Brown, Don Richard v. State

Opinion issued April 24, 2003.

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00856-CR

DON RICHARD BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 917205

MEMORANDUM OPINION

Appellant, Don Richard Brown, was charged by indictment with the felony

offense of aggravated robbery. A jury found appellant guilty of the lesser included

offense of robbery, and the trial court assessed punishment at 45 years’ confinement.

In a single point of error, appellant challenges the factual sufficiency of the evidence

supporting his conviction.

Background

Appellant and his co-defendant, Michael Jones, were tried in a joint trial for the

robbery of the Tran family home. Two Tran family members, Tina Le and her

15-year-old daughter Elizabeth Tran, testified at trial. Before trial, appellant filed a

motion to suppress the out-of-court identifications of appellant made by Tran and Le,

asking the court to suppress the identifications until it held a hearing on whether the

identifications were impermissibly suggestive or whether appellant’s rights had been

violated during the identification process. In pre-trial proceedings, the trial court

stated that the motion was to be taken with the case, and appellant’s counsel did not

object.

At trial, Elizabeth Tran testified that she, her younger brother, and her mother

were making dinner at approximately 10:00 p.m. Tran stated that they were in the

kitchen when they heard a loud noise from the front of the house. Tran went into the

living room to investigate, and she encountered a stranger coming into the home

through the front door. At trial, Tran stated that the man she had seen was (1)

approximately 40-50 years old, (2) wearing a grey short-sleeved T-shirt with an

American flag logo on it and blue jeans, and (3) holding a rifle. The man told Tran

that he was “robbing the house.” Tran ran back through the kitchen and fled through

the kitchen door into the family’s garage to hide. Tran’s younger brother had also

fled into the garage to hide. The man followed Tran into the kitchen, where Le had

remained after her children had fled to the garage. The man pointed a gun at Le’s

head and pushed her down to the kitchen floor. At trial, Le described the man as

“kind of skinny.” Le stated that the man also had a little mustache and that he wore

a grey T-shirt with an American flag on it. Le could not remember what type of pants

the man was wearing, only that they were long pants. The man ordered Le to close

her eyes, and then started towards the garage after her daughter.

From her hiding place inside the garage, Tran heard the man telling her mother

not to call the police. The man then came into the garage and found Tran. He put the

gun he was holding to Tran’s neck and told her to lie down on the floor. The man

next put the gun to Tran’s mouth and asked her where the family’s money was. Tran

told him they did not have any. The man left the garage and went back into the

kitchen to demand Le give him whatever money and jewelry were in the home. Le

agreed to give him whatever money she had and led him into her bedroom. On the

way into her bedroom, Le saw a second man coming out of her bedroom with his

hands full of the family’s belongings. Le stated that this second robber was taller

than the first, and that he appeared to be stronger. Le also stated that this second

robber wore a red shirt and blue jeans.

In Le’s bedroom, the first robber pushed Le down and tore her blouse open.

He pinched her nipple, telling her that he would kill her. Le stated that the robber

then showed her a tattoo on his arm and again stated that if she called the police, he

would come back to kill her and her family. At some point during the exchange, the

man noticed jewelry Le wore and demanded that she take it off. Le took off her

jewelry and gave it to the robber. Le testified that the robber put the jewelry she gave

him into his pocket.

While Le and the first robber were in Le’s bedroom, the second robber entered

the family garage and attempted to hot-wire the family van. He was unable to start

the van, so he instead told Tran, who was still in the garage, to get up and go into her

mother’s bedroom. When Tran entered her mother’s room, she saw her mother was

sitting on the bed with her shirt torn open, visibly upset. Tran saw the first man show

her mother his tattoo. Tran also testified that the first man was telling her mother that

he “was an American.” The second robber, who had followed Tran into her mother’s

bedroom, at that point asked the first robber where the “money and gold” were. The

first robber pointed to his pants pocket. The second robber then asked Le where the

keys to the family van were, and Le told him that they were in the kitchen. The first

robber put the gun to Le’s head, and both men escorted Le into the kitchen to find the

van keys. Le gave the van keys to the first robber and, following their demands,

opened the garage door so that they could drive away. The first robber gave the keys

to the second robber, and they drove away in the van with the first robber as the

passenger and the second robber as the driver. Le ran back into her house and called

the police, who arrived 10 minutes later.

