Joseph Earl Bias v. State

Affirmed and Memorandum Opinion filed November 7, 2006 Affirmed and Memorandum Opinion filed November 7, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00831-CR ____________ JOSEPH EARL BIAS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Cause No. 38,135A M E M O R A N D U M  O P I N I O N Challenging his conviction for aggravated assault, appellant Joseph Earl Bias asserts that the trial court erred in granting the State=s challenges for cause of two venirepersons and that the evidence is factually insufficient to support his conviction. We affirm. I. Factual and Procedural Background On May 1, 2003, Officer Thomas Thompson of the Stafford Police Department was dispatched to the Main Street Shoes store in Stafford, Fort Bend County, in response to a report of an aggravated robbery. When he arrived, he met with the complainant, Jean-Pasquel Pacquette, an employee of the store. Officer Thompson noticed some bullet damage and empty shell casings in the store and also observed that the complainant, although unhurt, had what appeared to be bullet holes in his shirt. The perpetrators were no longer at the location. Officer Thompson questioned Pacquette and learned that an individual, later identified as appellant, had come into the store with two other men to have his tennis shoes dyed. Pacquette stated that appellant pulled out a gun, discharged it a few times, and then fled with his companions in a green Toyota Tercell automobile. Officer Thompson also questioned Claudio Estrada, an employee at Stafford Cleaners, located next door to Main Street Shoes. Estrada gave Officer Thompson a description of the fleeing vehicle and its license plate number. With this information in hand, Officer Thompson was able to determine that the owner of the vehicle was Lasonya Wafer, a girlfriend and roommate of appellant=s sister, Charletta Johnson. Officer Thompson contacted Wafer to inquire about the vehicle=s whereabouts on the date of the offense. Wafer stated that appellant had borrowed her vehicle to go to the mall that day and kept it longer than expected. When appellant did not return the vehicle on time, she called him and he brought it back later that day. Wafer stated that appellant told her that if the police pulled the vehicle over to say that she had Aborrowed it to someone else.@ Wafer further stated that appellant told her that he had taken some shoes to be dyed and that the Aboy@ pulled a gun on him, and he had to shoot the Aboy@ before the Aboy@ shot him. Officer Thompson compiled a photo spread from which Pacquette positively identified appellant as the assailant. Appellant was arrested and charged with the offense of aggravated assault with a deadly weapon. The jury found appellant guilty as charged, and assessed punishment at twenty years= confinement in the Texas Department of Criminal Justice, Institutional Division. II. Issues and analysis A. Is the evidence factually sufficient to support appellant=s conviction for aggravated assault? We first address appellant=s third issue in which he asserts that the evidence is factually insufficient. When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, CS.W.3dC,C, No. PD-469-05, 2006 WL 2956272, at *8B10 (Tex. Crim. App. Oct. 18, 2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict. Watson, CS.W.3d at C, 2006 WL 2956272, at *10. If this court determines that the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Watson, CS.W.3d at C, 2006 WL 2956272, at *8B10. 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. See id; Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). In contending that the evidence is factually insufficient to support his conviction, appellant relies on Ward v. State, 48 S.W.3d 383 (Tex. App.CWaco 2001, pet. ref=d). Appellant emphasizes that Pacquette (the complainant) was shaken and upset when questioned by Officer Thompson, and admitted on cross-examination that he described the Asuspect@ as being 5'5" to 5'6" in height and that appellant was significantly taller. The facts in Ward are distinguishable. In Ward, the defendant accused of robbery produced testimony from fellow co-workers, who stated that the defendant was at work on the day of the offense. Id. at 390B91. This testimony was further corroborated by the defendant=s time cards. Id. Thus, the Ward court correctly concluded that the time-line for the defendant to have committed the robbery required almost split-second timing, and reversed the defendant=s conviction for factual insufficiency. Id. Unlike the accused in Ward, appellant brought forth no controverting testimony regarding his whereabouts at the time of the crime. The jury is free to consider any inconsistencies or discrepancies regarding appellant=s height. See Watson, CS.W.3d at C, 2006 WL 2956272, at *8B10. As the sole judge of the credibility of the witnesses and the weight to be given their testimony, the jury was free to accept or reject all or any part of the testimony of any witness. See id; Fuentes, 991 S.W.2d at 271. Thus, though appellant claims Charletta Johnson=s testimony was Aextremely unreliable@ and that another individual (Charles Sexton) could have been the perpetrator, these issues were for the jury to decide. Contradictions or conflicts between the witnesses= testimony do not destroy the sufficiency of the evidence; rather, they relate to the weight of the evidence and the credibility the jury assigns to the witnesses. See Weisinger v. State, 775 S.W.2d 424, 429 (Tex. App.CHouston [14th Dist.] 1989, pet. ref=d). The jury exclusively resolves conflicting testimony in the record. