Stone v. State

635 S.W.3d 763

Prince Warren STONE, Appellant

v.The STATE of Texas, Appellee

NO. 14-19-00937-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed October 26, 2021

Discretionary Review Refused December 15, 2021

Sharon E. Slopis, Houston, for Appellant.

Bridget Holloway, Houston, for Appellee.

Panel consists of Justices Wise, Bourliot, and Wilson.

Ken Wise, Justice

A jury found appellant guilty of aggravated robbery, and the trial court sentenced him to twenty-five years’ imprisonment. Appellant contends that the evidence is insufficient to support his conviction, a new trial is required because a missing portion of the record is necessary to the appeal, and the trial court erred by admitting evidence. We affirm.

I. SUFFICIENCY OF THE EVIDENCE

We first address appellant's second issue challenging the sufficiency of the evidence to support his conviction. See, e.g., Price v. State , 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Appellant argues that the State failed to prove his identity as the perpetrator of an aggravated robbery.

A. Standard of Review and Legal Principles

When reviewing the sufficiency of the evidence, we consider all of the admitted evidence in the light most favorable to the verdict to determine whether a rational jury could find the essential elements of the offense beyond a reasonable doubt. Stahmann v. State , 602 S.W.3d 573, 577 (Tex. Crim. App. 2020). The jury is the sole judge of the witnesses’ credibility and the weight to be given to their testimony. Id. Juries may draw any reasonable inference from the facts so long as each inference is supported by the evidence. Id.

To sustain a conviction for aggravated robbery, as pleaded in this case, the State had to prove that appellant, in the course of committing a theft from the complainant, intentionally or knowingly threatened and placed the complainant in fear of imminent bodily injury or death, and appellant used or exhibited a deadly weapon. See Tex. Penal Code §§ 29.02, 29.03(a)(2)(A). The State must prove that the accused is the person who committed the crime charged. Bin Fang v. State , 544 S.W.3d 923, 927–28 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Identity may be proven through direct or circumstantial evidence, and through inferences. Id. ; see also Balderas v. State , 517 S.W.3d 756, 766 (Tex. Crim. App. 2016).

B. Evidence

The complainant was working at the customer service booth of a Kroger grocery store in Spring Branch. A man approached, lifted his shirt to show a semiautomatic handgun in his waistband, and demanded money. The robber was wearing a hat and sunglasses. A surveillance video of the incident showed the robber's body and the lower half of his face. He was a heavyset older white man with white or gray hair. The complainant was unable to identify appellant in a photo spread; the complainant selected another man's picture but told the administering police officer that he "wasn't too sure" and was only "20 percent, 30 percent" sure. The complainant testified that he was scared, and his attention was drawn to the handgun

A witness outside of the Kroger saw a white or Hispanic man walking fast down a breezeway away from the Kroger. The witness saw the man take his shirt off and put on another very quickly. The witness felt like "something happened." The witness did not see the man's face but noticed the man had a full back tattoo. The jury saw a photograph of appellant's back, which was covered in tattoos. The witness noticed the man drive off in a white work truck that had lettering on it. The witness took a picture of the license plate and provided it to police.

A police officer determined that the truck was owned by a drilling company in Katy. The president of the company testified that the initials of the company, DAS, were on its white pickup trucks. A police officer showed the president a photograph of the man from the surveillance video, and the president said the man looked like appellant. Appellant worked for the company, lived in employee housing, and had access to the trucks. The president testified that no one else who worked for the company looked like appellant.

The State adduced evidence of an extraneous robbery from a few months prior that was similar to the charged offense. An employee at another Kroger in Jersey Village, near Spring Branch, testified that she was working at the customer service desk when an older white man approached her. He lifted his shirt to show a semiautomatic handgun in his waistband, and he demanded money. The robber was heavyset, wearing a hat and sunglasses, and had white or gray hair. A surveillance video of the incident showed the robber's body and the lower half of his face. The employee identified appellant as the robber in a photo spread and in court.

