Affirmed and Ma jority and Concurring Memorandum Opinion s filed April 16 , 20 20
.

In The



## Fourteenth Court of Appeals

NO. 14
- 18
- 00726
- CR

ROBERT ANTONIO HOUSTON , Appellant

V.
THE STATE OF TEXAS , Appellee
On Appeal from the 338th District Court

Harris Count y, Texas Trial Cour t Caus e No. 1522384

MAJORITY MEMORANDUM OPINION Appellant Robert An t onio Houston was convicted of robbery by a jury , and pleaded true to two prior convictions for possession of a controlled substance

. The trial court assessed his punis hment to 37 years ’ confinement

. I n his sole issue on2

ap peal , appellant contends the evidence is legally and fac tually insuffici e nt to supp ort his conviction

. We affirm.
I. B ackground
T he comp lainant, and her h usband, own and manage a n Exxon Food Mart and ga s s tation lo cated in Harris County , Texas. The store provides check cashing

serv ices

. O n August 12, 201 6 , the complainant stopped at Paner a Bread to pick up lunch , then withdr e w $30,000 from her bank for check cashing services at the store, and clos e to no on, arr ived at th e Exxon Food Mart

. The comp lainant parked h er si lver Mercede s SL 500 near on e of the gas p umps and stayed in the car because she w as on a tele phone call with her husband

. In the meantime, occupants of a maroon sport utility vehicle ( “ SUV ” ) had bee n waiting in the conv enience sto re parking lot for five or ten minutes. After the

com plainant parked he r car at the gas pump, the SUV driver circled around the gas pumps and the complainant ’ s vehicle twic e
. Whe n the complainant exited her c ar with the money bag , the SUV stop ped i n front of her car , wi thin a f e w feet of her. Appellant ex ited the SUV from the passenger side wearing a bla ck mask that covered his forehead and ey e s
. Appe lla nt grabbed the money bag containing $30,000 , punched th e complainant i n the face at least three t i mes , ca using he r to fall to the ground , and as h e was about to leave, appellant turned back to take the complainant ’ s black purse containing $250 a nd her P anera Bread bag of food

. During the struggle, appellant ’ s mask came off an d the complainan t saw his face. A ppellant got back in the SUV on the passenger side and the SUV drove away. The foregoing events were cap ture d on the store ’ s vid eo s urveil lance system

. When the SUV left the c onvenienc e stor e parking lot , the SUV pulled in front of another driver. The driver , Randall Bell, sensed something was wrong3

because he noticed the compl ainant getting up from the ground. Bell followed the SUV until it stopped , a bo u t two miles awa y , in front of a trai ler park , wher e its two occupants exited the SUV and entered a second car. Bell provided this infor mation to police officer s, who located the SUV.
Harr is County Sheriff ’ s Deputy , B ra d ley Bru ns, proc essed the SUV and found a latent fingerprint on the interior of the dr iver ’ s door window. On the passenger si de of the SUV, Deputy Br uns also noted a P ane ra Bread bag , deposit receipts, lady ’ s gl a sses, and l ip balm

. Deputy Diane Median, a la tent print examiner with the Harris Count y Sheriff ’ s Department, testifi ed th e prin t taken from the SUV matched appellan t’s finger print

. Harris County S heriff ’ s De pu t y, Robert Rinco n , a robbery inves tiga tor, spoke with the deputy initially at the crime scene, interviewed the co mpla inant, viewed the store surveill ance video, and followe d up wit h th e deputy that proce ssed t he SUV. The pr in t p rocessed f r om the SUV gene ra ted appellant as a suspect. Deputy Rincon subsequently created a six

- man photospread and showed it to the complainant

. She iden tified appellant’s photograph as her robbe r, but said she was n ot 100 perc en t c ertain. The complainant testi fied she was more than 90 percent certain because she had seen him wi thout the mask. A lthough the complainant was shown sever al photo arrays, the complainant did not identify anyo ne else a s the person w ho robbed her

