Isaiah Elam Thomas v. State

Opinion issued December 16,

2010.

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00671-CR

NO. 01-09-00672-CR

ISAIAH ELAM THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1141973

Trial Court Cause No. 1141974

MEMORANDUM OPINION

A

jury convicted Isaiah Elam Thomas of aggravated robbery and, after Thomas

pleaded true to the allegations in an enhancement paragraph, assessed

punishment at twenty years’ confinement.

See Tex. Penal Code Ann. § 29.03(a) (Vernon 2003). On appeal, Thomas contends that factually

insufficient evidence exists to support the jury’s verdict because the

complainants knew Thomas personally and gave a detailed description of the

robbers to the police at the scene, but failed to identify Thomas by name until

hours after the incident while at the police station, after they had a chance

to confer with one another. We hold that

the State presented factually sufficient evidence that Thomas committed the

robbery and therefore affirm.

Background

Thomas lived next door to the

complainants, Lakeisha Roberts and Antoinette Breed, for a few months before

the robbery. During this time, Roberts

and Thomas had become friends. Roberts

occasionally invited Thomas to her apartment and over for dinner, and they

would sometimes have “water fights” to pass the time. Roberts had also been to Thomas’s apartment,

where she met Jeremiah Curry, Thomas’s brother, and Derrick Tillis, his

cousin. A few days before the robbery,

Thomas mentioned to Roberts that he had lost some money, and Roberts and Breed

let Thomas come into their apartment and look around for the money. Shortly thereafter, Roberts and Breed

purchased a new car with money Roberts had received from an insurance

settlement.

On the night of the robbery, Breed,

Roberts, her son Kailen, Kailen’s cousin Lakeisha Brown, and Roberts’

goddaughter Denaisha were in the apartment.

Around midnight, Brown was talking on her cell phone in the living

room. Roberts, Breed, and Kailen were

viewing a movie in the master bedroom, while Denaisha slept in Kailen’s

room. Brown heard a knock on the front

door and told Roberts, who went to the door and asked who was knocking. Someone outside responded, “Mike.” Roberts had a friend named Mike, so she

opened the door. An assailant

immediately “popped” Roberts in the face, twice, with the butt of a gun. The person, hitting her, yelled at her to get

down on the ground. Two other men and

two women also entered Roberts’s apartment.

The man who hit Roberts wore a

bandana that covered most of his face, but Roberts recognized Thomas’s “baby

fro” hairstyle, his distinctive “kid’s” voice, and his physical build. Thomas

was sixteen at the time of the robbery.

According to Roberts, the only other person she knew at the apartment

complex who had a voice like Thomas was her ten-year-old son, Kailen. She felt confident that Thomas was the one

attacking her. Roberts also recognized

Curry and Tillis’s voices, and she heard the men refer to each other by their

first names.

As Roberts opened the door, Breed and

Kailen stood in the doorway to the master bedroom. Thomas bound Roberts’s hands and covered her

eyes with duct tape, while Curry ordered Breed to lie down on the living room

floor and Kailen to sit on the couch.

Curry then taped Breed’s hands together and put duct tape over her eyes,

but the tape did not stick. Breed

watched the remainder of the robbery.

Breed saw Thomas, Curry, and Tillis ransack the apartment and decide

which items to steal. Breed recognized Thomas from his hairstyle, shoes, and

his voice when he said Curry’s name.

Brown did not know any of the

robbers; however, she heard Thomas and Curry call each other by name during the

robbery. Thomas asked Curry if he should

take Roberts’s computer, and Curry replied, “No, Isaiah[, it] is going to take

too much space.” According to Brown, as

the men searched the apartment, they asked about Thomas’s missing money, as

well as kicked and hit the occupants with their guns. As Thomas left the apartment, he kicked

Roberts and said, “Bitch, this is for taking my money so I’m repaying you

back.” After the robbers left, Breed

broke out of her bindings. She and Roberts locked the door and then called the

police.

Upon arriving at the apartment,

Baytown Police Department Officer Dillow noticed that Roberts was bleeding from

a head wound and that the apartment was in total disarray. Dillow and BPD Officer Pentecost testified that

the complainants appeared very excited and upset. Pentecost spoke with Roberts at the scene and

obtained a physical description of the robbers.

Pentecost did not ask Roberts if she personally knew the robbers. Although Breed testified that she gave Pentecost

the names of the robbers at the scene, Detective Latta testified that, when he

arrived at the scene, he asked the other officers who may have been involved,

and none of the officers identified the robbers.