C. Analysis

The complainant's failure to identify appellant as the robber does not render the evidence insufficient because there is other evidence to support the jury's finding. See Conyers v. State , 864 S.W.2d 739, 740 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd). First, the jury was able to view appellant's appearance in court and compare his likeness to the surveillance video of the robbery. Second, appellant's employer identified appellant as the man in the surveillance video. Third, although the complainant was unable to identify appellant, the complainant testified that he was scared and his attention was drawn to the handgun. See id. at 741 (sufficient evidence to prove identity for aggravated robbery although the complainant could not identify the robber because (1) the jury could compare photos from surveillance video to the physical appearance of the defendant; (2) the defendant's employer identified the defendant as the robber from the surveillance video pictures; and (3) the complainant testified that he had fixated on the robber's shotgun). Moreover, the jury could have considered the evidence of the similar extraneous offense to prove appellant's identity in the charged offense. See Segundo v. State , 270 S.W.3d 79, 88 (Tex. Crim. App. 2008) ("One of the main rationales for admitting extraneous-offense evidence is to prove the identity of the offender."). Considering all of the evidence, a rational jury could have concluded beyond a reasonable doubt that appellant was the perpetrator of the aggravated robbery. See Conyers , 864 S.W.2d at 741.

Appellant's second issue is overruled.

II. MISSING RECORD

In his seventh issue, appellant contends that he is entitled to a new trial because a missing portion of the record is necessary to the appeal's resolution. See Tex. R. App. P. 34.6(f)(2) (an appellant is entitled to a new trial if, among other things, "without the appellant's fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed"). Appellant contends that a missing exhibit—the record from another robbery case in which appellant was acquitted—relates to the admissibility of evidence concerning the extraneous offense.¹

The trial court indicated that it could consider the trial transcript of appellant's prior case to determine if the State was estopped from adducing evidence of the extraneous offense in this case. Appellant's trial counsel offered to provide the record to the court: "I can submit to you a copy of the record." But appellant did not offer the record as an exhibit or otherwise request its inclusion in the record for this case. Thus, it cannot be supplemented. See In re Marriage of Harrison , 557 S.W.3d 99, 106 n.2 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (when certain exhibits were "exchanged and discussed" between the parties but none were formally identified, offered, or admitted by the court, the record could not be supplemented with them because they were not part of the record). Appellant's reliance on Osuch v. State is misplaced because in that case the missing portion of the record was an exhibit that had been admitted during trial. See 976 S.W.2d 810, 810 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Appellant has not shown that any part of the record in this case is missing or lost.

Appellant's seventh issue is overruled.

III. ADMISSION OF EVIDENCE

In his first, third, fourth, fifth, and sixth issues, appellant complains about the admission of evidence concerning a photograph of his back tattoos and the extraneous offense.

A. Standards of Review

We review a trial court's decision to admit evidence for an abuse of discretion. Henley v. State , 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial court abuses its discretion if the decision falls outside the zone of reasonable disagreement—that is, the ruling was "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Id. at 83 (quotation omitted). We may not substitute our own decision for that of the trial court. Gonzalez v. State , 544 S.W.3d 363, 370 (Tex. Crim. App. 2018).

A trial court's ruling on a motion to suppress, like any ruling on the admission of evidence, is subject to review on appeal for an abuse of discretion. Amador v. State , 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) ; see also Black v. State , 362 S.W.3d 626, 633 (Tex. Crim. App. 2012) ("In essence, a pretrial motion to suppress evidence is nothing more than a specialized objection to the admissibility of that evidence." (quotation omitted)). The ruling will be upheld if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Amador , 275 S.W.3d at 878–79. At a suppression hearing, the trial court acts as a fact finder and may make reasonable inference from the evidence and may believe or disbelieve all or any part of a witness's testimony. Id. at 878.

B. Photograph of Appellant's Back Tattoos

In his third and fourth issues, which he argues together, appellant contends that the trial court erred by admitting into evidence a photograph of appellant's back tattoos because the...