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). A reviewing court may not substitute its conclusions for that of the jury, nor may it interfere with the jury=s resolution of conflicts in the evidence. See Watson, CS.W.3d at C, 2006 WL 2956272, at *8B10. The evidence in the record of appellant=s guilt is overwhelming. Pacquette testified that, on the morning of May 1, 2003, he was working at the shoe store when appellant and two other individuals entered the store around 11:00 a.m. to Alook around.@ Appellant and his companions left the store without purchasing anything. Later that morning, Pacquette saw the green Toyota Tercel automobile they had driven parked further up the strip mall. Around 2:00 p.m., appellant returned and engaged in a discussion with Pacquette about having his shoes dyed while appellant=s companions remained outside in the vehicle. Appellant then went back outside for about thirty to forty-five minutes. During this time, Pacquette became suspicious and put a revolver in the waistband of his pants. Appellant then reentered the store with his companions and gave Pacquette approximately forty dollars as a deposit for the shoes. Pacquette, who was on the phone with a friend, turned around and saw appellant holding a small semi-automatic pistol. Pacquette took the phone and threw it at appellant and ran out the back of the store. Appellant left the store, firing off shots from his own weapon as he fled. Appellant and his companions got back into the green Toyota Tercell and fled the scene. Pacquette positively identified appellant both in a photo spread and again at the courthouse during trial. Pacquette had several opportunities to observe appellant=s face during the incident. Lasonya Wafer, Charletta Johnson (appellant=s sister), and Claudio Estrada, an employee at a dry cleaners next door, all corroborated Pacquette=s testimony regarding the vehicle driven by appellant on the day of the offense. We are not able to say, with some objective basis in the record, that appellant=s conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict. See id. Accordingly, the evidence is factually sufficient to support appellant=s conviction. We overrule his third issue. B. Did the trial court err in striking for cause venirepersons Patricia Pratt and Hamid Mollaei Merhja? In his first two issues, appellant contends the trial court erred in granting the State=s request to strike venirepersons Patricia Pratt and Hamid Mollaei Merhja. Appellant contends that these individuals stated during voir dire that they could not be convinced beyond a reasonable doubt of someone=s guilt if there were only one witness. Appellant relies on Zinger v. State, in which the Court of Criminal Appeals held that a venireperson who stated that the testimony of one witness could never convince him of guilt beyond a reasonable doubt was not subject to a challenge for cause. 932 S.W.2d 511 (Tex. Crim. App. 1996). Even if the trial court erred in granting the challenges for cause as asserted in appellant=s first two issues, this error did not deprive appellant of a lawfully constituted jury. See Jones v. State, 982. S.W.2d 386, 394 (Tex. Crim. App. 1998). In Jones, the Court of Criminal Appeals held that if a veniremember is erroneously excused for cause it will not necessarily result in a reversal of the conviction. See Jones, 982 S.W.2d at 394. A defendant has no right to have any particular person on the jury, but only to have the jurors who serve be qualified. Id. For the trial court=s error in granting a challenge for cause to be harmful, the erroneous ruling must have deprived appellant of a lawfully constituted jury, that is, a jury composed of qualified persons. Murphy v. State, 112 S.W.3d 592, 598 (Tex. Crim. App. 2003); Jones, 982 S.W.2d at 394. The record does not show that the granting of challenges for cause as to venirepersons Patricia Pratt and Hamid Mollaei Merhja deprived appellant of a lawfully constituted jury. There is no indication that the jurors who actually served at appellant=s trial were biased, interested, or otherwise disqualified from serving on the jury. See Feldman v. State, 71 S.W.3d 738, 749 (Tex. Crim. App. 2002). Therefore, we overrule appellant=s first two issues. Having overruled all of appellant=s issues on appeal, we affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed November 7, 2006. Panel consists of Justices Fowler, Edelman, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b).