Approximately 20 minutes after the police arrived at Le’s home, officers told

her that the men who had stolen her van had been arrested. Le and Tran were taken

in a police car to the location where the men had been apprehended. Le stated that,

as they approached in the police car, she saw the van had been damaged and two men

in handcuffs. Le testified that she saw the first robber, no longer wearing the grey

American flag T-shirt, in handcuffs, and that the second robber was in the ambulance.

Police officers asked Le to look carefully and to confirm whether the men she saw

were the ones who had robbed the Tran house. Le confirmed that they were. Le also

stated that, although it was nighttime, the scene and the suspects were illuminated by

the lights of patrol cars as well as light from the open doors of the ambulance.

Tran testified that, when she arrived at the scene, she saw the first robber, bare-chested and wearing blue jeans, in a police car, and she saw the second robber in an

ambulance. From her view in the police car, Tran positively identified the men as the

robbers.

In court, Tran identified appellant as the first robber. After she identified

appellant, Tran admitted that she was more familiar with the first robber, and she

estimated that she was in his presence for at least 2 minutes. She also stated she was

confident of her in-court identification of him. Le, however, was unable to identify

appellant as the first robber in court. When asked during her testimony if she could

identify the first robber, Le stated that she did not remember what he had looked like,

and she was unable to point him out in the courtroom.

The State also presented the testimony of one of the police officers involved

in apprehending appellant, Officer K.M. Smith of the Houston Police Department.

Officer Smith testified that, on the evening of the robbery, he saw a van matching the

description of the stolen Tran family van. Officer Smith followed the van, which

drove normally until it made a turn on a dead-end street, where it stopped. Officer

Smith stopped behind the van and turned on his spotlight. Officer Smith got out of

his police car and approached the van on the driver’s side. The van then suddenly

reversed towards Smith’s car, went around the police car, and sped away. Officer

Smith got back into the police car and pursued the van. While the van was attempting

to evade the police, Officer Smith was able to see that the van’s driver-side door

remained partially open, but he was unable to see whether anything was being thrown

out. After approximately two miles, the van crashed into a freeway embankment. As

the van hit the embankment, first the driver, then the passenger, left the van. The

driver and the passenger ran away from the van in different directions. Officer Smith

pursued the passenger while another police officer chased down the driver. Officer

Smith successfully chased down the fleeing passenger and returned him to his police

car. Upon apprehending appellant, Smith searched him, but found only a single bill.

Smith testified that appellant was wearing jogging pants at the time he was

apprehended. Officer Smith handcuffed the passenger and then placed him in the

back of Smith’s police car. A search of the van revealed a pellet gun, a few torn

Christmas packages, several new items of children’s clothing with the tags torn off,

and cans of beer, some of which had been emptied. At trial, Smith identified

appellant as the passenger in the van. When questioned at trial, Smith could not

remember whether or not appellant’s pants had pockets.

At trial, appellant’s co-defendant’s counsel cross-examined Tran on the

description of the robbers that she had given to the police. During cross, appellant’s

co-defendant’s counsel pointed out to Tran that his client had a large tattoo on his

face, which she had not mentioned in her description of the robbers. When asked

about appellant’s co-defendant’s facial tattoo, Tran admitted that her range of vision

was limited and that she could not see the tattoo from the witness stand. The trial

court granted permission for appellant’s co-defendant to approach the witness stand

and remain at an undisclosed distance from Tran. Even at a presumably closer

distance, Tran again could not see the tattoo. Tran admitted that she wears glasses,

and that she was not wearing glasses or contacts during her trial testimony.

Analysis

When reviewing a challenge to the factual sufficiency of the evidence, we ask

“whether a neutral review of all the evidence, both for and against the finding,

demonstrates that the proof of guilt is so obviously weak as to undermine confidence

in the jury’s determination, or the proof of guilt, although adequate if taken alone, is

greatly outweighed by contrary proof.” Johnson v. State , 23 S.W.3d 1,11 (Tex. Crim.

App. 2000). In our factual-sufficiency review, we review all the evidence admitted,

whether proper or improper. Young v. State , 976 S.W.2d 771, 773 (Tex.

App.—Houston [1st Dist.] 1998, pet. ref’d).

