NO. 12-14-00005-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOSEPH FINLEY, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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APPEAL FROM THE 217TH 

JUDICIAL DISTRICT COURT

ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Joseph Finley appeals his conviction for aggravated robbery, for which he was assessed a 

sentence of imprisonment for fifteen years. In two issues, Appellant argues that the evidence is 

legally insufficient to support his conviction and that fundamental error exists because his guilt 

was not adjudicated in his presence. We modify the trial court’s judgment and affirm the 

judgment as modified.

BACKGROUND

Appellant was charged by indictment with aggravated robbery and pleaded “not guilty.” 

The matter proceeded to a bench trial. 

The evidence at trial showed that as Shirley Williamson and her daughter Amy Lair were 

leaving the Lufkin Mall, a man grabbed Williamson’s purse, pulled her to the ground, and 

dragged her across the parking lot before gaining control of the purse and running away. 

Williamson suffered abrasions to her knee and elbow and a fractured shoulder as a result. 

Williamson did not get a good look at the man, but Lair later identified Appellant from a photo 

lineup. Williamson was sixty-eight years of age at the time of the offense.

Appellant was charged with aggravated robbery and abuse of Williamson’s credit cards. 

He pleaded “guilty” to the credit card abuse but “not guilty” to the aggravated robbery. 
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Ultimately, the trial court found Appellant “guilty” of aggravated robbery and assessed his 

punishment at imprisonment for fifteen years. This appeal followed.

EVIDENTIARY SUFFICIENCY

In his first issue, Appellant argues that the evidence is legally insufficient to support his 

conviction. 

Standard of Review and Governing Law

The Jackson v. Virginia1legal sufficiency standard is the only standard that a reviewing 

court should apply in determining whether the evidence is sufficient to support each element of a 

criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v. 

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional 

minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a 

criminal conviction. See Jackson, 443 U.S. at 315-16, 99 S. Ct. at 2786-87; see also Escobedo 

v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a 

legal sufficiency challenge is whether any rational trier of fact could have found the essential 

elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 

2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is 

examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 

2789; Johnson, 871 S.W.2d at 186. This requires the reviewing court to defer to the jury’s 

credibility and weight determinations, because the jury is the sole judge of the witnesses’ 

credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899; see Jackson, 

443 U.S. at 319, 99 S. Ct. at 2789. A “court faced with a record of historical facts that supports 

conflicting inferences must presume—even if it does not affirmatively appear in the record—that 

the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that 

resolution.” Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. A successful legal sufficiency 

challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 

457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

To prove Appellant guilty of aggravated robbery in this case, the State was required to 

prove that (1) while in the course of committing theft of property and with intent to obtain or 

maintain control of said property, (2) he intentionally, knowingly, or recklessly caused bodily 

 

1 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979). 
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injury to Shirley Williamson by pulling her to the ground as he stole her purse, and that (3) 

Williamson was sixty-five years of age or older at the time. See TEX. PENAL CODE ANN. 

§ 29.03(a)(3)(A) (West 2011).

Analysis

Appellant argues that there is a substantial likelihood that Lair misidentified him as the 

robber, such that the admission of her identification testimony violated his right to due process of 

law. Consequently, he argues that we should not consider Lair’s identification testimony in 

determining the sufficiency of the evidence. Appellant contends that the remainder of the 

evidence in the case does not establish his guilt beyond a reasonable doubt.

In arguing that we should not consider Lair’s identification testimony, Appellant asserts 

that “[e]vidence amounting to a violation of due process should not satisfy the due process 

guarantee that legally sufficient evidence support [a] conviction.” Because Lair’s identification 

testimony did not violate Appellant’s due process rights, we need not address the merits of this 

assertion.

Due process rights may be violated when police employ pretrial identification procedures 

that are unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. 

Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199 (1967). The identification 

testimony will nonetheless be admissible if the indicia of reliability outweigh the apparent 

corrupting effect of the unnecessarily suggestive pretrial occurrence. Manson v. Brathwaite, 

432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977). This pretrial reliability 

screening for identification testimony has not been extended to cases in which the suggestive 

circumstances were not arranged by law enforcement officers. Perry v. New Hampshire, 132 S. 

Ct. 716, 720, 181 L. Ed. 2d 694 (2012).