In their statements taken later at

the police station, both Roberts and Breed identified Thomas as one of the

robbers. Roberts testified that her

formal statement was a more accurate statement than the earlier oral statement

she gave to the officers at the scene, and she attributed the greater detail

and specific identification of Thomas in the latter to the fact that, by this

point, she had had a chance to calm down and get her thoughts together. When asked on cross-examination why she did

not give the police Thomas’s name at the scene, she stated that she was worried

about her family and, at that time, she was a “startled, nervous wreck” and

“wasn’t thinking straight.” Breed noted

that, although she and Roberts rode in the same police car to the station, they

did not talk about what happened because they were too shaken up. Breed also testified that the police put her

and Roberts in separate rooms as soon as they arrived at the station. Detective Latta noted that when he started

Roberts’s statement approximately four hours after the robbery, she had calmed

down, but she still seemed upset, scared, and worried for her children.

Thomas testified on his own behalf,

denying involvement in the robbery. He

claimed that he was at a cousin’s house on that night. Thomas suggested that Roberts and Breed made

up his involvement in the robbery because Roberts had unrequited affection for

him. He also stated that Roberts and

Breed had briefly exchanged pleasantries with Curry and Tillis, which was not

enough speech to have recognized the men’s voices. Thomas believed that either Roberts or Breed

had made up the story of his involvement and now felt afraid to change the

story. On cross-examination, Thomas

conceded that he spoke to Roberts and Breed much more often than his cousin and

brother, and therefore if they recognized any voice from the robbery, it would

likely be his.

Discussion

Thomas

contends that the State failed to present factually sufficient evidence to

prove that he committed the aggravated robbery of Roberts and Breed. An appellate court reviews both legal and

factual sufficiency challenges using the same standard of review. Brooks

v. State , PD-0210-09, 2010 WL 3894613, at *14 , 21–22 (Tex. Crim. App. Oct.

6, 2010); Ervin v. State , No. 01-10-00054-CR, 2010 WL 4619329 , at *2–4

(Tex. App.—Houston [1st Dist.] Nov. 10, 2010, no pet. h.) (construing majority

holding in Brooks ). Under this

standard, evidence is insufficient to support a conviction if, considering all

the record evidence in the light most favorable to the verdict, no rational

fact finder could have found that each essential element of the charged offense

was proven beyond a reasonable doubt. See Jackson v. Virginia , 443

U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979); In re Winship , 397 U.S. 358,

361 , 90 S. Ct. 1068, 1071 (1970); Laster v. State , 275 S.W.3d 512, 517

(Tex. Crim. App. 2009); Williams v. State , 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007). Viewed in the light most favorable to the verdict, the

evidence is insufficient under this standard in two circumstances: (1)

the record contains no evidence, or merely a “modicum” of evidence, probative of

an element of the offense; or (2) the evidence conclusively establishes a

reasonable doubt. See Jackson , 443 U.S. at 314 , 318 n.11,

320, 99 S. Ct. at 2786 , 2789 n.11, 2789; Laster , 275 S.W.3d at 518 ; Williams ,

235 S.W.3d at 750 . An appellate court

presumes that the fact finder resolved any conflicting inferences in favor of

the verdict and defers to that resolution. See Jackson , 443

U.S. at 326 , 99 S. Ct. at 2793 ; Clayton v. State , 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). An appellate court may not re-evaluate the weight

and credibility of the record evidence and thereby substitute its own judgment

for that of the fact finder. Williams , 235 S.W.3d at 750 .

Thomas

contends that the evidence is factually insufficient primarily because Roberts

and Breed, who were friends with Thomas and knew him relatively well, did not

immediately identify Thomas and give his name to the police upon their arrival

at the scene, and this delay wholly undermines Roberts and Breed’s credibility

as complaining witnesses. Thomas suggests

that their delay in identifying him by name indicates that, after spending time

together on the way to and at the police station, Roberts and Breed fabricated

a story that Thomas committed the robbery.

But

other testimony supports the jury’s implied determination that Roberts and

Breed were credible when they testified that they recognized Thomas by his

hairstyle, distinctive voice, physical build, and shoes. Both women and Lakeisha Brown, who did not

know any of the robbers, heard the men refer to each other by their first

names, “Isaiah” [Thomas] and “Jeremiah.”