At the outset, we note the narrow scope of the issue appellant has presented for

our review. Appellant’s sole point of error challenges his conviction by arguing that

the evidence was factually insufficient to establish that he was one of the men who

committed the robbery. Specifically, appellant complains that the identification

procedures used by the police were impermissibly suggestive and that Tran’s and Le’s

subsequent out-of-court and in-court identifications of appellant as one of the men

who committed the robbery were therefore tainted by a substantial likelihood of

misidentification. However, during trial, appellant did not reintroduce his pretrial

motion urging the suppression of Tran’s and Le’s in-court identifications of him as

one of the men who robbed their home, nor did appellant object when Tran identified

him in court as the first robber. Appellant has accordingly waived the issue of

whether the identification procedures used by police were impermissibly suggestive

or whether Tran’s in-court identification of him was tainted by the out-of-court

procedures . Tex. R. App . P. 33.1. Accordingly, the only issue before us is whether,

when viewed in a neutral light, the sum of the evidence presented to the jury is

sufficient to support appellant’s conviction.

On appeal, appellant argues that the evidence showed that, at the time he was

apprehended by police, he was not dressed as Le and Tran testified the first robber

was dressed. Tran and Le both admitted at trial that appellant was not wearing the

grey American flag T-shirt when they saw him in the police car, nor could Officer

Smith remember whether appellant had been wearing pants with pockets.

Additionally, appellant points to the fact that no money or jewelry was found on his

person or in the van at the time he was apprehended. Appellant argues that, in light

of (a) the short time period between the robbery and his apprehension by police and

(b) the fact that his co-defendant was wearing the same outfit Tran and Le described

the second robber wearing, it is unlikely that appellant would have had time to both

change his clothes and dispose of the stolen property after the robbery. Instead,

appellant contends that it is more likely that the first robber, along with the bulk of

the stolen property, was dropped off by Michael Jones after the robbery and that

appellant somehow ended up in the van shortly thereafter. Additionally, appellant

asserts that Tran’s in-court identification of him as the first robber was unreliable

evidence because improper police procedures tainted her out-of-court identification

on the night of the robbery and her in-court identification was nullified by evidence

of her poor vision.

Essentially, appellant is attempting to assert on appeal an alternative theory of

the case and to argue that his version of events is more plausible than the one

presented by the State at trial. Conflicts in the testimony are for the jury to resolve

for themselves, and we must defer to the jury’s determinations regarding the weight

and credibility of the evidence. Johnson , 23 S.W.3d at 8 .

Uncontroverted evidence showed that appellant was riding as a passenger in

the stolen Tran van shortly after the robbery, and that he attempted to evade Officer

Smith after leaving the van. In addition, when he was apprehended by police,

appellant was positively identified by both Tran and Le as the first robber. Both Tran

and Le stated that, during the robbery, they interacted with appellant for several

minutes at extremely close range and both of their out-of-court identifications of

appellant were aided by the bright lights of police and emergency response vehicles.

Further, Tran stated at trial that she was positive of her in-court identification of

appellant as the first robber. The jury heard and saw evidence of Tran’s apparently

limited vision and they were thus able to evaluate her range of sight and her

credibility as an identification witness. See Jones v. State , 944 S.W.2d 642, 647-49

(Tex. Crim. App. 1996) (stating that the jury is the exclusive judge of witness

credibility and the weight to give testimony). Appellant’s attempt to discredit the in-court and out-of-court eyewitness identifications provided by Tran and Le does not

explain either his presence in the stolen van or his subsequent attempt to evade police.

Finally, appellant’s contention that there was no time between the robbery and his

apprehension for him to change his clothes is contradicted by the contents of the van

upon recovery. Tran and Le stated that the van was empty when it was in the family’s

garage, but when the van was recovered it contained several cans of beer in addition

to some of the family’s stolen Christmas presents. The evidence indicates there was

sufficient time for appellant and his co-defendant to obtain and consume several cans

of beer from an unknown source and to dispose of the rest of the stolen Tran family

property before encountering Officer Smith.

We cannot say that the evidence presented of appellant’s guilt was so obviously

weak as to undermine our confidence in the jury’s determination, or that the proof of

appellant’s guilt, although adequate if taken alone, is greatly outweighed by contrary

proof. Johnson , 23 , S.W.3d at 11. Accordingly, 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 Chief Justice Radack and Justices Nuchia and Hanks.

Do not publish. Tex. R. App. P. 47.2 (b).