                                                                                         ACCEPTED
                                                                                    12-14-00005-CR
                                                                         TWELFTH COURT OF APPEALS
                                                                                     TYLER, TEXAS
                                                                               3/3/2015 12:10:35 AM
                                                                                       CATHY LUSK
                                                                                             CLERK

                        Cause No. 12-14-00005-CR

                                                                    RECEIVED IN
                                                              12th COURT OF APPEALS
                                                                   TYLER, TEXAS
                     In the Court of Appeals for the
                                                              3/3/2015 12:10:35 AM
                  Twelfth Judicial District at Tyler, Texas        CATHY S. LUSK
                                                                       Clerk



                               Joseph Finley,
                                 Appellant                           3/3/2015

                                     v.

                              State of Texas,
                                 Appellee



             On Appeal from Cause No. 2013-0140 in the 217th
             Judicial District Court of Angelina County, Texas



                               State’s Brief



                                          April Ayers-Perez
                                          Assistant District Attorney
                                          Angelina County D.A.’s Office
                                          P.O. Box 908
                                          Lufkin, Texas 75902
                                          (936) 632-5090 phone
                                          (936) 637-2818 fax
                                          State Bar No. 24090975
                                          aperez@angelinacounty.net

Oral Argument Not Requested
                           Identity of Parties and Counsel

Joseph Finley, Appellant                        Layne Thompson
                                                Attorney for the State (trial)
John Reeves                                     Angelina County District Attorney’s
Counsel for Joseph Finley (trial)                  Office
1007 Grant Ave.                                 P.O. Box 908
Lufkin, Texas 75901                             Lufkin, Texas 75902

John Tunnell                                    April Ayers-Perez
Counsel for Joseph Finley (appeal)              Attorney for the State (appeal)
P.O. Box 414                                    Angelina County District Attorney’s
Lufkin, Texas 75902                                   Office
                                                P.O. Box 908
                                                Lufkin, Texas 75902




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                                                 Table of Contents

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities .................................................................................................. v

Statement Regarding Oral Argument...................................................................... vii

Issues Presented ...................................................................................................... vii

Statement of Facts ..................................................................................................... 1

Summary of the Argument........................................................................................ 4

Argument .................................................................................................................. 5

         Reply Issue #1: The evidence is legally sufficient, beyond a
         reasonable doubt, to support the Appellant’s conviction for
         Aggravated Robbery .................................................................................... 5

                   Applicable law ...................................................................................... 5

                   Standard of Review .............................................................................. 6

                   The identification of the defendant was permissible ............................ 8

         Reply Issue #2: Appellant’s verdict of conviction was made in
         open court in front of Appellant and no fundamental error has
         occurred ......................................................................................................... 9

Prayer ...................................................................................................................... 10

Certificate of Compliance ....................................................................................... 11

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Certificate of Service .............................................................................................. 11




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                                        Index of Authorities

Cases                                                                                                Page

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2012) ....................................... 8

Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2004) ........................................... 7

Harris v. State, 827 S.W.2d 949 (Tex. Crim. App. 1992) ........................................ 6

Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................. 7

Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998)................................... 8, 9

Loserth v. State, 985 S.W.2d 536 (Tex. App.—San Antonio 1998) ..................... 8, 9

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ......................................... 7

Manson v. Brathwaite, 432 U.S. 98 (1977) .............................................................. 6

Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013) ....................................... 8


Statutes

Tex. Pen. Code Ann. § 29.02(a)(2) (West 2011). ..................................................... 6

Tex. Pen. Code Ann. § 29.03(a)(3)(A) (West 2011). ............................................... 6

TEX. CODE CRIM. PROC. ANN. art. 37.06 (West 2011). ........................................... 10




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Rules

Tex. R. App. P. 39.1................................................................................................ vii




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                     Statement Regarding Oral Argument

      Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is

unnecessary, as the facts and legal arguments are adequately presented in the briefs

and record and the decisional process would not be significantly aided by oral

argument.

                                 Issues Presented

      Reply Issue #1: The evidence is legally sufficient, beyond a reasonable

doubt, to support the Appellant’s conviction for Aggravated Robbery.

      Reply Issue #2: Appellant’s verdict of conviction was made in open court

in   front   of   Appellant    and    no          fundamental   error   has   occurred.