Appellant does not complain that the police employed suggestive identification 

procedures. He bases his complaint that Lair’s identification testimony violated his due process 

rights on the fact that she saw a newspaper article reporting his arrest prior to her identification 

of him in the police lineup. While such circumstances are certainly suggestive of his guilt, there 

is no evidence that this was a procedure arranged by the police to influence Lair. Absent such 

police involvement in arranging the suggestive circumstances, Appellant’s due process rights are 

not implicated by the identification testimony. See id. at 730; see also Rogers v. State, 774 

S.W.2d 247, 259-60 (Tex. Crim. App. 1989) (witness’s in-court identification not rendered 
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constitutionally inadmissible by prior exposure to newspaper photograph depicting appellant’s 

arrest).

Appellant does not dispute any element of the offense other than identification. Having 

determined that no due process issue exists regarding Lair’s identification testimony, we next 

assess whether, based on all of the evidence, a rational jury could have found beyond a 

reasonable doubt that Appellant is the person who robbed Williamson of her purse.

Lair testified that on the day of the robbery, she saw a “nice young man” standing outside 

the mall. She looked at him for a second or two and said hello as she waited for her mother to 

exit the building. He smirked back as if to say hello. The young man was black, and he was 

wearing blue jeans, a black jacket, and a purple hat with white trim. As Lair walked toward the 

car with her mother, she thought she heard someone behind her. She heard her mother yell “help 

me, help me” and saw her fall to the ground. Lair saw a man with her mother’s purse. He ran 

away, and Lair gave chase before losing him and returning to her mother’s aid. Lair did not see 

the young man’s face as he was robbing Williamson. But she knew that it was the same person 

she saw before because he was wearing the exact same clothing. Lair stated that she had no 

doubt it was the same person.

Williamson testified that she immediately went home and cancelled her credit cards. She 

learned that some of her credit cards were used shortly after the robbery, and she passed that 

information on to the police. Through their investigation, the police were able to obtain 

surveillance video from two of the locations where the credit cards were used. They also 

obtained the date of birth that was given at the time of purchase. The police searched their 

records using the date of birth along with the criteria of “black male” and found three matches: 

Joe, Joey, and Joseph Finley. 

Williamson also testified that later that day, an acquaintance called and said that her 

employee had found one of Williamson’s checks on his way to work. Williamson had 

previously filled out the check to be used as her church contribution, but had not filled in the 

payee line. When the check was recovered, the payee line contained the name “Joseph Finley.” 

About two weeks to a month later, Lair saw articles in the Lufkin Daily News reporting 

that two suspects were arrested for a similar robbery in December 2012. She learned that 

Appellant was one of these suspects and was also charged in her mother’s case. At least one 

article included Appellant’s photograph. When Lair saw Appellant’s photograph, she noticed 
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that he had more facial hair than her mother’s robber had. Nonetheless, she was “pretty positive” 

that he was the one she saw that day. 

In or around May 2013, Lair was shown an array of photographs at the Lufkin police 

station. The detective assigned to the case gave the photographs to another detective and asked 

him to show them to Lair. The second detective did not know anything about the case and did

not know whether the suspect’s photograph was included in the array. He told Lair that she may 

or may not find the robber among the photographs and that she did not have to make a decision. 

He stepped out of the room, and Lair selected a photograph of Appellant. She stated that she was 

about ninety percent sure Appellant was the robber. Lair testified that seeing Appellant’s 

photograph in the newspaper had no influence on her selection of Appellant from the array.

Appellant took the stand and testified on his own behalf. He told the trial court that he, 

his sister, his girlfriend, and Trent Land were living together in an apartment in Beaumont. In 

November 2012, they were short on rent and decided to travel to Lufkin to get money from 

Land’s brother and visit friends. They went to the mall to meet the brother, but he was not there. 

Land told Appellant that he was going to “hit a lick.” Appellant and the women left the mall and 

picked Land up later at another location near the mall. Appellant claimed that the phrase “hit a 

lick” is a vague way of saying “get some money when you need it.” He admitted that the second 

surveillance video depicted him using credit cards that he was not authorized to use. He stated 

that he was buying cigarettes to trade for marijuana and cocaine. Appellant claimed that Land 

had written his name on Williamson’s check and told him to cash it. Appellant felt funny about 

it, so he threw the check out the window. 

Based on our review of the record, we conclude that a rational finder of fact could have 

found that Appellant was the person who robbed Williamson. The eyewitness identification 

testimony, along with the remaining evidence of Appellant’s guilt, justifies finding beyond a 

reasonable doubt that Appellant robbed Williamson. We therefore hold that the evidence is 

sufficient to support the trial court’s finding of guilt. Accordingly, Appellant’s first issue is 

overruled.
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PRONOUNCEMENT OF GUILT

In his second issue, Appellant argues that no pronouncement of guilt was made in his 

presence, and that this constitutes fundamental and structural error. Consequently, he argues that 

his conviction should be reversed and his case remanded for a new trial.

