Johnson v. State

• Decision Date: 28 May 2008
• Docket Number: No. 10-07-00224-CR.,10-07-00224-CR.
• Citation: 263 S.W.3d 405
• Parties: Marcus Raynard JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

263 S.W.3d 405

Marcus Raynard JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 10-07-00224-CR.

Court of Appeals of Texas, Waco.

May 28, 2008.

Mary Lou Shipley, Waxahachie, TX, for Appellant.

Joe F. Grubbs, Ellis County District Attorney, Waxahachie, TX, for Appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

TOM GRAY, Chief Justice.

Marcus Johnson appeals his conviction for aggravated robbery. See TEX. PENAL CODE ANN. § 29.03(a) (Vernon 2003). We affirm.

I. SUFFICIENCY OF THE EVIDENCE. Johnson's first and fourth issues concern the factual sufficiency of the evidence.

A. Standard of Review. In Johnson's fourth issue, he contends, "The standard of review on factual insufficiency needs further

modification." (Br. at iii, viii, 47.) Johnson criticizes the Texas Court of Criminal Appeals' decision in Watson v. Texas:

According to Watson, when attacking the factual insufficiency of the evidence, an appellant has to show on the record some objective basis for concluding the great weight and preponderance of the evidence contradicts the jury's verdict. The focus is not on whether the State met its burden of proving the defendant guilty beyond a reasonable doubt. Instead, the focus is on whether the appellant can show he is innocent by the great weight and preponderance of the evidence.

(Br. at 48 (citing Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App.2006)).) But Johnson concedes: "Appellate courts are bound to follow the decisions of the Court of Criminal Appeals of Texas. This Court cannot, therefore, grant [Johnson] the relief he seeks." (Br. at 47 (citing Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.-Fort Worth 2003, pet. ref'd))); see State v. Colyandro, 233 S.W.3d 870, 870-71 (Tex.Crim.App.2007); Resendez v. State, 50 S.W.3d 84, 86 (Tex.App.-Waco 2001, pet. ref'd). We agree. We apply below the standard of review of the factual sufficiency of the evidence enunciated by the Court of Criminal Appeals, including in Watson.

We overrule Johnson's fourth issue.

B. Evidence of Identity. In Johnson's first issue, he contends that the evidence identifying Johnson as the robber was factually insufficient.

"Evidence may be factually insufficient if: 1) it is so weak" that the verdict is "clearly wrong and manifestly unjust or 2) the adverse finding is against the great weight and preponderance of the available evidence," "considering conflicting evidence." Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App.2007) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.App.2000) (internal quotation marks omitted)); see Watson, 204 S.W.3d at 414-15; see Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App.2007). "Such a factual sufficiency review requires the reviewing court to consider all of the evidence." Berry at 854 (citing Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006), cert. denied, ___ U.S. ___, 128 S.Ct. 87, 169 L.Ed.2d 66 (2007)); accord Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). "[T]he evidence is reviewed in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict." Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, ___ U.S. ___, 128 S.Ct. 282, 169 L.Ed.2d 206 (2007); accord Johnson, 23 S.W.3d at 7; Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim.App.1999). The factual-sufficiency standard of review permits the reviewing court to substitute its judgment for that of the jury only "to a very limited degree." Marshall, 210 S.W.3d at 625 (quoting Watson at 415, 417). "[F]actual-sufficiency review requires [a] reviewing court to afford `due deference' to a jury's determinations." Id. (quoting Johnson at 9). "A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias." Berry at 854 (citing Sells v. State, 121 S.W.3d 748, 754 (Tex.Crim.App.2003)); accord Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). A "requirement meant to assure that Texas' constitutional right to trial by jury remain `inviolate[,' TEX. CONST. art. I, § 15,] requires a direct-appeal court to exercise its factual-sufficiency jurisdiction with `deferential standards of review' to jury verdicts." Roberts v. State, 221 S.W.3d 659, 664 n. 7 (Tex. Crim.App.2007) (quoting Clewis at 135). "Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited degree, the review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur." Roberts, 220 S.W.3d at 524 (citing Watson at 417 & Cain v. State, 958 S.W.2d 404, 407, 410 (Tex.Crim.App.1997)). "[I]t is a jury, not a reviewing court, that accepts or rejects reasonably equal competing theories of" guilt. See Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001); accord Abbott v. State, 196 S.W.3d 334, 339 (Tex.App.-Waco 2006, pet. ref'd). "[A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the ... evidence contradicts the jury's verdict before it is justified in" reversing for factually insufficient evidence. Watson at 417 (emphasis in orig.).

"Direct and circumstantial evidence are treated equally: `Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.'" Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007)); see King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App.2000). "In a circumstantial-evidence case, it is unnecessary for every fact to point directly and independently to the guilt of the accused; rather, it is enough if the finding of guilt is warranted by the cumulative force of all the incriminating evidence." Powell v. State, 194 S.W.3d 503, 507 (Tex.Crim. App.2006); see Castillo v. State, 739 S.W.2d 280, 287 (Tex.Crim.App.1987).

In criminal cases, the identity of the criminal actor is an "elemental fact." Williams v. State, 948 S.W.2d 954, 959 (Tex.App.-Waco 1997, pet. ref'd); accord Page v. State, 88 S.W.3d 755, 763 (Tex. App.-Corpus Christi 2002), rev'd on other grounds, 137 S.W.3d 75 (Tex.Crim.App. 2004); see, e.g., Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App.2004); O'Neal v. State, 49 Tex.Crim. 297, 298, 92 S.W. 417, 417 (1906); Kunde v. State, 22 Tex.App. 65, 69, 3 S.W. 325, 331 (1886). "Evidence as to the identity of a" criminal "may be proven by direct or circumstantial evidence." Oliver v. State, 613 S.W.2d 270, 274 (Tex.Crim.App.1981) (op. on reh'g) (en banc); accord Lockwood v. State, 237 S.W.3d 428, 432 (Tex.App.-Waco 2007, no pet.) (quoting Clark v. State, 47 S.W.3d 211, 214 (Tex.App.-Beaumont 2001, no pet.)); In re C.D.S., No. 10-07-00226-CV, 2008 WL 257238, *2, 2008 Tex.App. LEXIS 706, at *9 (Tex.App.-Waco Jan. 30, 2008, no pet.) (mem. op.) (juvenile adjudication).

The State points primarily to the following evidence. Billy Joe Mayo testified that one morning before daylight, he was awakened by a loud noise. Without putting on his glasses, Mayo went to investigate. Mayo found a stranger in his house. Mayo generally described the man by race, height, weight, and clothing, including "[a] scarf of some type" on his head. (3 R.R. at 32.) The stranger put a knife to Mayo's throat and demanded valuables. When Mayo said that he had none, the stranger ransacked Mayo's bedroom. Meanwhile, the stranger found a red bandana and covered his face with it. The stranger found and took Mayo's wallet and cellular telephone, and some jewelry. The robber told Mayo to wait twenty minutes before moving and left on foot. Mayo waited for about fifteen minutes, then called the police. Mayo had not been able to see the robber well enough to identify him. Ennis Police Department Officer Sid Lopez testified that he and other officers arrived at Mayo's house within two or three minutes of Mayo's call. Officer Lopez saw that Mayo's door had been kicked in. Officer Jason York testified that he also responded. Officers Lopez and York began searching the neighborhood on foot. Officer York saw James Cox in his yard down the street from Mayo's house, and asked if Cox had seen anyone matching the description of the robber. Cox indicated the duplex across the street. Officer York waited there until Detective Sergeant John Erisman and other officers arrived. Sgt. Erisman testified that he knocked on the door and windows for several minutes before Bruente Williams answered and came outside. Williams told Sgt. Erisman that only she and Johnson were inside the apartment. When Williams started back inside, she found the door locked behind her. After several more minutes of knocking and calling, Johnson came to the door. Johnson was wearing blue jeans and a light-colored tank top, appeared hot and sweaty, and did not appear to have been sleeping. Johnson also had around his head an indentation of the sort caused by wearing a "do rag."¹ (3 R.R. at 109.) When officers searched Johnson's and Williams's bedroom, they found a do-rag thrown behind a cabinet, a red bandana and a knife on a table, and a pair of men's tennis shoes. The tread of the tennis shoes appeared consistent with the footprint left when Mayo's door was kicked in. At trial, Cox identified Johnson as the man he saw, and said that the man had been wearing blue jeans, a dark T-shirt, and a do-rag. The State also introduced evidence that after Johnson was arrested, he called Williams from jail and told her that he had not known that Cox would be outside, and directed Williams to give police an alibi statement to the effect that he had been in bed all night, and to get statements from Mayo and Cox recanting their statements to police. At trial, Williams testified that she would not have known if Johnson had gotten out of bed and left the apartment,...