Ward v. State

• Decision Date: 23 May 2001
• Docket Number: No. 10-99-252-CR,10-99-252-CR
• Citation: 48 S.W.3d 383
• Parties: (Tex.App.-Waco 2001) NATHANIEL WARD, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 383

48 S.W.3d 383 (Tex.App.-Waco 2001)

NATHANIEL WARD, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-99-252-CR

Court of Appeals of Texas, Waco.

May 23, 2001

From the 54th District Court McLennan County, Texas Trial Court # 98-923-C

Before Chief Justice Davis, Justice Vance, and Justice Gray

OPINION

BILL VANCE, Justice

Nathaniel Ward was sentenced to forty-five years in prison after a jury trial for aggravated robbery. Three eyewitnesses identified him as the robber. However, a fourth eyewitness identified someone else, and four co-workers testified that Ward was at work on the day of the robbery. Ward asserts on appeal that the evidence is factually insufficient to sustain the conviction.¹ Finding that the proof of guilt is so greatly outweighed by contrary evidence as to be clearly wrong and unjust, we will reverse the judgment and remand the cause for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

Around 1:00 or 1:30 p.m., delivery-truck drivers Daniel Phillips and Joseph Bailey arrived at a convenience store to deliver beer. (Phillips testified 1:30, and Bailey testified 1:00.) Within ten minutes Bailey noticed a black male outside the store who was wearing a tan sports coat with no shirt, dark pants, and a plastic cap on his head with a baseball cap over it. Bailey later described the man as weighing about 110 pounds. At one point the man appeared to be using the area behind the store as a restroom. Then the man apparently pretended to use the outside telephone, because Bailey observed him holding the receiver but not talking. Bailey observed the man up close a total of fifteen to twenty seconds as Bailey went in and out of the store with beer. About 1:50 p.m., Pamela Jones, a patient of Mental Health and Mental Retardation ("MHMR") who worked at the store,² arrived for her shift and also saw the black male. He was standing at the telephone, and he waved at her. She had seen him in the store twice before. She said she stopped and stared at him because he was wearing a sports coat on a hot day, and had on a plastic cap with a baseball cap over it. Once Phillips was alone in the parking lot, the black male, whom Phillips had not previously noticed, approached Phillips from behind and robbed him at gunpoint, taking twenty-seven hundred and fifty dollars. Phillips saw the man for three seconds, part of which was spent looking at the gun. He accurately described the man's clothing, and said the man weighed about 160 pounds.

The robber left the scene on foot. While he was leaving, customer Bryan Bibles pulled up in his vehicle. Bibles was an Army veteran who worked out of the Veterans Hospital as a National Service Officer for disabled veterans. Bibles testified he saw a man running away from the store. The man was wearing a scraggly brown coat, and had on a knit cap over an Afro hair style. Bibles testified he recognized the man to be someone he knew as "Nate" with whom he went to high school. He did not know the man's last name, although "Nate" was later identified to him as Nathaniel Lewis. Bibles had given Lewis a ride a month and a half earlier and dropped him off where he believed Lewis lived, a few streets from the convenience store where the robbery occurred. Bibles testified he told police he saw "Nate" running from the store. He also told police of another store where Lewis often hung out. Bibles would see Lewis there, and Lewis would ask for money to buy beer. By coincidence, Bibles also knew Ward with whom he also went to high school, but whom he had seen only two or three times in the last several years. When Bibles read in the paper Ward had been arrested, he called police to inform them they had the wrong man. Bibles testified at trial that Ward was not the man he saw at the scene of the robbery.

