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
126 S.W.3d 572
Kevin LEWIS, a/k/a Kevin Tyrone Lewis, Appellant
The STATE of Texas, Appellee.
No. 06-02-00106-CR.
Court of Appeals of Texas, Texarkana.
Submitted December 18, 2003.
Decided January 7, 2004.

[126 S.W.3d 574]

Noemi A. Collie, Dallas, for appellant.

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



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

126 S.W.3d 575

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

126 S.W.3d 576

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...

To continue reading

Request your trial
30 cases
  • People v. Washington, 03CA1895.
    • United States
    • Court of Appeals of Colorado
    • May 31, 2007
    ...352 N.C. 1, 530 S.E.2d 807, 820 (2000) (same); State v. Barton, 71 Ohio App.3d 455, 594 N.E.2d 702, 712 (1991) (same); Lewis v. State, 126 S.W.3d 572, 578-79 (Tex.App.2004) IV. Refusal to Instruct the Jury that Defendant was Mildly Mentally Retarded Defendant next argues that the trial cour......
  • Abram v. State, 10-16-00348-CR
    • United States
    • Court of Appeals of Texas
    • December 4, 2019
    ...evidence are not favored and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim. App. 1987); Lewis v. State, 126 S.W.3d 572, 579 (Tex. App.—Texarkana 2004, pet. ref'd). We review a trial judge's denial of a motion for new trial under an abuse of discretion standard......
  • Davis v. State, 01-03-00801-CR.
    • United States
    • Supreme Court of Texas
    • April 7, 2005
    ...conviction may be based on the testimony of a single eyewitness. Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App.1971); Lewis v. State, 126 S.W.3d 572, 575 (Tex.App.-Texarkana 2004, pet. ref'd). The determination of what weight to give testimonial evidence is within the sole province of t......
  • Franklin v. State
    • United States
    • Court of Appeals of Texas
    • March 10, 2015
    ...have proved through cross-examination of an adverse witness, the issue has not been preserved for appellate review.’ ” Lewis v. State, 126 S.W.3d 572, 579 (Tex.App.–Texarkana 2004, pet. ref'd) (quoting Jenkins v. State, 948 S.W.2d 769, 775 (Tex.App.–San Antonio 1997, pet. ref'd) ). It is un......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT