                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00131-CR


ANTHONY J. WHITE                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1356983D

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      A jury convicted Appellant Anthony J. White of the offense of robbery

causing bodily injury. See Tex. Penal Code Ann. § 29.02(a)(1) (West 2011).

After White pleaded true to the habitual offender notice, the trial court sentenced

him to forty years’ confinement. In two issues, White argues that the trial court


      1
       See Tex. R. App. P. 47.4.
erred by denying his challenges for cause to four potential jurors and that the

evidence is insufficient to support his conviction. We will affirm.

                             II. FACTUAL BACKGROUND

      On the night of January 24, 2014, Joann Ayo was walking from a bus stop

toward her home after finishing work. While she was walking, she noticed a van

driving with its lights off. The van passed her, made a U-turn, and then passed

her a second time. The van then stopped, and a man exited and started running

toward her. As the man got closer, he put a hood over his head. When the man

reached Ayo, he attempted to grab the purse out of her hands, and told her,

“Give it to me, give it to me.” As the two were struggling for control of Ayo’s

purse, the man pushed Ayo to the ground.            Ayo landed on her right hand,

causing it to be injured. The man eventually was able to wrest the purse away

from Ayo, and he went back to the van and drove away.

      Ayo called 911 immediately after the man left, placing the call at 10:38

p.m. Ayo described the robber as a black male with short hair in his twenties or

thirties. She told authorities that he was wearing a black hoodie and black pants.

She described the van he was driving as light gray or beige.2           At trial, Ayo

described the man as being “tall” but also stated that he was probably “[f]ive-six,

five-seven, something like that.”




      2
       At trial, Ayo testified that the van was “either tan or gray.”


                                          2
      Officer Alec Wiseman, of the Fort Worth Police Department, was

dispatched to the robbery call, and he and his partner began canvassing the area

around the crime scene looking for the suspect’s vehicle. At approximately 10:50

p.m.—twelve minutes after Ayo had called 911—Officer Wiseman observed a

van approximately half a mile from where the robbery took place that matched

the general description of the suspect’s vehicle, and he observed a black male—

later identified as White—sitting in the driver’s seat of the van.

      As Officer Wiseman approached the van, he saw White reaching down

toward the rear floorboard. Officer Wiseman shined his flashlight toward the area

White was reaching and saw cash lying on the floorboard and a glove partially

covering the cash. Officer Wiseman also saw a purse—later identified as Ayo’s

stolen purse—on the console between the driver’s seat and the passenger’s

seat. White told Officer Wiseman that he had been looking through dumpsters in

the area and had found Ayo’s purse in one of the dumpsters.3 Ayo’s purse was

ultimately recovered, along with $66.00 in cash.

      When apprehended, White was wearing a blue hoodie and black pants.

He was also wearing a black do-rag that covered his long black hair. The van

White was driving was—after being viewed in good lighting—determined to be

silver, although Officer Wiseman testified that the van was “very dirty” and that he



      3
       Officer Wiseman testified that White’s van was parked “pretty far away”
from any dumpsters.


                                          3
believed it was tan when he first approached it. White was thirty-seven at the

time of his arrest and measured five feet, nine inches tall.

      The day after the robbery, Detective Andre Smith, who was leading the

investigation into the robbery, showed Ayo a photo lineup containing photos of

White and five other individuals. Ayo could not identify any of the six individuals

in the lineup as the robber. When showed White’s photo and asked whether he

was the man who robbed her, Ayo responded, “That’s not him, unless he had a

haircut.” She later testified that she had not expected to recognize the robber in

the lineup because the hood had obscured his face and because it was dark

outside at the time of the robbery.

                       III. WHITE’S CHALLENGES FOR CAUSE

      In his first issue, White argues that the trial court erred by denying his

challenges for cause to four potential jurors.

                             A. Standard of Review

      When reviewing a trial court’s decision to deny a challenge for cause, we

look to the entire record to determine whether there is sufficient evidence to

support the trial court’s ruling and reverse only for a clear abuse of discretion.

Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010), cert. denied, 132 S.

Ct. 128 (2011); Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002).

Because the trial judge is in the best position to evaluate a prospective juror’s

demeanor and responses, we review a trial court’s ruling on a challenge for

cause with considerable deference. Gardner v. State, 306 S.W.3d 274, 295–96


                                          4
(Tex. Crim. App. 2009), cert. denied, 562 U.S. 850 (2010); Burks v. State, 876

S.W.2d 877, 893 (Tex. Crim. App. 1994). We accord particular deference to a

trial court’s decision when a prospective juror’s answers concerning his ability to

follow the law are vacillating, equivocating, ambiguous, unclear, or contradictory.

Gardner, 306 S.W.3d at 295; Moore v. State, 999 S.W.2d 385, 400, 407 (Tex.

Crim. App. 1999), cert. denied, 530 U.S. 1216 (2000).

                    B. Challenges to Potential Jurors 10 and 14

         During voir dire, White’s counsel asked the jury panel to rank the

believability of police witnesses on a one-to-five scale. White’s counsel told the

panel:

                  So what we’re going to do is you’re going to give me a
         number, one to five. And one is, I don’t believe anything police
         officers say, they all lie, I can’t trust them, don’t believe them at
         all . . . . And [this is] what number five is. You know, I—I know a lot
         of police officers, even if I don’t know them, I just think that they’re
         the most trustworthy people, and you know, if they say something,
         it’s going to be the truth. And then three would just kind of be a lot of
         them lie, a lot of them don’t lie. And then two and four are kind of
         close to each end.

Potential jurors 10 and 14—like many other members on the panel—gave an

answer of “four.”4 White requested that the trial court strike potential jurors 10




         4
       Each of the forty-five members of the panel were asked to give a number
based on the one-to-five scale proposed by White’s counsel. Two potential
jurors answered the question “five,” sixteen answered “four,” twenty-five
answered “three,” one answered “2.5,” and one answered “two.”


                                            5
and 14 for cause based on their bias in favor of police officers.5 The trial court

denied that request.      White then used two of his peremptory challenges on

potential jurors 10 and 14, exhausted all of his peremptory challenges, identified

jurors that he would have struck, and requested additional strikes. As the trial

court denied his request for additional strikes and objectionable jurors sat on the

jury, White has preserved his complaint for review. See Davis, 329 S.W.3d at

807 (setting out steps a party must take in order to preserve error for a trial

court’s denial of a challenge for cause).6

      White points us to Hernandez v. State to support his contention that the

trial court erred by not striking potential jurors 10 and 14 for cause. 563 S.W.2d

947 (Tex. Crim. App. 1978). In that case, the defense attorney asked a potential

juror if she believed that police officers would not lie on the witness stand. Id. at

950. The following exchange occurred:

      Q: I am not talking about making a mistake, I am talking about
         telling a knowing willing falsehood from the witness stand.

      A:   I don’t think a police officer would tell a falsehood from the
           witness stand.

      Q:   Under any circumstances?

      A:   No, I don’t.

      5
       See Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (West 2006) (providing
that a juror may be challenged for cause when he “has a bias or prejudice in
favor or against the defendant”).
      6
      The State acknowledges that White has preserved his complaint for
appeal.


                                         6
Id. The court of criminal appeals held that the potential juror was challengeable

for cause because she could not impartially judge the credibility of police officers.

Id.

      In Jones v. State, the court of criminal appeals expounded on its opinion in

Hernandez. 982 S.W.2d 386, 389 (Tex. Crim. App. 1998), cert. denied, 528 U.S.

985 (1999). The court stated:

             In [Hernandez], the veniremember stated that she would
      always believe police officers who testified at trial. Our holding in
      Hernandez, however, must not be interpreted to mean that a
      veniremember is challengeable for cause simply because he would
      be more skeptical of a certain category of witness than of witnesses
      generally. What we meant in Hernandez was that litigants are
      entitled to jurors who will be genuinely open-minded and
      persuadable, with no extreme or absolute positions regarding the
      credibility of any witness. We could not have meant that jurors must
      be completely impartial and free of any trace of skepticism toward
      any category of witness. Complete impartiality cannot be realized as
      long as human beings are called upon to be jurors. No person
      sitting as a juror can completely remove his own experiences,
      beliefs, and values, however hard he may try.

Id.

      Echoing the sentiment in Jones, Texas courts have repeatedly held that

potential jurors are not challengeable for cause when they would slightly tend to

believe police officers more than others; rather, to be challengeable for cause,

potential jurors must have extreme or absolute positions with respect to the

credibility of police officers. See, e.g., Feldman, 71 S.W.3d at 747 (“Appellant is

entitled to jurors . . . with no extreme or absolute positions regarding the

credibility of any witness . . . . That Henry was simply more or less skeptical of a


                                         7
certain category of witness did not make him subject to a challenge for cause.”);

Ladd v. State, 3 S.W.3d 547, 559–60 (Tex. Crim. App. 1999) (“Veniremen are not

challengeable for cause simply because they would give certain classes of

witnesses a slight edge in terms of credibility . . . . Thus, McKay was not

challengeable for cause because he would tend to believe policemen and

doctors slightly more than others.”), cert. denied, 529 U.S. 1070 (2000); Simpson

v. State, No. 01-12-00380-CR, 2014 WL 2767126, at *4 (Tex. App.—Houston

[1st Dist.] June 17, 2014, pet. ref’d) (mem. op., not designated for publication) (“a

potential juror who says that he would tend to believe a police officer more than

another witness may serve on a jury”).

      Here, neither potential juror 10 nor potential juror 14 was at the extreme

end of the range proposed by White’s trial counsel. Indeed, potential juror 14

qualified his answer: “I guess four, but I think with the recent events and media

attention, I would be kind of less trusting of police officers than I have been.”

Potential juror 14 went on to say, “I thought [police officers would] be more

credible than a person—you know, a witness that saw something. They may

also be not truthful.”

      As potential jurors 10 and 14 did not demonstrate extreme or absolute

positions regarding the credibility of police officers, but instead rated them a

“four”—i.e., a number between a neutral “three” and an absolute “five”—the trial

court did not abuse its discretion by denying White’s challenges for cause with




                                         8
respect to them. See Feldman, 71 S.W.3d at 747; Ladd, 3 S.W.3d at 559–60;

Jones, 982 S.W.2d at 389; Simpson, 2014 WL 2767126, at *4.

                     C. Challenges to Potential Jurors 17 and 31

      White also appeals from the trial court’s denial of his challenges for cause

to potential jurors 17 and 31.7 White argues that potential jurors 17 and 31

indicated that they would hold the State to a burden less than proof beyond a

reasonable doubt, and accordingly, they should have been struck for cause.8

      The following exchange took place between White’s counsel and potential

juror 17:

      Q:    So what you’re saying is that if the Prosecution proves their
            case maybe to the level of preponderance of the evidence
            where you think it’s more likely than not—

      A:    Right.

      Q:    —that he’s guilty but in your mind you’re not convinced beyond
            a reasonable doubt of his guilt, you would return a verdict of
            guilty?

      A:    I would.

      ...


      7
      White has preserved this complaint for review, as he used two of his
peremptory challenges on potential jurors 17 and 31, exhausted all of his
peremptory challenges, identified jurors that he would have struck, and
requested additional strikes. See Davis, 329 S.W.3d at 807.
      8
        See Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (providing that the
defense may challenge a juror for cause when he “has a bias or prejudice
against any of the law applicable to the case upon which the defense is entitled
to rely”).


                                         9
      Q:    So what you’re saying is that if you think that somebody is guilty
            but you’re not to that high burden that we put in our legal
            system, that beyond a reasonable doubt—

      A:    Right.

      Q:    —you would want to return a verdict of guilty?

      A:    Yes.

      White’s attorney then asked if there were any other potential jurors who

agreed with potential juror 17. Potential juror 31 indicated that she agreed with

potential juror 17. White’s counsel then asked potential juror 31, “So if you were

less sure than beyond a reasonable doubt but you’re thinking that he probably

did it, you would return a verdict of guilty?” Potential juror 31 answered, “Yes.”

      Potential jurors 17 and 31 were later brought in for additional questions.

