Lewis v. State, 06-02-00106-CR.

CourtCourt of Appeals of Texas
Citation126 S.W.3d 572
Docket NumberNo. 06-02-00106-CR.,06-02-00106-CR.
PartiesKevin LEWIS, a/k/a Kevin Tyrone Lewis, Appellant v. The STATE of Texas, Appellee.
Decision Date07 January 2004

Noemi A. Collie, Dallas, for appellant.

Frank Long, Franklin/Hopkins County Dist. Atty., Martin E. Braddy, Asst. Dist. Atty., Sulphur Springs, for state.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Kevin Lewis, a/k/a Kevin Tyrone Lewis (Kevin) was one of three individuals who attacked Jack Torres-Diaz (Jack), a mentally retarded twenty-four-year-old male functioning at the level of a five- or six-year-old child. Kevin appeals from his conviction—and his resulting sentence of ten years' confinement—for intentionally and knowingly causing bodily injury to a disabled individual.

Jack typically spent his days pushing his customized wheelbarrow around Cooper, Texas, collecting used aluminum cans for recycling. To Jack, his pride-and-joy wheelbarrow was a Peterbilt truck, "Lucky." After all, Lucky sported two chrome smoke stacks, a CB radio, license plate, stickers, light, and a mud flap. While pushing Lucky in a city park on April 19, 2001, Jack was attacked and injured by three individuals who, before fleeing the scene, also damaged Lucky. Jack testified that, as he exited the park's bathroom, he was grabbed by the waist, thrown to his back, and kicked repeatedly. Recognizing Kevin as one of his attackers, Jack later provided both a description and Kevin's name to police.

Kevin contends on appeal the evidence was factually insufficient to support his conviction, the trial court erred by excluding certain evidence regarding Jack's character, and Kevin was entitled to a new trial based on newly discovered evidence. We affirm.

Sufficiency of Evidence

In his first point of error, Kevin contends the evidence was factually insufficient to support, beyond a reasonable doubt, Jack's identification of his assailant. Kevin essentially argues that, because of Jack's mental disability and testimonial inconsistencies, his identification of Kevin was inherently unreliable and his adverse testimony was against the great weight and preponderance of the evidence. Kevin maintains, in fact, that Jack's testimony is "of such an unreliable nature that it is impossible to even determine without reasonable doubt that there was actually an assault," let alone that Kevin was involved. We disagree.

Building on the foundation laid in Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), the Texas Court of Criminal Appeals stated in Jones v. State, 944 S.W.2d 642, 647-50 (Tex.Crim.App.1996), that the process of reviewing a claim of factual insufficiency begins with the assumption the evidence is legally sufficient. Courts of appeals must then consider all of the evidence in the record related to an appellant's challenge, not just the evidence supporting the verdict. Id. In doing so, "[t]he appellate court reviews the evidence weighed by the jury which tends to prove the existence of the elemental fact in dispute, and compares it to the evidence which tends to disprove that fact." Jones, 944 S.W.2d at 647. The reviewing court may disagree with the jury's determination; "[h]owever, a factual sufficiency review must be appropriately deferential so as to avoid the appellate court's substituting its own judgment for that of the fact finder," avoiding substantial intrusion "upon the jury's role as the sole judge of the weight and credibility of witness testimony." Id. at 648 (citing Clewis, 922 S.W.2d at 133). Appellate courts, therefore, will only disturb a jury's verdict when it is so against the great weight and preponderance of the evidence as to be manifestly unjust, shocking to the conscience, or clearly demonstrative of bias. Id.

A determination of factual insufficiency may be reached in either of two ways: (1) when considered alone, evidence supporting the existence of a vital fact is factually too weak to support it; or (2) when balancing evidence supporting both positive and negative inferences, it is clear the jury's finding is against the great weight and preponderance of the evidence. Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Crim. App.2001). In other words,

the complete and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so 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).

Addressing separately the two methods of determining whether evidence supporting the jury's verdict was factually insufficient, we first direct our attention to Kevin's claim that the State's evidence was too weak to establish the identity element of the charged offense. As Jack was the only eyewitness, the State necessarily relied on his statements and testimony that Kevin was his principal assailant. It is well established that a conviction may be based on the testimony of a single eyewitness, Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App.1971); Pitte v. State, 102 S.W.3d 786, 794 (Tex.App.-Texarkana 2003, no pet.); however, Kevin contends no jury could have reasonably relied on Jack's factually inconsistent account of the attack or identification of his attacker.

Without directly raising the issue of Jack's competency at trial or on appeal, Kevin makes repeated references to Jack's mental retardation, suggesting that this, when viewed in conjunction with all of the evidence, diminishes his credibility to the point that it is simply too weak to support his identification of Kevin as his attacker. Kevin argues that even the testimony of those witnesses asked to offer an opinion about Jack's truthfulness qualified their appraisals of him as a truthful person by saying he also has a tendency to exaggerate and fantasize. Kevin's position is that this tendency to fantasize is only emphasized by Jack's own testimony that his so-called truck "is as real as she can be."

Taking Jack's mental retardation into account, however, the trial court required him to be qualified before he was permitted to testify for the State. It is well within the discretion of the trial court to determine a witness' competency, and the court's ruling on the matter will not be disturbed absent an abuse of discretion. Avila v. State, No. 74,142, 2003 WL 21513440, at *8, 2003 Tex.Crim.App. LEXIS 142, at *26 (Tex.Crim.App. July 2, 2003).

[T]here are three elements which must be considered in determining whether a witness is in fact competent to testify. The first is a capacity to observe intelligently at the time of the events in question. The other elements of capacity are recollection and narration, though the former is usually merged into the latter. The capacity to narrate involves on the one hand, both an ability to understand the questions asked and to frame intelligent answers and, on the other hand, a moral responsibility to tell the truth. If a person afflicted with a physical or mental disability possesses sufficient intelligence to receive correct impressions of events he sees, retains clear recollection of them and is able to communicate them through some means there is no reason for rejecting his testimony.

Watson v. State, 596 S.W.2d 867, 870-71 (Tex.Crim.App.1980) (citations omitted). Responding to the trial court's questioning, Jack provided his full name, testified he knew the difference between lying and telling the truth, answered correctly all of the court's hypothetical questions, and said he knew he had given an oath to tell the truth and someone who fails to tell the truth can get in serious trouble. The court, finding no reason to reject his testimony, allowed the trial to proceed.

Kevin focuses the greater part of his argument on Jack's inconsistent statements throughout the process of identifying his attacker-including discrepancies in Jack's initial complaint, statements to his guardians and friends, and identification of Kevin in a photographic lineup and at trial. He notes, for example, that in Jack's initial complaint two days after the assault, he provided police with the name "Kevin Lewis" and described Kevin as having dreadlocks and green eyes; at trial, Jack testified that Kevin was known to him only as "K.T.," that he was unable to describe dreadlocks, and that Kevin's eyes were brown. Kevin also points to the fact that, although earlier testimony by law enforcement personnel indicated Jack both identified Kevin in a photographic lineup and signed his initials next to Kevin's photograph, Jack agreed that he identified Kevin in the photographic lineup, but denied having signed his initials, claiming that someone else must have done so.

Regardless of any inconsistent statements as to the details of the offense, such discrepancies reflect on a witness' credibility, a matter singularly within the purview of the fact-finder. The jury heard evidence as to Jack's mental retardation, the process by which he identified Kevin, and evidence suggesting numerous flaws and inconsistencies with Jack's identification of Kevin. The jury, having had the opportunity to observe firsthand Jack's demeanor, as well as his ability to respond to questioning and to recall information about his assault, ultimately chose to accept his testimony over the evidence presented by the defense. "The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony" and are entitled, therefore, to believe or disbelieve all or any part of a witness' testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981). After carefully reviewing all of the evidence both for and against the...

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