— s he only identified appella nt

. At trial, the complainant identified appellant in court as the man who punched and r obbed her. The complain ant explained that appellant was wear ing a mask over his fa c e when he i niti ally exited the SUV, but the mask did not cover h is entire face. According to the complainant, “You could see the eyes , a little bit of cheeks and th e mouth and the chin.” The complainant saw appellant ’s uncovered4

f ace b ecau se the mask slipped off when he was punchin g her. She looked at appellant’s unc overed face an d clearly saw what he looked like

— she was very close to appellant. Despite appellant striking her, the complainant di d no t close he r eyes and her vision was good. Appell ant ’ s former girlfriend , Tiffany Bladen, testified that the maroon SU V did not belong to appellant; however, h e borrowe d it o n occasion. 1 Bladen testified
t hat on August 12, 2016 , she and appell a nt were “ around each other. ” App ellant ’ s long

- time girlfriend , DeAngelis Ward, testified th at in the early morning of August 12, 2016 , she was feeling si ck at work and appellant picked her up . She estimat ed that appellant pick e d her up around 2:30

- 3:30 a.m. She testified that he was with her at t heir apart ment at the time of the robbery.
Las tly, a ppellant testified ; h e admitt ed to having an extensive criminal histo ry
. A ppellant testified he borro wed the SU V in question and was drivin g it on the morning of the robbery, but claimed he returned the vehic le to its owner , around 4:00

- 5:00 a.m., be fore the robbery occurred. He claime d to have spent the entir e day with his longtime gi r lfrie nd, Ward, who confirmed his story. Appellant was charged by indic tment with the offen s e of robbery, enhanced by two prior felon y convictions. In Au gust 2018, Ap pellant was convicted by a jury of ro bbery. On August 14, 201 8 , a fter find ing that appellant was guilty of the charge d offense and the enhancement paragraphs true , the trial court ass esse d punishment to 37 years ’ confinement

. This a p peal ti mely followed.

1 At the time of the i ncident, Bladen was not appella n t ’s girlfriend. After he was charged with this robbery, Bladen rekindle d a relationship with appella nt w hile he was i n jail. At the time of trial, Bladen testified she planne d to marr y hi m
.5 II. Analysis
In his sole issue, appe l la nt ch allenges the legal and factual suf ficiency of the evidence to establish his identity as the person who robbed the complainant. Because the Court of C riminal Appeals abolished factual

- sufficie n cy review “in determi ning whether the evidence is suffi c ie nt to support each element of a crimina l offense that the State is required to prove beyond a reasonable doubt,” we

re view the evidence only for legal suff iciency. See Brooks v. State , 323 S.W.3d 8 9 3, 895 (Tex. Crim. Ap p. 2010) (plurality op.). Anticip a ti ng th at we wi ll pe rform an analysis for just the legal sufficiency of the evidence, appellant contends that the failur e to perform a factual sufficiency rev iew violates notions of due process, due c ourse of law, and equ al protection.
T o the extent appellan t complain s that the failure to perform a factual sufficiency review v i olates notions of du e process, due course of law, and equal protection , w e are ta sked with following the Court of Criminal Appe als opin ion in Br ooks v. State , which abol ished factual

- su ffic iency review. See 32 3 S.W.3d at 895. Mor eover, we reject appellant ’ s contenti on that the failure of our court to perform a factual sufficiency review violate s due process, due course of law, a nd equ al prot ecti on. See Mayer v. State , 494 S.W.3d 844, 8 48 (Tex. App.

— Houston [14th Dist. ] 2016, pet. re f ’ d) ; Mason v. State , 416 S.W.3d 720, 728 n.10 (Tex. App.

— Houston [14th Dist.] 2013, pet. ref ’ d) ; accord Beale f ield v. S t a te , N o
. 14

- 15

- 0 0805

- CR , 2018 WL 3734102 , at * 1 (T ex. App.

— Houston [14th Dist.] Aug. 7 , 2018, no pet. ) (mem. op. , not designated for publication ) ; Sha fer v. S tate , N o . 14

- 15

- 00372

– CR , 2017 WL 716402 , at *4 (Tex. App.