See Feldman, 71 S.W.3d at 744 (“Before a prospective juror can be excused for

cause [for bias against the law applicable to the case], the law must be explained

to him and he must be asked whether he can follow that law regardless of his

personal views.”). The following exchange then took place between potential

juror 17 and the trial court:

      Q:     And the law is we don’t find people guilty unless the State’s
             proven the case beyond a reasonable doubt.

      A:     Okay. And that’s attainable.

      Q:     And if they haven’t proven it, are you still going to find that
             person guilty?

      A:     No. I’m going to listen to the evidence that’s presented.




                                         10
       The following exchange then took place between potential juror 31 and the

trial court:

       Q:      If you haven’t—if the case hasn’t been proven beyond a
               reasonable doubt and the Court instructs you that you must
               have proof beyond a reasonable doubt, and that’s defined by
               you—

       A:      Right.

       Q:      —but in your mind it hasn’t been proven beyond a reasonable
               doubt, are you still saying that since some evidence was
               produced, you’re going to find the Defendant guilty?

       A:      My answer’s no.

       Q:      Okay. So you understand the concept of a law is that the
               State must prove their case, each and every element, beyond
               a reasonable doubt?

       A:      I do.

       Q:      And if it fails to do so and that is the circumstance, what would
               be your conclusion under that scenario?

       A:      Not guilty.

       While potential jurors 17 and 31 made some initial statements indicating

that they would hold the State to a burden less than proof beyond a reasonable

doubt, they later agreed that they would find White not guilty if the State failed to

prove guilt beyond a reasonable doubt.9 Based on our review of the entire voir


       9
       Potential jurors 17 and 31 had earlier apparently indicated that they would
hold the State to its required burden of proof when White’s attorney globally
posed the following question to the jury panel:

       Q:      And the burden of proof. Like we said, unless you’re
               convinced of guilt beyond a reasonable doubt, what is your

                                          11
dire, we hold that the trial court did not abuse its discretion by denying White’s

challenges for cause to potential jurors 17 and 31. See Gardner, 306 S.W.3d at

295 (holding that when a potential juror vacillates or equivocates on his ability to

follow the law, the reviewing court must defer to the trial court); Moore, 999

S.W.2d at 400 (same). We overrule White’s first issue.

                        IV. SUFFICIENCY OF THE EVIDENCE

      In his second issue, White argues that the evidence presented at trial was

insufficient to support his conviction for robbery causing bodily injury.      White

focuses on some of the discrepancies between Ayo’s description of the robber

and his own appearance on the night he was arrested, as well as the fact that

she did not identify him as the robber during the photo lineup.

                             A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential


             verdict going to be? I’m going to ask everybody this at one
             time and just have everybody answer it.

      Prospective Jurors:       Not guilty.

      Q:     Try again. If after hearing all the evidence you’re not
             convinced of guilt beyond a reasonable doubt, what would
             your verdict be?

      Prospective Jurors:       Not guilty.




                                         12
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979).          This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

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

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446,

448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v.

State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder.           See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict.   Murray, 457 S.W.3d at 448.          We must presume that the factfinder

resolved any conflicting inferences in favor of the verdict and defer to that

resolution. Id. at 448–49. The standard of review is the same for direct and

circumstantial evidence cases; circumstantial evidence is as probative as direct

evidence in establishing guilt. Dobbs, 434 S.W.3d at 170; Acosta v. State, 429

S.W.3d 621, 625 (Tex. Crim. App. 2014).




                                          13
           B. The Evidence is Sufficient to Support White’s Conviction

      Here, Ayo was injured when a robber took her purse and pushed her to the

ground during the course of the robbery. White was found with Ayo’s purse

approximately twelve minutes after the robbery in a location approximately half a

mile from where the robbery took place. The van White was driving generally

matched the description of the robber’s van given to authorities by Ayo, with the

exception that the van White was driving was silver while Ayo described the

robber’s van as light gray or beige.      That slight discrepancy in color can be

explained by the dark lighting at the time of the robbery and the fact that White’s

van was “very dirty.”10

      White’s appearance also generally matched the description of the robber

given to authorities by Ayo. Ayo told authorities that the robber was a black male