When Officer Torres arrived at the scene, he somehow came up with Ward's name as the robber. Torres testified Bibles told him Bibles saw Ward running from the scene. Bibles testified he told Torres he saw "Nate" running from the scene, meaning Nathaniel Lewis.³

Officer January put together a photographic lineup with Ward's picture,⁴ and after Bibles's call, he put together a second lineup by simply substituting Lewis's picture for Ward's. January showed the lineup with Ward's picture to Phillips, Bailey, and Jones, who selected Ward. He testified he later showed the lineup with Lewis's picture to only Phillips and Jones who did not select anyone. However, Bailey testified that January showed him and Phillips two separate lineups at the same time, four days after the robbery. January contradicted Bailey's testimony, claiming that there was an eleven-day interval between showings. Jones testified she was awakened by January four days after the robbery. She said: He "showed me some pictures. . . . He said do I see the person, and I say, yes, sir. And I pointed. And he showed me some other different kind of pictures, different, row after row. He asked me do I see him, and I say yes, sir. Can you point him out. I say yes, sir. I say yes, sir. Can you sign and date it. I say yes, sir. And I went back to sleep."

These three witnesses also identified Ward at trial. Phillips and Bailey emphasized a small mark on Ward's left temple. Both omitted this detail from their written statements to police. In their interviews with police, they sometimes described the mark as a scar and sometimes as a mole.⁵ Jones, who got the best and longest look at the robber, never mentioned the mark.

Four of Ward's co-workers testified at trial that he was at work on the day of the robbery. None of them were friends or relatives of his. Ed Degrate, the supervisor, sponsored Ward's time card which was admitted into evidence to show Ward worked from 6:51 a.m. to 3:16 p.m., and took lunch from 12:04 p.m. to 12:96 p.m.⁶ Degrate said the parking lot where Ward parked was two or three hundred yards from the building. He also said workers who tried to sneak out during the work day often got caught. Gussie Miles saw Ward finishing his lunch in the break room around 1:00 p.m. They had a brief conversation about a revival going on at her church, and Ward said he wanted to attend. Lisa Childers performed a quality check of materials at Ward's work station about 1:30 and Ward was there. She wrote the time down on a record sheet. Dwayne Norvell, who had to be subpoenaed by the defense because he did not want to get involved, was a machine repairman at Ward's workplace. He testified that between 1:00 and 2:45 he repaired the machine next to the one Ward operated everyday, and that Ward assisted him during the entire time by periodically sending items down a conveyor belt between the machines; the items were wrapped by the machine Norvell was working on. He and Ward were ten to fifteen feet apart.⁷ Finally, there was testimony that it would take at least five minutes for a person at Ward's workplace to drive to the convenience store.

The jury found Ward guilty. At punishment the jury learned that Ward, in his late thirties, had been married for ten years and had three children -- one in elementary school, a second about to graduate high school, and a third about to begin college. His wife was a case worker with MHMR and also attended college. Ward was convicted in 1986 on felony charges of cocaine and marijuana possession, for which he served concurrent two-year sentences. Since his release he had been employed full-time, sometimes working two jobs. When arrested for this robbery, he was in possession of a small amount of marijuana. The jury assessed punishment at forty-five years in prison.

STANDARD OF REVIEW

The standard of review for a factual sufficiency claim, which is derived from Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996),⁸ is set forth in Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000).⁹ The reviewing court "asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously 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" "to the extent that the [finding of guilt] is clearly wrong and manifestly unjust." Id. at 11. The court does not view the evidence through the prism of "in the light most favorable to the prosecution." Johnson, 23 S.W.3d at 7 (quoting Clewis, 922 S.W.2d at 129). "The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact." Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The appellate court "does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . . " Johnson, 23 S.W.3d at 7 (quoting William Powers and Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 519 (1991)). "In conducting its factual sufficiency review, an appellate court reviews the fact finder's weighing of the evidence and is authorized to disagree with the fact finder's determination." Johnson, 23 S.W.3d at 7 (quoting Clewis, 922 S.W.2d at 133).

A review of a claim of factual insufficiency of the evidence requires an understanding of the applicable burden of proof at trial. The Supreme Court considered "proof beyond a reasonable doubt" in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The Court for the first time held explicitly that the Fourteenth Amendment Due Process Clause of the United States Constitution "protects the accused [in a criminal case] against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id., 397 U.S. at 364, 90 S.Ct. at 1073. The Court described proof beyond a...