— Houston [14th Dist.] Feb. 23, 2017, no pet. ) (mem. op. , not designated for publication )

. Therefor e, w e only apply one sta ndard wh en re viewing a ch allenge t o the sufficiency of the evidence,6

and that standard is the standard for legal sufficiency. See Temple v. State , 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). In determining whet her the ev id ence is legally sufficien t to sup port the

c onv iction, “w e consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juro r could have found the essent ia l elements of the crime b e yond a reasonab le do ubt.” Hoop er v. State , 214 S.W.3d 9, 13 (Tex. Crim. App

. 2007) (citing Jackson v. Virginia , 44 3 U.S. 307, 318

– 19 (1979)) ; see also Braughton v. State , 569 S.W.3d 592, 607

– 08 (Tex. Crim. App. 2018)

. We presum e that the jury resolved co n flict in g infere nc es in favor o f the verdi ct, and we defer to its determinat ion of the evidence ’ s weight and credib ility. See id. at 608 ; Temple , 390 S.W.3d at 360 ; Criff v. State , 438 S.W.3 d 134, 13 6

– 37 (Tex. App.

— Houston [14th D ist.] 2014, pet. ref ’ d).
T he scop e of our r evi ew is all of the evid ence, whether it was properly or i mproperly admitted at trial. See Clayto n v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We consider both direct and circumstantial evidence, as w el l as any reasonable infer e nces th a t may b e dra wn from th e evidence. See Balderas v. State , 517 S.W.3 d 756, 766 (Tex. Crim. App. 2016). Cir cumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial

ev idence alone can be suffi c ient to es tabli sh gu ilt. See Ho oper , 214 S.W.3d at 13

. A person commits ro bbery if, in the course of committing t heft, he intentionally, knowingly, or recklessly causes bodily injury to another or i ntentionally or knowingly thr ea tens or places another in fear of imminen t bod ily injury o r death. Tex. Pe nal Code § 29.02(a). A pers on commits theft if he unlawfully appro priates property with the intent to deprive the owner o f property.7

Id . § 31.03. T o obtain a conviction, the Stat e must prove that the defen d ant is the pers on wh o committe d the charg ed offense. Johnson v. State , 673 S.W.2d 190, 196 (Tex. Crim. App. 1984) ; Smith v. State , 56 S.W.3d 739, 744 (Tex. App.

— Houston [14th Dist.] 2001, pet. ref ’ d ). An eyewitnesses ’ identifi ca tion is direct evidence o f a defendant ’ s gu ilt

. Ex part e Saenz , 49 1 S.W.3d 819, 830 (Tex. Crim. App. 2016) ; s ee Aguilar v. S tate, 468 S.W.2 d 75, 77 (Tex. Crim. App. 1971) (upholding conviction for assault with intent to murd er whe n only one witnes s saw de fendant with gun)

. More o ver , a crime vi cti m ’ s testimony i dentifyi ng a defe ndant as t he perpetrator, standing alone, is s ufficient to support a conviction. Bradley v. Stat e , 359 S.W.3d 912, 91 7 (Tex. App.

— Houston [14th Dist .] 2012, pet . ref ’ d) ; Ha rmon v. State , 167 S.W.3d 610, 6 1 4 (Tex. App.

— Ho ust on [14th Dist .] 2005, p et. ref ’ d) ( legally sufficient evid ence to sustain aggravated robber y whe n complainant identified defendant as the person who beat and robbed her) ; Johnson v . State , 176 S.W.3d 74, 77 (Tex. App.

— Houston [1st Dist. ] 200 4, pet. ref ’ d) ( holding evid en ce lega lly sufficient to sustain aggravated robbery convic tion w he n complainant testified appellant robbed her at knife

- point, complainant identified appellant in p hotographic li neup, and complainan t identified appellant in c ourt)

. Her e, th e evi dence is s uffici ent to establish ap p ellant ’ s identi ty because the comp lain ant identified him a s the robber. T he complainant identified appellant in the photographic array as the person wh o pointed a gun at h er
. T he complainant
t w ice identified the d efendant in c ou rt as the robber. This was d irect evid ence of identity and is suf

ficient to establish appellant ’ s guilt

. See Bradley , 359 S.W.3d a t 91 7 ; Harmon , 167 S. W.3d at 614; Johnson , 176 S.W.3d at 77.8

Ap p el lant argues t hat t he complain an t ’ s te stimony fails to supp ort his conviction because t h e complain ant was not 100 p ercent certain of her pretrial identification of appellant during the photo s pread. It is undispu ted that the complainant testified she was on ly 90 per cent sure of he r pretr ia l identifi cation

. Th e jury can assess cr edibility in considering th e complainant ’ s testimony that she
was not co mp letely sure when she pos i tively identifi ed appellant in the photospread

. See Harm o n v. State , No. 14

- 1 2

- 007 13

- C R , 2 01 4 WL 1852172, at *6 (Tex. App.

