                                                                ACCEPTED
                                                            01-15-00483-CR
                                                 FIRST COURT OF APPEALS
                                                         HOUSTON, TEXAS
                                                       11/3/2015 3:35:52 PM
                                                      CHRISTOPHER PRINE
   No. 01-15-00483-CR                                                CLERK
             In the
      Court of Appeals
            For the
                                          FILED IN
    First District of Texas        1st COURT OF APPEALS
          At Houston                   HOUSTON, TEXAS
                                   11/3/2015 3:35:52 PM
 
                                   CHRISTOPHER A. PRINE
         No. 1439664                       Clerk
 In the 182nd District Court
  Of Harris County, Texas
 
  WILLIE MCDOWELL
           Appellant
               V.
 THE STATE OF TEXAS
           Appellee
 

STATE’S APPELLATE BRIEF
  

                         DEVON ANDERSON
                         District Attorney
                         Harris County, Texas

                         DAN MCCRORY
                         Assistant District Attorney
                         Harris County, Texas
                         mccrory_daniel@dao.hctx.net

                         ANDREA HANDLEY
                         AMANDA PETROFF
                         Assistant District Attorneys
                         Harris County, Texas

                         1201 Franklin, Suite 600
                         Houston, Texas 77002
                         Tel.: 713/274-5826
                         FAX No.: 713/755-5809

                         Counsel for Appellee

ORAL ARGUMENT WAIVED
        STATEMENT REGARDING ORAL ARGUMENT


Pursuant to TEX. R. APP. P. 39.7, the State waives oral argument.




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                                        TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ..................................................i

INDEX OF AUTHORITIES .................................................................................... iii

STATEMENT OF THE CASE................................................................................... 1

STATEMENT OF FACTS ......................................................................................... 1

SUMMARY OF THE ARGUMENT ......................................................................... 1

REPLY TO POINT OF ERROR ONE ....................................................................... 2

CONCLUSION .......................................................................................................... 6

CERTIFICATE OF SERVICE ................................................................................... 7

CERTIFICATE OF COMPLIANCE ......................................................................... 7




                                                          ii
                                     INDEX OF AUTHORITIES


CASES

Anderson v. State,
  416 S.W.3d 884 (Tex. Crim. App. 2013) ................................................................3

Bradley v. State,
  359 S.W.3d 912 (Tex. App.--Houston [14th Dist.] 2012, pet. ref’d) ............ 3, 4, 5

Brooks v. State,
  323 S.W.3d 893 (Tex. Crim. App. 2010) ................................................................3

Callahan v. State,
  502 S.W.2d 3 (Tex. Crim. App. 1973) ....................................................................5

Clayton v. State,
  235 S.W.3d 772 (Tex. Crim. App. 2007) ................................................................4
Gear v. State,
 340 S.W.3d 743 (Tex. Crim. App. 2011) ................................................................2

Griego v. State,
  337 S.W.3d 902 (Tex. Crim. App. 2011) ................................................................3
Harmon v. State,
 167 S.W.3d 610 (Tex. App.--Houston [14th Dist.] 2005, pet. ref’d) .....................3
Herrero v. State,
 124 S.W.3d 827 (Tex. App.--Houston [14th Dist.] 2003, no pet.) .........................4
Jackson v. Virginia,
  443 U.S. 307 (1979) ...............................................................................................2

Laster v. State,
  275 S.W.3d 512 (Tex. Crim. App. 2009)................................................................3

Madden v. State,
 799 S.W.2d 683 (Tex. Crim. App. 1990) ................................................................2



                                                         iii
Sharp v. State,
  707 S.W.2d 611 (Tex. Crim. App. 1986) ................................................................4

RULES

TEX. R. APP. P. 39.7 .................................................................................................... i




                                                            iv
TO THE HONORABLE COURT OF APPEALS:


                         STATEMENT OF THE CASE

      Appellant was charged by indictment with the offense of aggravated

robbery. (CR 8). After the jury found appellant guilty of the charged offense, the

trial judge assessed punishment at 35-years confinement. (CR 237).


                            STATEMENT OF FACTS

      The complainant, Itashia Corbin, was at home with her one-year-old

daughter when she answered a knock at her front door. (RR III 19-22, 51). Once

she opened the door, appellant and another man “bum rushed” into her home. (RR

III 22-24).   Both men were carrying guns. (RR III 23). Appellant held the

complainant at gunpoint while his partner went “through the house” and gathered

items such as an Xbox, shoes, and cash. (RR III 25-26). After “they grabbed what

they could,” appellant and his accomplice left with the loot. (RR III 26-27). The

complainant chased appellant, prompting him to fire his gun in the air. (RR III 27).


                        SUMMARY OF THE ARGUMENT

      Since the testimony of a single eyewitness is sufficient to support a

conviction and the complainant’s testimony establishes each element of the

charged offense, the evidence is sufficient to support appellant’s conviction.

Furthermore, any inconsistencies in the complainant’s testimony do not undermine
the sufficiency of the evidence because the jury is presumed to have resolved any

inconsistencies in favor of the verdict.


                       REPLY TO POINT OF ERROR ONE

      In his sole point of error, appellant contends the trial judge erred by denying

his motion for an instructed verdict. (RR III 202). Appellant argues he was entitled

to an instructed verdict because the evidence is insufficient to support his

conviction for aggravated robbery. Regarding his insufficiency claim, appellant

maintains the complainant was not credible due to inconsistencies in her testimony.