The record shows that Appellant’s bench trial took place October 29, 2013. Neither the 

record of the bench trial nor the trial court’s docket sheet reflects a finding of guilt on that date. 

The trial court’s docket sheet shows that on December 16, 2013, a sentencing hearing was 

conducted in Appellant’s presence, and he was sentenced to imprisonment for fifteen years. No 

record of that hearing was received by this court on appeal. We directed the trial court to 

determine whether this portion of the record was lost or destroyed and to make findings 

regarding the criteria for entitlement to a new trial under Texas Rule of Appellate Procedure 

34.6(f). From the record and from the trial court’s findings and conclusions, we determined that 

(1) Appellant timely requested a reporter’s record; (2) the court reporter’s notes and records of 

the sentencing hearing were lost or destroyed through no fault of Appellant; (3) the lost or 

destroyed portion was necessary to the appeal’s resolution; and (4) the lost or destroyed portion 

could not be replaced by agreement of the parties, and no copy existed. This court adopted the 

trial court’s findings and ordered a new sentencing hearing. 

A new sentencing hearing was conducted on October 1, 2014. The trial court orally 

pronounced Appellant’s guilt at the hearing. Appellant objected to the finding of guilt, arguing 

that the trial court was ordered to conduct a new hearing on sentencing only. 

On appeal, Appellant contends that the trial court did not make a valid finding of guilt in 

his presence. He argues that the determination and pronouncement of guilt constitute a critical 

phase in the proceedings, and consequently he had a due process right to be present during that 

phase.

Appellant directs us to no authority for his proposition. To the contrary, the court of 

criminal appeals has held that the absence of an express pronouncement of guilt by the trial judge 

does not render a written judgment void. Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim. App. 

1978).

Furthermore, recitations in trial court records, such as a formal judgment, are binding in 

the absence of direct proof of their falsity. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. 

App. 1984). While there is no transcript of the original sentencing hearing, the trial court’s 
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judgment recites that the trial court found Appellant guilty of the offense. The trial court’s 

findings of fact also reflect that the trial court found Appellant guilty. Moreover, when the trial 

judge held the original sentencing hearing and sentenced Appellant to imprisonment, he 

necessarily implied that he had found Appellant guilty. See Villela, 564 S.W.2d at 751.

Appellant has not shown any direct proof that he was not pronounced guilty in his 

presence. Nor has he persuaded us that the absence of such a pronouncement constitutes 

reversible error. We conclude that Appellant has shown no error because of the alleged failure 

of the trial court to pronounce his guilt in his presence. Accordingly, we overrule Appellant’s 

second issue.

ERROR IN JUDGMENT

Although neither party has raised the issue, our review of the record reveals an error in 

the trial court’s judgment. At trial, Appellant pleaded “not guilty” to the charged offense. The 

judgment, however, reflects that Appellant pleaded “guilty.” It also reflects “fifteen (15) years 

confinement in the institutional division, TDCJ” as “terms of plea bargain.” Therefore, the 

judgment should be modified to reflect that Appellant pleaded “not guilty,” and to delete the 

purported plea bargain terms. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 

1991, pet. ref’d) (appellate court has authority to correct trial court’s judgment to make record 

speak the truth when it has necessary data and information).

DISPOSITION

We have overruled Appellant’s first and second issues but found error in the judgment. 

Accordingly, we modify the trial court’s judgment to reflect that Appellant pleaded “not guilty” 

and to delete the purported plea bargain terms. We affirm the judgment as modified.

BRIAN HOYLE

Justice

Opinion delivered July 22, 2015.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 22, 2015

NO. 12-14-00005-CR

JOSEPH FINLEY,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 217th District Court 

of Angelina County, Texas (Tr.Ct.No. 2013-0140)

THIS CAUSE came on to be heard on the appellate record and the briefs 

filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s 

judgment below should be modified and, as modified, affirmed.

It is therefore ORDERED, ADJUDGED and DECREED that the trial 

court’s judgment below be modified to reflect that Appellant pleaded “not guilty” and to delete 

the purported plea bargain terms; and as modified, the trial court’s judgment is affirmed; and 

that this decision be certified to the trial court below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.