— Houston [14th Dist.] May 6, 201 4, no pet.) (mem. op

. , not designated for publication )

. Appel lant also chall enges the sufficiency of the compl ainant ’ s in

- court ident ification of ap pellant , claiming the S t ate did not show t h at such identif icati on
was no t in fl uenced by the pretr ial identific ation procedure in which the

co m plainant viewed the photosp read . At trial, however, appellant did not chall enge the pretrial ident ification proce dure as suggestive, impermiss ible, o r oth e r wise improper , and h e neither arg ue s on appeal nor is there e vidence in the

reco rd indicating sugge stiveness

. Texas courts st rictly apply the contemporaneous objec tion rule in th e context of suggestive identification pro c edures. See Tex . R. App. P. 3 3.1( a) ; Perry v. State , 703 S.W.2d 668, 670 (Tex. Crim. App . 1986). A bsent a timely objection to the in

- court identification, or t estimony based on an allegedly suggest ive identificat ion procedure, no error is preserved. Id

. at 671. Failur e to complai n abou t or object to the in

- court identification constitutes procedural default and waiver of any complaint on appeal. Wallace v. St ate , 75 S.W.3d 576, 584 (Tex. App.

— Tex arkana 2002), a

ff ’ d on other grounds , 106 S.W.3d 103 (Tex

. Crim. App. 200 3). B ut even a ssum in g appe l lant ’ s complaint is preserved, his contention would be wi thout merit because the photo array was not impermissibly sug gestive , as demonstrated by the t estim ony of complain ant and9

the officer who showed her the pho t o array
. See g enera lly Bar le y v. S tate , 906 S.W.2d 27, 33

– 34 (Tex. Crim. App. 1995).
Mo reover, the complainant ’ s in

- court identification was based on her ob ser vation of appellan t during the offense , which was not influ enced by the pretrial identi fication procedu re. The complainant test ified sh e had good vision , that she looked at appellant ’ s face when the mask ed slipped off , that she saw what he looked l i ke , an d that she was very close to ap pella n t and facing hi m. See Bradley , 359 S.W.3d at 918

. “ As the so le factfin der, the jury determines how much weight and credibility to afford the witnesse s ’ testimony and we defer to those resolutions. ” Rodriguez v. S tat e , N o . 14

- 16

- 002 94

- CR , 2017 WL 304 57 77 , at *3 (Tex. App.

— Houston [14th Dist.] July 18, 2017, no pe t.) (mem. op

. , not designa ted for pu blication ) ; Crooks v. State , No. 01

- 12

- 00996

- CR, 201 4 WL 4344842, at *2

– 3 (Tex. App.

— Houston [1st Dist.] Aug. 29, 2014, pet. ref ’ d) (mem. op. , not designated for publication ) (rejecting d efendant ’ s argu ment that evidence w as insufficient because t he “only evidence linking him to the robbery

. . . was unreliable due to the impermissibly su ggestive identification procedures,” since jur y heard t estimony regarding the identification procedure s and it was jur y ’ s

r ole to resolv e witnesses ’ testimony).
T he complaina nt ’ s identific ation o f appellant was corroborated, mor eover, b y circumstantial evi dence of identity. Appellant ’ s fingerprint wa s found on the interior side of the d river ’ s door window of the SUV used durin g the robber y
. This evidenc e supports a finding that appellant was the person who commit ted the robbery. See Threadgill v. State , 146 S.W.3d 654, 663 (Tex. Crim. App. 2004) (presence of def

e nd ant ’ s fingerp rin ts on car inv ol ve d in offense was probative to sufficiency analysis ).10