      A challenge to a trial judge’s ruling on a motion for an instructed for verdict

is actually a challenge to the sufficiency of the evidence to support the conviction.

Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). In determining

whether the evidence is sufficient to support a conviction, a reviewing court must

consider all the evidence in the light most favorable to the verdict and determine

whether, based on that evidence and reasonable inferences therefrom, any rational

factfinder could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Gear v. State,

340 S.W.3d 743, 746 (Tex. Crim. App. 2011). This standard gives full play to the

responsibility of the factfinder to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Gear, 340 S.W.3d at 746 (quoting Jackson, 443 U.S. at 319). When the record


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supports conflicting inferences, the reviewing court presumes the jury resolved the

conflicts in favor of the State and defers to that determination. Anderson v. State,

416 S.W.3d 884, 888 (Tex. Crim. App. 2013). This standard applies equally to

circumstantial and direct evidence. Laster v. State, 275 S.W.3d 512, 517-18 (Tex.

Crim. App. 2009).1

       The complainant testified that appellant forced his way into her home and

held a gun on her, causing her to fear death, while appellant’s accomplice stole her

property. (RR III 19-26). She stated she was positive that appellant is “the man

that came into [her] home and took [her] property and held [her] at gunpoint.” (RR

III 77). The complainant’s testimony establishes all of the elements of the offense

as alleged in the indictment. (CR 9).

       A robbery victim’s testimony, standing alone, is sufficient to support a

conviction. Bradley v. State, 359 S.W.3d 912, 918 (Tex. App.--Houston [14th

Dist.] 2012, pet. ref’d); Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.--

Houston [14th Dist.] 2005, pet. ref’d). Therefore, the complainant’s testimony,

which alone proves the alleged offense, is sufficient to support appellant’s

conviction. Id.



1
        Appellant asks this Court to conduct a legal and factual sufficiency review, employing
different standards for the two proposed analyses. (appellant’s brief, pp. 9-10). It is well settled,
however, that the Jackson v. Virginia standard is the only standard that an appellate court should
apply in determining the sufficiency of the evidence. Griego v. State, 337 S.W.3d 902, 903
(Tex. Crim. App. 2011) (citing Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)).

                                                 3
      Furthermore, the complainant’s identification of appellant as the robber was

corroborated by Shavondia Smith, who testified that, on the day of the robbery,

appellant had custody of her Explorer, which is the vehicle in which the robber

loaded the stolen items and attempted to flee after his commission of the offense.

(RR III 30-31, 35-38, 87-92, 118-119, 127-129).        Such corroboration further

strengthens the sufficiency of the evidence.

      Nevertheless, appellant argues the complainant was not credible because of

certain inconsistencies in her testimony. This claim fails to alter the outcome of

the sufficiency review because inconsistencies in testimony do not render the

evidence insufficient. Herrero v. State, 124 S.W.3d 827, 833 (Tex. App.--Houston

[14th Dist.] 2003, no pet.). Regarding inconsistent testimony, the jury was entitled

to determine the credibility of the witnesses and the weight to be given to their

testimony.   Id. As the sole factfinder, the jury was authorized to believe or

disbelieve any portion of any witness’s testimony. Sharp v. State, 707 S.W.2d 611,

614 (Tex. Crim. App. 1986). It is the jury’s duty to resolve any conflicts in the

testimony. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Bradley,

359 S.W.3d at 917. Any inconsistencies in the testimony should be resolved in

favor of the jury’s verdict in a sufficiency review. Herrero, 124 S.W.3d at 833.

Therefore, the evidence is sufficient to support appellant’s conviction despite any

inconsistencies in the complainant’s testimony. Id.



                                         4
      Appellant also suggests the evidence is insufficient because his fingerprints

were not found on the gun he used during the robbery or on the Explorer he

attempted to operate after the robbery. (RR III 183-186). The lack of fingerprints

on the gun is not compelling because the investigating officer testified that the

gun’s variant texture was not conducive to holding a fingerprint. (RR III 185-187).

Regarding the Explorer, the officer testified that it is “very rare” to discover

fingerprints at a crime scene. (RR III 183). Therefore, the absence of fingerprints

does not raise a reasonable doubt about appellant’s guilt. Callahan v. State, 502

S.W.2d 3, 6 (Tex. Crim. App. 1973) (evidence sufficient to support burglary

conviction despite lack of fingerprint evidence); Bradley, 359 S.W.3d at 917 (jury

may find guilt without physical evidence linking the accused to the crime).

      Accordingly, despite appellant’s claims, the complainant’s testimony,

standing alone, remains sufficient to support appellant’s conviction. Point of error

one is meritless and should be overruled.




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                                  CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas

                                                 /s/ Dan McCrory
                                                 DAN McCRORY
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 (713) 274-5826
                                                 TBC No. 13489950
                                                 mccrory_daniel@dao.hctx.net




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                         CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been sent to the

following email address via TexFile:

      Hattie Sewell Shannon
      Attorney at Law
      Hattieshannon52@yahoo.com

                                                /s/ Dan McCrory
                                                DAN McCRORY
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 274-5826
                                                TBC No. 13489950



                      CERTIFICATE OF COMPLIANCE

       The undersigned attorney certifies that this computer-generated document
has a word count of 995 words, based upon the representation provided by the
word processing program that was used to create the document.


                                                /s/ Dan McCrory
                                                DAN McCRORY
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 274-5826
                                                TBC No. 13489950
Date: 11/3/2015



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