                                 NO. 07-04-0419-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL E

                                   MARCH 3, 2006

                         ______________________________


                         STEVEN L. BORGERS, APPELLANT

                                           v.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2004-405065; HON. CECIL G. PURYEAR, PRESIDING

                        _______________________________

Before QUINN, C.J., REAVIS, J., and BOYD, S.J.1

                              MEMORANDUM OPINION

      In this appeal, appellant Steven L. Borgers challenges his conviction of aggravated

robbery and the ensuing jury-assessed punishment of 60 years confinement in the

Institutional Division of the Department of Criminal Justice and, in addition, a fine of

$10,000. In presenting his appeal, in one point, he contends the evidence is factually




      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2005).
insufficient to support the jury’s verdict. Disagreeing with that contention, we affirm the

judgment of the trial court.

       The nature of appellant’s challenge makes it necessary for us to recount pertinent

testimony. On February 2, 2004, the Denny’s restaurant located on Avenue Q in Lubbock

was robbed at about 5:00 p.m. The manager of the restaurant, Danielle Walters, testified

that she was in a small room used by her as a place for changing receipts and counting

money. As she was about to lock the door to the room, she was surprised by a black male

who had a pantyhose over his head and was dressed in dark clothes with a blue jacket.

She was seated in a rolling chair and, as the individual entered the room, he knocked her

out of the chair and pushed a gun into the side of her head. The intruder told her she was

being robbed, to get down, not say anything, not to look up at him and if she did look at

him, he would shoot her. He took money off the desk and told Walters that he knew there

was $800 in the safe and she should give him that money.

       Walters averred that the robber’s voice stood out for her and that “the characteristics

of the voice was [sic] the exact same as an employee that I had talked to just recently.”

She also averred that as she listened to the voice, “[t]here’s only one name clicking through

my head, and it was the name of the employee.” She identified that employee as

appellant. She also said that the store had a videotape surveillance system that “monitors

pretty much our office door” in addition to other portions of the business. The man told her,

“I want the videotape,” and she gave it to him. She was then pushed under the desk, and

the man attempted his get-away. He was unable to leave through the back door, so he

had to leave through the restaurant.



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       Rick Rose, another Denny’s employee, was eating as a customer at the restaurant

at the time of the robbery. While he was in the restroom at Denny’s, he saw appellant.

Although it took him a minute to recognize him, he knew appellant because he had trained

on the morning shift that appellant had worked. Rose asked appellant what he was doing,

to which appellant replied that he was just there to use the bathroom. Rose noticed that

appellant had on a blue jacket and appeared to have a black bag clutched to his chest.

Shortly afterwards, Rose saw appellant leave the restaurant, he opined, “a little faster than

normal.”

       Next, Rose saw Walters come from the back of the building. She was excited and

told him that she had been robbed and, she said, “I know the voice.” They locked the

doors to the restaurant and notified the police. Rose then looked into each of the rooms

of the restaurant and discovered rolls of coins on the floor of the restroom. He averred he

had not seen any African-Americans in the restaurant other then appellant. He was shown

a photo-lineup at the police station and identified appellant as the individual he had seen

in the restroom and at the restaurant.

       Appellant’s witness Angela Terrell testified that appellant was staying with her at her

apartment. She said that appellant had come by her workplace to pick her up about 4:30

p.m. on the day of the robbery but left because she had to work until 5:30 p.m. He was not

there to pick her up at 5:30 p.m. but was at her apartment about 5:45 when she returned

after getting a ride from a co-worker. Her apartment was searched by the police, but

nothing incriminating was found. Tasha Terrill, appellant’s niece, furnished alibi testimony

by averring that appellant was at Angela Terrell’s apartment and left a little after 4:00 p.m.



                                              3
She said that appellant returned a little after 4:00 p.m. and left the apartment a little after

5:00 p.m.

       It has long been the rule that a criminal appellant may challenge the sufficiency of

the State’s evidence even though the issue was not raised in the trial court. Givens v.

State, 26 S.W.3d 739, 740-741 (Tex. App.–Austin 2000, pet. ref’d). In a factual sufficiency

review, all of the evidence is considered equally, including the testimony of defense

witnesses and the existence of alternative hypotheses. Id. at 741-42. A factual sufficiency

review asks whether a neutral review of the evidence, both for and against the finding of

guilt, demonstrates that the proof of guilt is so obviously weak or so greatly outweighed by

contrary proof as to undermine confidence in the jury’s verdict. See Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). In performing that function, we must remember that

we are not free to reweigh the evidence and set aside a verdict merely because we feel

that a different result is more reasonable. See Clewis v. State, 922 S.W.2d 126, 135 (Tex.

Crim. App. 1996).

       The gist of appellant’s challenge is Walters’ identification of appellant as the culprit

simply by her familiarity with his voice. However, her trial testimony was clear, definite, and

unimpeached on cross-examination that she was able to recognize appellant’s voice

because she had heard it before during the course of appellant’s employment at the

restaurant. Her outcry and identification were immediate. The Court of Criminal Appeals

has held that voice identification testimony is admissible and it is within the jury’s province

to determine the weight to be given the testimony. See McInturf v. State, 544 S.W.2d 417,

418-19 (Tex. Crim. App. 1976). There is also testimony that appellant was at the scene



                                              4
of the crime at the time it was committed by a person who was familiar with him. Although

it is true that there was alibi testimony, the evidence adduced was amply sufficient to be

within the jury’s exclusive province to resolve any factual differences and to determine the

credibility of the testimony.

       In summary, we hold the evidence was legally and factually sufficient to sustain the

jury verdict. Accordingly, appellant’s point of alleged error must be, and is hereby,

overruled. The judgment of the trial court is affirmed.



                                                 John T. Boyd
                                                 Senior Justice

Do not publish.




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