Appe llant t est ified that he did not own t he SUV, but had borrowed the vehicle from its owner and d rove it on th e day of the robb ery ; however, appellant claim ed he retu r ned it to the o w ner , around 4:0 0

- 5: 00 a.m., b efore the robber y ’ s commission. Appellant asserts th e ev i dence showed that the robber exited and re

entered the SUV from the passen ger side. Appellant argues that because h is fingerprint was l ifted from in si de the driver ’s side window, it c ould not have bee n left at the time of the robber y
. Appellant further maint ains that the bystander , Bell, who followed the SUV in his own car , testified th a t when the SUV final ly pulled ove r i n front of a trailer p ark, an other vehicle pu l led up to the pa ssenger side, and a couple of people got o ut of the SUV

. From this tes timony, appellant

a rgues , “ [Bell] did not see anyone get out of the drive r’ s side, so no fi nge rp rint could ha ve been left then. ” Bell, however, d id not testify to that effect. He made no mention i n his direct testimony or on cross

- exam inat ion from which side of the SUV the two people exited. As such, Bell ’ s testimony fails to s upport appell an t ’ s contention that his “ single fingerprint could not have been made at the time of the offense

. ” Nevertheless, a rational jury could have found appellant g uilty of rob bery without any fingerprint evidence

. See Sant os v. State , 116 S.W .3d 4 47, 459 (Tex. A pp.

— Houston [14th Dist.] 2003, pet. ref ’ d) (reject ing argument that lack of finge rprints connec ting defe n dant to r obbery rendered evidence insufficient to supp ort co nvictio n)

. Final ly, appellant asserts the evidence is in sufficient to s uppor t his convict io n because a ppellant ’s former girlfriend , Ward , testified that the SUV did not bel ong to ap pella nt but he had given her a ride home from work in it on the day

o f the robbery because she was sick, and appellant stayed home with her throug hout the day. On cross

- examination, W ard testified that appellant could not ha ve been with Bladen on August 12, 20 16, because appellant was with her11

in stead

. T he jury has the ri ght to ac cept or reject any of the witnesse s ’ te st i mony , incl ud ing appellant ’ s alibi witness. Washin gt on v . State , No. 14

- 02

- 01095

- CR , 2003 WL 21710488 , at *3 (Tex. App.

— Housto n [ 14th Dist.] July 24, 2003, pet. ref ’ d ) ( mem op., no t designated for publication) ( holding jury ’ s right to di sregard defendant ’ s alibi ) ; Moore v. S ta te , 804 S.W.2d 165, 166 (Tex . App.

— Houston [14th Dist.] 1991, no pet. ) (holding j ury is entitled to accept the Sta te ’ s version of the facts an d reject appellan t ’ s version or reject any of th e witnesses ’ testimony).
T hese points merely i nvoke questions ab ou t the credibility of the evi dence, which was w ithin the purview of the jury. See Lancon v. State , 253 S.W.3d 699, 70 6 (Tex. Crim

. A pp. 2008) ; B radl ey , 359 S.W.3d at 917 ( “ The jury alone dec ides whether to believe ey ewitness testimony, and t he jury alone r esolves any conflicts or inc onsistencies in the e vidence. ”). Any inconsistencies in the testimony should be resol ved in favo r of th e jury ’ s v erdict in a legal

- sufficiency review. Moreno v. State , 755 S.W. 2d 866, 86 7 (Tex. Crim. App. 1 988) (en banc) ; Dr ap er v. State , 335 S.W.3d 412, 415 (Tex. App.

— Houston [14th Dist.] 2011, pet. ref ’ d).
Viewi ng the evidence as a whol e in the li ght mos t favorabl e to the verdict, we conclude that a rational ju ror could have found every essential element o f the offense beyo nd a reasonable doubt

. III. C onclusion The judgment of th e tria l c o urt is affirmed

.

/s/ Margar et “ Meg ” Poissant Justice

Panel consists of Justices C hristopher , Spain , and Poi ssant . (Spain, J., concurring). Do Not Publish

– Tex. R. App

. P. 47.2 (b)