John Majia v. State

Opinion issued September 28, 2006 In The Court of Appeals For The First District of Texas NO. 01-05-00695-CR JOHN MAJIA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 248th District Court Harris County, Texas Trial Court Cause No. 1030946 MEMORANDUM OPINION A jury found appellant, John Majia, guilty of the offense of burglary of a building and assessed punishment at confinement in prison for 18 years. Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon 2003). In his sole issue, appellant contends that the evidence presented against him at trial was factually insufficient to support his conviction because the only eyewitness to the crime could not positively identify him as the burglar. We affirm. Background At approximately 1:30 a.m., John Keyes heard a loud banging coming from the GM Video Store across the street from his apartment. Looking out his window, Keyes saw someone inside the store banging on the store’s window. He called 911 and alerted the operator that there was a burglary in progress. While on the phone with the 911 operator, Keyes saw the suspect shatter the store’s glass window, climb out the window, and start walking down the street. Keyes went outside and followed the suspect from a distance of no more than 75 to 100 yards, relaying his position to the 911 operator through his cell phone. At first, Keyes was unable to give the 911 operator a physical description of the burglar, including the race of the suspect. Keyes was eventually able to get close enough to tell the operator that the suspect was wearing a white t-shirt and blue jeans. At one point, the suspect turned left and disappeared from Keyes’s view for 10 to 15 seconds. Keyes rushed to catch up with him and found the suspect talking on a pay phone outside a nearby restaurant. Bellaire Police Officer Michael Bates arrived within seconds. There were no people in the area other than appellant, who was talking on the phone, and Keyes. Appellant matched the suspect’s general clothing description. As the police arrived, Keyes gestured towards appellant from about 30 yards away and then returned home. Keyes did not speak to the police about the burglary until several hours later, and the police never asked him to identify a suspect. Officer Bates arrested appellant, but could not handcuff him because appellant has only one arm. At the time Officer Bates arrested him, appellant was holding a screwdriver and a black bag from the video store. The bag from the store contained approximately $136 in cash. Officer Bates noticed that appellant’s arm was cut, that he was bleeding, and that his arm, clothes, and hair were covered in glass fragments. Houston Police Officer Eric Powell took over the investigation for Officer Bates. Powell went to the video store and found the store window broken out, glass fragments on the ground both inside and outside the store, and a few drops of blood on the glass fragments inside the store. Elizabeth Salazar, owner of GM Video, arrived later to inspect the store. She confirmed that the black bag appellant was carrying was from the store and that money had been taken from one or more places in the store. Salazar estimated that about $90 to $100 was missing from the store. She also found that shelving units had been rearranged and broken in an apparent attempt to escape through the ceiling tiles in the store. She indicated that a screwdriver or similar tool would have been necessary to move the shelves. Salazar further testified that the store’s alarm wiring was cut and that the alarm box was ripped from the wall. Factual Sufficiency In his sole point of error, appellant contends that the evidence is factually insufficient to support his conviction because the only eyewitness to the crime could not positively identify him as the burglar. We disagree. Standard of Review In a factual sufficiency review, “we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.” Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004); see also Zuniga v. State, 144 S.W.3d 477, 484–85 (Tex. Crim. App. 2004); Stewart v. State, 137 S.W.3d 184, 187 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). In conducting the factual sufficiency review, we must give appropriate deference so that we do not substitute our judgment for that of the fact-finder. Zuniga, 144 S.W.3d at 482. Our evaluation should not intrude upon the fact-finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997). Additionally, the weight to be given contradictory testimonial evidence is within the sole province of the fact-finder because it turns on an evaluation of credibility and demeanor. Id. at 408-09. The fact-finder is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. In conducting a factual sufficiency review, we must discuss the evidence that, according to appellant, most undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Both direct and circumstantial evidence tending to prove a fact in dispute are compared to the evidence tending to disprove that fact. See King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). In a prosecution based on circumstantial evidence, it is not required that every fact point directly and independently to the guilt of the accused; the cumulative force of all the incriminating circumstances may be sufficient. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Analysis In support of his factual sufficiency challenge, appellant points to the fact that the only witness, Keyes, could not positively identify him as the burglar and had no knowledge of what the burglar looked like. Appellant argues that because he has only one arm, Keyes should have been able to identify him easily. Identity can be established by direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). The mere presence of an accused at the scene of an offense is not alone sufficient to support a conviction; however, it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a participant. Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979). Similarly, while flight alone will not support a guilty verdict, evidence of flight from a crime scene is a circumstance from which an inference of guilt may be drawn. Id. Here, Keyes saw someone break out of and flee the scene of a video store across the street from his apartment. Keyes followed the suspect at a distance of not more then 75 to 100 yards. He lost sight of the suspect for 10 to 15 seconds; however, there were no other people outside while he was following the suspect. After that short period of time, Keyes saw the suspect again on a pay phone outside of a restaurant. Seconds later, the police arrived, and Keyes gestured to them that the suspect he had followed was on the pay phone. Bellaire Police arrested appellant, who was still on the pay phone. Additionally, appellant’s clothing matched the general description Keyes had given to the 911 operator. At the time of his arrest, appellant was carrying a screwdriver, which Salazar testified would have been necessary to rearrange the shelving units in the store. Appellant was also carrying a black bag containing approximately $136 in cash. According to Salazar’s testimony, the black bag came from the video store and the cash was at least as much money as the amount missing from the store. Furthermore, appellant’s arm, clothes, and hair were covered in glass fragments. His hand and arm were bleeding from what appeared to be glass cuts, and police found drops of blood on the broken glass fragments inside the video store. While the evidence connecting appellant to the burglary of GM Video was circumstantial, the cumulative force of the incriminating circumstances is factually sufficient to establish appellant’s guilt. See Barnes, 876 S.W.2d at 321. Viewing all of the evidence in a neutral light, the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. See Escamilla, 143 S.W.3d at 817. Therefore, we hold that the evidence of appellant’s identity is factually sufficient. We overrule appellant’s sole point of error. Conclusion We affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Taft, Keyes, and Hanks. Do not publish. Tex. R. App. P. 47.4.