Ketchum v. State, No. 14-05-01083-CR (Tex. App. 4/12/2007)
| Decision Date | 12 April 2007 |
| Docket Number | No. 14-05-01083-CR.,14-05-01083-CR. |
| Parties | IDARINE RADA KETCHUM, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 1018571.
Affirmed.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
A jury found appellant, Idarine Rada Ketchum, guilty of aggravated robbery and sentenced her to fifteen years' confinement. In three issues, appellant contends (1) the evidence is legally insufficient, (2) the evidence is factually insufficient, and (3) the line-up procedure used by the police was impermissibly suggestive, tainting the complainant's courtroom identification. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
On March 1, 2005, Maria Sanchez, complainant, was working as a bartender at the Del Barrio bar. Around 11:30 p.m., Sanchez and three other people were in the bar when two African-American men and an African-American woman entered the bar. The faces of the two men were covered by ski masks. The woman wore a loose, black hooded jacket and did not have her face covered. One man carried a shotgun and the other man and the woman each carried smaller guns. Initially, one of the men went to the bar and pointed his gun to the head of a woman sitting at the bar and asked her for money. The other man and the woman knocked the two men standing at the pool table to the ground. The man at the bar pointed his gun at Sanchez and asked her for money. She gave him approximately $50 from the register. The woman approached Sanchez and standing two to three feet from her, pointed a small gun at Sanchez's forehead and demanded more money. Sanchez told the female perpetrator that she did not have any more money. The three perpetrators then left through the back of the bar. Sanchez called 9-1-1.
Officer M.R. Burdick responded to the call. Sanchez gave him a description of the perpetrators. She described the female as a small, African-American woman with a very narrow face wearing a black jacket with a hood. The woman's jacket was zipped-up about halfway, revealing only skin. Sanchez could not see whether she was wearing a shirt underneath. Less then two hours later, Officer Burdick located and arrested appellant with two black males twelve blocks from the scene of the robbery. Appellant was in possession of approximately $50. She was wearing a black loose-fitting hooded jacket and a low-cut tank top that exposed her chest.
Officer Steven Guerra, the assigned investigator, created a videotape line-up featuring appellant and four other women. The day after the robbery Officer Guerra called Sanchez and asked her to view a video line-up. During the phone call, he mentioned that some people had been arrested; however, he was not sure whether they were involved in the robbery. Officer Guerra went to Sanchez's home later that day to show her the video line-up. When Sanchez viewed the video line-up, she immediately identified appellant as the female perpetrator.
At appellant's urging, the trial court conducted a hearing outside the presence of the jury regarding the admissibility of Sanchez's out-of-court and in-court identifications of appellant to determine if the video line-up was impermissibly suggestive. After Sanchez and Officer Guerra testified regarding the video line-up, the trial court concluded the State's investigators had not engaged in conduct that rendered the video line-up impermissibly suggestive. Accordingly, the trial court ruled that the out-of-court and in-court identifications by Sanchez were admissible. On appeal, appellant challenges this ruling as well as the legal and factual sufficiency of the evidence.
Appellant contends the evidence at trial was legally insufficient to support her aggravated robbery conviction because (1) the State did not prove beyond a reasonable doubt that a firearm was used during the robbery, (2) no physical evidence was recovered, (3) Sanchez was the State's only eyewitness who testified, and (4) out of three perpetrators, appellant was the only person charged.
In a legal sufficiency review, we consider all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness's testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref'd).
A person commits aggravated robbery if in the course of committing theft of property and with intent to obtain and maintain control of the property, she intentionally and knowingly threatens and places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. See Tex. Penal Code Ann. § 29.02 (Vernon 2003); TEX. PENAL CODE ANN. § 29.03 (Vernon 2003). When, as in this case, the State alleges in an indictment for aggravated robbery that the deadly weapon used or exhibited by the defendant was a firearm, the State is required to prove, beyond a reasonable doubt, that the deadly weapon used or exhibited was, in fact, a firearm. See Gomez v. State, 685 S.W.2d 333, 335S36 (Tex. (Tex. Crim. App. App. 1985); Arthur v. State, 11 S.W.3d 386, 389 (Tex. App.CHouston [14th District.] 2000, pet. ref'd).
After viewing the evidence in the light most favorable to the verdict, we conclude there is sufficient evidence for a jury to find that appellant committed aggravated robbery with a firearm. Appellant contends the State failed to prove the use of a firearm beyond a reasonable doubt. Specifically, she argues the evidence is legally insufficient because Sanchez did not fully describe the gun, and a gun was not recovered. However, "testimony using any of the terms `gun,' `pistol,' or `revolver' is sufficient to authorize the jury to find that a deadly weapon was used" in an aggravated robbery. Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1980). In Carter v. State, this court found the evidence legally sufficient to prove a firearm was used in an aggravated robbery although no firearm was recovered because the victims testified the defendant pointed a "gun" at their heads during the robbery. 946 S.W.2d 507, 509-10 (Tex. App.CHouston [14th Dist.] 1997, pet. ref'd); see also Joseph v. State, 681 S.W.2d 738, 739 (Tex. App.CHouston [14th Dist.] 1984, no pet.) ( testimony making reference to "guns" and a "long-barreled gun" as legally sufficient to prove a firearm was used).
At trial, Sanchez testified the female perpetrator had a "small gun." Sanchez also testified that, in contrast to the small gun appellant carried, one of the male perpetrators had a "shotgun." Accordingly, we find the evidence legally sufficient to support the jury's finding that a firearm was used.
Appellant also contends the evidence is legally insufficient because the police did not recover any physical evidence. However, testimony of one eyewitness is sufficient to support a jury's verdict. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Walker v. State, 180 S.W.3d 829, 832 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Accordingly, Sanchez's testimony is sufficient to support the jury's verdict even in the absence of physical evidence from the scene. Nevertheless, the State offered and the trial court admitted the black jacket worn by appellant when she was arrested by Officer Burdick Sanchez testified that it was the same jacket worn by the female perpetrator during the robbery. Sanchez based her identification of the jacket on the fact that the hood was loose.
Appellant further contends the evidence is legally insufficient because the State should have called other witnesses. However, as we just discussed, the testimony of one eye witness is sufficient to support a jury's verdict. Id.
Finally, appellant contends the evidence is legally insufficient because the other two men who were with appellant when she was arrested were not charged with the offense. However, the record reflects that the other two perpetrators wore ski masks concealing their faces during the robbery. Consequently, Sanchez was unable to describe their facial features to Officer Burdick to support identification that would warrant arrest. Moreover, whether the State charged the two men who were with appellant at the time of her arrest has no impact on the legal sufficiency of evidence to convict appellant.
Examining the evidence in the light most favorable to the verdict, we conclude a reasonable jury could have found beyond a reasonable doubt that appellant committed aggravated robbery. Accordingly, we overrule appellant's first issue.
Appellant challenges the factual sufficiency of the evidence arguing (1) the black jacket did not have any distinguishing features, (2) Sanchez was the only witness called by the State to testify, and (3) Sanchez's identification of appellant was unreliable because Sanchez was probably in a state of shock.
When reviewing factual sufficiency of the evidence, we view all the evidence in a neutral light and set aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (en...
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