Winston Othell Chapman v. State

IN THE TENTH COURT OF APPEALS No. 10-06-00093-CR Winston Othell Chapman, Appellant v. The State of Texas, Appellee From the 54th District Court McLennan County, Texas Trial Court No. 2004-1164-C MEMORANDUM Opinion A McLennan County Grand Jury charged Winston Othell Chapman by indictment with aggravated robbery. A jury returned a guilty verdict, and Chapman was sentenced to ten years in prison. He brings three issues on appeal. We will affirm. Background The Cruz’s Jewelry Store, a family business operated by Vicenta Cruz, was robbed by three men on August 6, 2004 at approximately 4:00 p.m. Vicenta and her daughter, Jessica, were working in the store at the time of the robbery. Jessica testified that she saw Michael Walker, a friend from school, and two other men walk from an alley towards the store. It appeared that they were going to enter the store but “veered off” after Walker saw Jessica. Walker entered the store, his face covered in a black rag, approximately five minutes later with the two other men. He held a gun to Jessica’s head and told her to get down while another man, later identified as Chapman, held a gun to Vicenta’s head and demanded money and jewelry. The third man kept watch at the door. Following the robbery, Jessica called 9-1-1 and assisted the police in locating Walker. Jessica described the man who held her mother at gunpoint as having “a large afro and wearing a tan shirt.” Based on this description and information provided by Walker following his arrest, Detective John Rozyskie of the Waco Police Department arranged a photo array, which included Chapman. Jessica was not able to pick him out of the array, but Vicenta made a positive identification. Factual Sufficiency Chapman’s first issue alleges that the evidence was factually insufficient to support the conviction. In a factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The appellate court “does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment....” Id. (quoting William Powers and Jack Ratliff, Another Look at ANo Evidence@ and AInsufficient Evidence,@ 69 Texas L. Rev. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called “thirteenth juror” to review the factfinder's weighing of the evidence and disagree with the factfinder's determination. Watson, 204 S.W.3d at 416-17 (citing Tibbs v. Florida, 457 U.S. 31, 42-3, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982), and Meraz v. State, 785 S.W.2d 146, 156 (Tex. Crim. App.1990)). Chapman contends the evidence is factually insufficient because Vicenta’s description of the robber was not consistent with Chapman’s appearance, and because he presented evidence that he was not near the store at the time of the robbery. Chapman presented evidence that he did not have long hair during the time period at issue. He introduced a May 2004 graduation photo and the photo taken on the day of his arrest in September 2004, both showing him with short hair. However, his aunt, Johnetta Chapman, testified that after graduation his hair grew out about an inch. Rozyskie testified that Vicenta picked Chapman out of the photo array without hesitation. She stated that she had no doubt, although Chapman’s hair was short in the picture and she remembered his hair being longer, that he was the man who held her at gunpoint. She testified that she stood opposite Chapman during the robbery and she will never forget his face. Several defense witnesses testified as to Chapman’s whereabouts during the time of the robbery. Quinton Davis testified that he and Chapman spent the night at Albert Toliver, Jr.’s home the night before the robbery. Davis left Toliver’s house around noon the next day and saw Chapman in a four-door car at 4:00 p.m. Toliver stated that only Chapman spent the night at his house the night before the robbery and that he took Chapman to Johnetta’s house at 3:15 the following day to meet his girlfriend. He met up with Chapman again that night at a nightclub. Albert Toliver, Sr. testified that, although he doesn’t remember specifically what day the robbery occurred, he believed that his son and Chapman were at his house until 4:00 or 4:30 on the day of the robbery. Eugenia Mitchell-Chapman, Chapman’s wife, testified that he was with her at the time of the robbery. She spent the morning of the robbery searching for a car to purchase and applying for a car loan. She had been to Members Choice Credit Union twice when she called Chapman before 3:00 from the credit union. She left before seeing the loan officer, Mike Glockzin, to go pick up Chapman. They returned to the credit union and waited 45 minutes to an hour to meet with Glockzin. After leaving the credit union, they drove to her mother’s house, to a restaurant to get something to eat, and then to her house. Eugenia testified that Davis was mistaken that he saw Chapman again that afternoon because they did not leave the bank until 5:00 and because the car they were driving was a two-door, not a four-door as Davis testified. She also stated that Chapman did not go to a club with Toliver the night of the robbery because she and Chapman stayed at her house for “a while” then went to Johnetta’s house. She testified that they stayed there until 2:00 or 3:00 the following morning. Glockzin testified that although he has a record of multiple meetings with Eugenia on the day of the robbery and he remembers a male accompanying her for one of these visits, he cannot remember at what time the male was with her or what he looked like. However, based solely on memory, he believed the man was Hispanic. The jury is the “sole judge of the weight and credibility of witness testimony” and “may choose to believe all, some, or none of it.” Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The jury is also in the “best position” to observe the demeanor, attitude, “expressions, gestures, and tone” of the witnesses. Lacy v. State, 899 S.W.2d 284, 287 (Tex. App.—Tyler 1995, no writ); Reed v. State, 991 S.W.2d 354, 360 (Tex. App.—Corpus Christi 1999, pet. ref'd). Having heard the testimony of the witnesses and observed their demeanors, the jury was free to decide who and what to believe. See Santellan, 939 S.W.2d at 164. The jury in this case apparently believed Vicenta and Jessica. Considering all the evidence in a neutral light, we find that the jury was justified in finding Chapman guilty. Watson, 204 S.W.3d at 415. We do not find the evidence so weak nor the conflicting evidence so strong as to render the verdict manifestly unjust. Because the evidence is factually sufficient to support Chapman’s conviction for aggravated robbery, we overrule his first issue. Co-Defendant Statement In his second issue, Chapman argues that the trial court abused its discretion in excluding Toliver’s testimony of statements made by Walker, Chapman’s co-defendant. Toliver testified as follows: DEFENSE COUNSEL: Did you ever learn or did you ever have a conversation with Michael Walker about the robbery? TOLIVER: Yes, sir. DEFENSE COUNSEL: Did you find out whether or not he did it? TOLIVER: Yes, sir. DEFENSE COUNSEL: Did he ever tell you who he did it with? TOLIVER: Yes, sir. The trial court sustained the State’s hearsay objection. Defense counsel then indicated his intention to make a bill of exception. To preserve an issue for appeal premised on the trial court's exclusion of evidence, a party must make an offer of proof, unless the substance of the evidence was apparent from the context within which questions were asked. Tex. R. Evid. 103(a)(2). Further, the offering party shall, as soon as practicable, but before the court's charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof. Tex. R. Evid. 103(b). Chapman waited until after the jury had decided guilt and punishment before making his bill of exception. On appeal, Chapman now argues that the statement was admissible as a statement against interest. See Tex. R. Evid. 803(24). However, he never argued to the trial court that this exception to the hearsay rule applied. The party must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule in question and its precise and proper application to the evidence in question. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). Therefore, it was Chapman’s responsibility to specify which exception to the hearsay rule he was relying upon. See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). Finding that Chapman failed to file a timely bill of exception and has failed to specify which rule of evidence which he relied on, we hold that Chapman failed to preserve this issue for review. We overrule his second issue. Identification Evidence At trial, Glockzin testified that he believed, “going off pure memory,” that the person who accompanied Eugenia to his office was an Hispanic male. In his third issue, Chapman complains that he was denied the opportunity to present evidence that Glockzin told his investigator, Don Youngblood, that the man with Eugenia was black. The trial court sustained the State’s objection to this testimony on two grounds: (1) the testimony was not proper impeachment because Glockzin had not been confronted with the statement he made to Youngblood; and (2) Youngblood violated Rule of Evidence 614 by remaining in the courtroom throughout the trial. Chapman concedes that the testimony was not admissible as impeachment evidence, but argues that it should have been admitted because it amounted to evidence of identification. A statement is not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person. Tex. R. Evid. 801(e)(1)(C). Glockzin, testified at trial as to what little he remembered about the identity of the man with Eugenia. Having failed to establish the proper predicate to impeach Glockzin, Chapman attempts to characterize this testimony as evidence of identification. We are not persuaded. We hold that the trial court did not err in excluding Youngblood’s testimony because he was not the declarant. See id. Accordingly, we overrule Chapman’s third issue. Conclusion Having overruled Chapman’s three issues, we affirm the judgment of the trial court. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed April 25, 2007 Do not publish [CR25]