with short hair in his twenties or thirties. White is a black male, and at the time of

the robbery, he was thirty-seven. While he had long hair at the time of his arrest,

he was also wearing a black do-rag when apprehended.               Officer Wiseman

testified that when someone is wearing a do-rag it is impossible to tell how much

hair that person has.11 Ayo also told authorities that White was wearing a black


      10
       As mentioned earlier, Officer Wiseman testified that he thought the van
was tan when he first approached it.
      11
         We have viewed photos taken of White in the hours following his arrest in
which he is wearing the do-rag. We agree with Officer Wiseman’s testimony that
it is impossible to tell whether White’s hair is long or short when he is wearing the
do-rag, as his hair cannot be seen underneath the do-rag.


                                         14
hoodie and black pants. When apprehended, White was wearing a blue hoodie

and black pants.     Ayo guessed that the robber was “[f]ive-six, five-seven,

something like that,” yet she also described him as “tall.” White is five feet, nine

inches.

      The minor discrepancies between Ayo’s description of the robber and

White’s appearance on the day of the robbery do not preclude White’s conviction;

rather, they were facts for the jury to weigh and consider. See Earls v. State, 707

S.W.2d 82, 85 (Tex. Crim. App. 1986) (“Any discrepancies in the description of

appellant’s clothing or appearance go to the weight and credibility of the

witnesses and were before the jury for their consideration.”); Razo v. State, No.

02-11-00161-CR, 2012 WL 3207271, at *6 (Tex. App.—Fort Worth Aug. 9, 2012,

no pet.) (“It is reasonable to assume that Burk’s recollection of the appearance of

his assailants could be inaccurate, and such a discrepancy does not render the

jury’s finding improper in light of the additional evidence linking Razo to the

crime.”).

      While Ayo was not able to identify White during the photo lineup, she

testified that she did not see the robber’s face.     Moreover, she qualified her

answer by stating, “That’s not him, unless he had a haircut.” The mere fact that

Ayo did not identify White in the photo lineup does not preclude his conviction;

instead, it too was a fact for the jury to weigh and consider. See Livingston v.

State, 739 S.W.2d 311, 329 (Tex. Crim. App. 1987) (“The fact that a witness

cannot give a positive identification of another person goes to the weight of his


                                        15
testimony . . . ; therefore, the lack of a positive identification is a jury issue.”),

cert. denied, 487 U.S. 1210 (1988); Anderson v. State, 461 S.W.3d 674, 679

(Tex. App.—Texarkana 2015, no pet.) (“The fact that Haworth did not identify

Anderson in the photographic lineup is a factor for the jury to consider and

resolve.”).

      While White offered police an alternative explanation for why he was in

possession of Ayo’s purse—he told police he had found it while looking through

dumpsters in the area—the jury was free to believe or disbelieve White’s

explanation. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001)

(stating that it “is a jury, not a reviewing court, that accepts or rejects reasonably

equal competing theories”); Gregory v. State, 159 S.W.3d 254, 261 (Tex. App.—

Beaumont 2005, pet. ref’d) (stating that it is “within the province of the jury” to

resolve competing theories of the evidence). Given that White—who matched

the general description of the robber—was found twelve minutes after the

robbery sitting in a van generally matching the description of the van utilized by

the robber, that the van was parked half a mile from where the robbery occurred,

and that White was in possession of Ayo’s purse and money, the jury was free to

reject White’s explanation.12

      12
        To accept White’s explanation, the jury would have to believe that in a
twelve-minute time span another person—matching White’s general description
and driving a van similar to White’s—robbed Ayo, drove some distance away,
and discarded her purse containing cash in a dumpster and that White happened
to come along, find the purse, and get back to his van located “pretty far away”
from the nearest dumpster.


                                         16
      Considering the evidence in the light most favorable to the jury’s verdict,

we hold that a rational trier of fact could have found beyond a reasonable doubt

that White committed the offense of robbery causing bodily injury.       We thus

overrule White’s second issue.

                                 V. CONCLUSION

      Having overruled White’s two issues, we affirm the trial court’s judgment.



                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 4, 2016




                                       17
