle awaiting the arrival of a friend. Seale told the jury that she first 

noticed appellant in her rearview mirror; she then saw him proceed to the side of her vehicle where he 

attempted to open the driver=s door. When appellant discovered Seale=s doors were locked, he reached in 

through the open window, placed the gun against her head, and ordered her out of the vehicle. Seale 

started the vehicle, Athrew it in drive and stepped on the gas.@ According to Seale, appellant hung on to the 

side of her vehicle for approximately ten to fifteen feet before letting go. Seale stated that after she was free 

of appellant, she looked in her rearview mirror and saw appellant enter the 7-Eleven. Seale testified at trial 

that she had no doubt that appellant was the man who attempted to rob her.

ANALYSIS

In his second point of error appellant contends that the numerous inconsistencies in the 

witnesses= testimony render the evidence factually insufficient to support his conviction for aggravated

robbery. Appellant does not challenge the legal sufficiency of the evidence to sustain his conviction. A 

review of the factual sufficiency of the evidence begins with the presumption that the evidence is legally 

sufficient to support the judgment. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In 
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such a review, we consider the evidence without employing the prism of Ain the light most favorable to the 

verdict.@ Id. at 129. Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly 

unjust or the adverse finding is against the great weight and preponderance of the available evidence. 

Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Thus, in conducting a factual sufficiency 

review of the elements of a criminal conviction, we ask whether a neutral review, both for or against the 

finding, demonstrates that the proof of guilt is so obviously weak as to undermine the confidence in the jury=s 

determination or that proof of guilt, although adequate taken alone, is greatly outweighed by contrary proof. 

Id. Further, in conducting our analysis, we recognize that the jury is the sole judge of the weight and 

credibility of the testimony and we should not substitute our judgment for that of the jury=s. See Santellan 

v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). To be sure, in a factual sufficiency analysis we 

defer to the jury=s findings. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Under this 

standard of review, a decision is not manifestly unjust merely because the jury resolved conflicting evidence 

in the State=s favor. Id. at 410.

Appellant contends that, because there is evidence that at least two witnesses

underestimated his height, witnesses misidentified him,1 the store clerk failed to identify him as the person 

appearing on the video surveillance, and the investigating officer failed to obtain fingerprints from the crime 

 

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 Price and Herman testified that appellant wore a blue flannel shirt; Seale recalled that the flannel 

shirt was red and brown. All three, however, testified unequivocally that appellant was the man they saw at 

the 7-Eleven on October 14. Because we conclude that any inconsistencies between Price=s, Herman=s, 

and Seale=s testimony fail to establish that the jury=s verdict is manifestly unjust, other than to note that we 

have considered appellant=s contentions, we do not address further his arguments relating to the 

inconsistencies in the witnesses= descriptions of appellant.
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scene,2A[t]here is a reasonable doubt Appellant was the man who committed the Aggravated Robbery, as 

alleged, and the cause should be reversed and remanded for a new trial.@ Initially, we note that appellant=s 

contention misconstrues the appropriate standard of review. Assuming, however, that appellant intended to 

assert that the jury=s verdict is against the great weight and preponderance of the evidence, we cannot 

agree. The record reflects that after the robbery, Price and Herman identified appellant in a photo lineup 

containing five other individuals. Both Price and Herman testified at trial that there was no doubt in their 

minds that appellant was the same person who committed the robbery. Likewise, Seale testified that she 

was positive that appellant was the same man who placed a gun against her head, ordered her out of her 

vehicle, and then entered the 7-Eleven.

 

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 Appellant cites no authority for the proposition that an officer=s failure to obtain fingerprints at a 

crime scene renders a judgment factually insufficient. Because our factual sufficiency review includes a 

review of all of the evidence, our consideration of this contention is subsumed in our analysis of whether the 

jury=s verdict is manifestly unjust.

Although the record reveals that Price and Herman incorrectly estimated his height, it also 

shows that they both testified unequivocally that appellant was the man who robbed the 7-Eleven. Similarly, 

Seale=s statement to police shortly after the attempted car jacking that she did not get a good look at her 

assailant is not necessarily inconsistent with her trial testimony that she was sure appellant was the same man 

who tried to rob her. Appellant called Maria Lyons to testify as an alibi witness. She recalled that appellant 

was at her apartment on the evening in question but testified that appellant might have left at some point that 
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evening to go to the store. Lyons also stated that she knew appellant had borrowed a black and red flannel 

shirt from another of the apartment=s residents. The jury had the opportunity to observe the witnesses=

demeanor and credibility, and we cannot say that the evidence of appellant=s guilt is so obviously weak as to 

undermine the confidence in the jury=s determination of guilt. Thus, after reviewing the evidence in its 

entirety, we hold that the evidence is factually sufficient to sustain appellant=s conviction for aggravated 

robbery. Accordingly, we overrule his second issue.

In his first issue, appellant contends that the district court erred, as a matter of law, in 

granting the State=s first motion for continuance. See Tex. Code Crim. Proc. Ann. ' 29.04 (West 1989). 

We review a district court=s ruling on a motion for continuance for an abuse of discretion. See Vasquez v. 

State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). Appellant asserts that the State=s motion Afails to 

show that a subpoena had been issued, that the testimony of the missing witness was material for the State 

or what diligence had been used by the State to procure the attendance of the witness.@ At the hearing on 

the State=s motion, however, the State asserted that it used diligence in attempting to procure Herman=s 

attendance but was unable to locate her, and that as an eyewitness to the robbery, her testimony was 

material. Appellant never challenged the State=s contentions; instead, he objected to the continuance based 

on his prolonged incarceration.3 Such a contention, however, is insufficient to establish that the trial court 

 

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 Appellant contends in his brief: AWhile not couched in terms of depriving Appellant of a speedy 

trial, the objection by Appellant to the granting of the State=s Motion for Continuance . . . put the trial court 
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abused its discretion. Accordingly, we overrule appellant=s first issue.

 

on notice that Appellant was being deprived of his right to have a speedy trial.@ Because appellant did not 

raise the contention in the court below that the State deprived him of his right to speedy trial, he has waived 

the issue on appeal. Tex. R. App. P. 33.1; see also Barker v. Wingo, 407 U.S. 514, 532 (1972).
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CONCLUSION

Having overruled appellant=s issues, we affirm the district court=s judgment.

 

Jan P. Patterson, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: September 12, 2002

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