All of the women also testified that, during the robbery, they heard the

robbers shouting about missing money. A

few days before the robbery, Thomas had approached Roberts and Breed to ask about

some money that he had lost, and Breed let him look around in their apartment

for the money. Roberts testified that,

as Thomas left her apartment during the robbery, he kicked her and said,

“Bitch, this is for taking my money, so I’m repaying you back.” Although Officer Pentecost and Detective

Latta testified that they did not receive names of the suspects at the scene,

Breed stated that she told Pentecost of the attackers’ names while still at the

apartment. Pentecost further explained

that he did not specifically ask Roberts whether she knew her attackers.

On

cross-examination, Roberts explained that she did not initially give Thomas’s

name to the officers because she was startled, nervous, not “thinking

straight,” and worried about her family.

At the scene, she was still asking herself what happened, asking why

this incident happened to her, and she wondered what she and her family did to

deserve the attack. All of the officers

agreed that, at the scene, Roberts was very excited, upset, and alarmed, and

she was bleeding from a head wound.

Latta testified that, although she had calmed down by the time he took

her statement four hours later, she still seemed upset, scared, and worried for

her family. Breed stated that, although

she and Roberts rode to the police station in the same car, they did not

discuss what happened because they were too shaken up. She further testified that the officers

placed her and Roberts in separate rooms immediately after arriving at the

station.

Thomas

cites to the Court of Criminal Appeals’ decision in Johnson v. State for the proposition that Roberts and Breed’s

identification of Thomas is unreliable based upon the record. See

Johnson v. State , 23 S.W.3d 1, 12 (Tex. Crim. App. 2000). In Johnson ,

the Court of Criminal Appeals affirmed the Corpus Christi Court of Appeals’

reversal of the case based on factually insufficient evidence that Johnson

committed aggravated sexual assault. Id. at 12 . An assailant unknown to the victim forced his

way into her car, drove the car to a remote location, and raped the

victim. Id. at 4 . The victim “never

got a lengthy, unobstructed view of [her attacker’s] face,” and could only

provide “scant details” to the police regarding the attacker’s appearance. Id. The victim could not positively identify her

attacker from a line-up, though she noted that Johnson’s eyes looked similar to

her attacker’s. Id. At trial, the victim

admitted that her identification of Johnson could not be absolutely certain

“because of the conditions and her state of mind.” Id.

at 5 .

In

contrast to the facts of Johnson ,

both Roberts and Breed knew Thomas, Curry, and Tillis. Although the robbers wore bandanas partially

covering their faces, the women recognized Thomas by his hairstyle, voice, and

physical build. Although Curry attempted

to cover Breed’s eyes, the tape loosened, and she watched the robbery. The robbers bound Brown’s hands, but did not

cover her eyes. Roberts, Breed, and

Brown all heard Thomas and Curry refer to each other by their first names. Roberts and Breed both positively identified

Thomas as a robber at the police station and during trial, and they never

equivocated on their belief that he was involved. Roberts specifically stated that she “felt

confident” that Thomas was one of her attackers. We conclude that the

jury rationally could have found that each element of the charged offense was

proven beyond a reasonable doubt . Accordingly, we hold

that the evidence was factually sufficient to support Thomas’s conviction for

aggravated robbery.

Thomas

further contends that the evidence of identification is factually insufficient

to support the verdict because the jury deliberated for over eight hours on “a

case that ostensibly should have been a slam dunk with two eyewitnesses

identifying a friend and neighbor.” We

do not consider the length or difficulty of jury deliberations when conducting

a sufficiency of the evidence review. See Scott v. State , 202 S.W.3d 405, 411

(Tex. App.—Texarkana 2006, pet. ref’d); Perez

v. State , 113 S.W.3d 819, 837 (Tex. App.—Austin 2003, pet. ref’d), overruled on other grounds by Taylor v.

State , 268 S.W.3d 571, 586-89 (Tex. Crim. App. 2008) (noting that

difficulty of deliberations and receipt of Allen

charge are “interesting,” but not evidence to consider in factual sufficiency

analysis). Lengthy deliberations do not

mean that the jury “arrived at an incorrect verdict or one not supported by

sufficient evidence,” but could instead support a conclusion that the jury

engaged in “thoughtful consideration of the evidence presented and that such

consideration, in turn, lends itself to correctness of the verdict.” Scott ,

202 S.W.3d at 411 . The length of the

jury’s deliberations does not affect our conclusion that factually sufficient

evidence exists to support the jury’s verdict.

Conclusion

We hold that the State presented

factually sufficient evidence to support the jury’s determination that Thomas

committed the aggravated robbery of Roberts and Breed. We therefore affirm the judgment of the trial

court.

Jane

Bland

Justice

Panel consists of Justices Keyes,

Higley, and Bland.

Do not publish. Tex.

R. App. P. 47.2( b ).