                                           

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                                                                Statement of Facts

               On November 17, 2012 Shirley Williamson and her daughter, Amy Lair,

went shopping at Beall’s Department Store at the Lufkin Mall.1 After shopping,

while walking to their car, Williamson noticed a young, black man standing at the

door as they exited the mall, and that man began to follow them.2 Although

Williamson was unable to get a good look at the man, she did notice, when he

grabbed her purse, that he was wearing a black jacket.3 Lair, however, got a much

better look at the man as they were leaving the mall.4 The man was about ten feet

from Lair and was wearing a black jacket, blue jeans, and a purple and white hat.5

When the man robbed Williamson, Lair stated that he was wearing the same purple

hat and black jacket, and that is how she was able to identify the robber as the

same person whom she saw as she was leaving the mall.6 As Williamson and Lair

were walking to their car the man “reached his hand around my right side and

grabbed my purse, pulled me to the ground, and started dragging me because I

wouldn’t let go of the purse.”7 Williamson eventually let go of the purse after it




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1
  II R.R. at 22.
2
  Id. at 23.
3
  Id. at 24.
4
  Id. at 42.
5
  Id. at 42-43.
6
  Id. at 45.
7
  Id. at 24.
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was jerked out of her hands because the robber was stronger than her.8 Williamson

suffered from physical pain when she landed on her right shoulder and right knee,

resulting in scrapes to her knee and a fracture of her right shoulder.9 The robber

was successful in taking Williamson’s purse, which included her billfold, credit

cards, cash, and a checkbook.10 Eventually, one of the checks that was stolen from

Williamson, identified as check number 9753, turned up at a local establishment.11

The check, which Williamson had signed and left blank for future use, now had the

name “Joseph Finley” written into the payee line.12 Not only had Williamson

never written a check to anybody named Joseph Finley, but she did not even know

anybody named Joseph Finley prior to this incident.13 One of the credit cards in

Williamson’s purse that was stolen was also recovered after it was used at a local

grocery store.14 Officer Hennigan of the Lufkin Police Department contacted the

local grocery store and was able to receive the date of birth of the person who used

the credit card stolen from Williamson.15 That date of birth tracked back to a

“Joseph Finley” in the Lufkin Police Department database.16 Detective Standridge


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8
  Id. at 35.
9
  Id. at 24-27.
10
   Id. at 27.
11
   Id. at 29-30.
12
   Id. at 30-31.
13
   Id. at 31.
14
   Id. at 71.
15
   Id. at 74.
16
   Id.
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of the Lufkin Police Department viewed the surveillance tapes from the local

grocery store where Williamson’s credit cards were used and identified the

Appellant, as well as a Trent Land, as the two people using Williamson’s credit

card.17

               In December 2012, a month after the robbery occurred, Lair learned through

the local newspaper, the Lufkin Daily News, that a man had been arrested for

similar robberies and had been charged with the robbery on Williamson.18 The

man identified in the newspaper was the Appellant, Joseph Finley.19 A picture of

Finley also appeared in the paper, but because of the quality and appearance of the

picture, Lair was unable to conclusively identify the Appellant from the

photograph in the newspaper.20 A few months later Lair was asked by Detective

VanEman to look at a photo lineup to try and identify the person who robbed

Williamson in front of Lair.21 Detective VanEman had been asked by Detective

Standridge to show Lair the photo lineup.22 Detective VanEman was not aware of

who the suspect was in the lineup, and showed Lair the lineup in his office.23 Lair

identified one of the photographs of being the person who she believed to be who

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17
   Id. at 102-03.
18
   Id. at 47.
19
   Id. at 48.
20
   Id.
21
   Id. at 48-50.
22
   Id. at 66.
23
   Id. at 65-66.
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robbed Williamson, and the person she identified was the Appellant.24 Lair then

went on to identify the person who robbed Williamson as the Appellant by making

a courtroom identification of him.25 Lair clarified that, although she saw the

Appellant’s picture in the newspaper prior to the photo lineup, it did not affect her

identifying the Appellant from the photo lineup because of the quality of the

picture in the newspaper and the difference of appearance in the Appellant.26

               Shortly before the Non-Jury Trial of the Appellant, Larry Cosby met with

the Appellant and the Appellant confessed to the aggravated robbery.27 Appellant

stated that he and Land were short on money and Land told the Appellant to take

him to the mall so he could “hit a lick”.28 The Appellant told Cosby that he

dropped Land off at the mall and picked him up after the robbery.29 When asked

what “hit a lick” meant the Appellant stated that it meant something illegal was

about to occur.30




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24
   Id. at 50-51; See State’s Exhibit 6.
25
   Id. at 52.
26
   Id. at 57-58.
27
   Id. at 108-09.
28
   Id. at 109.
29
   Id. at 109-10.
30
   Id. at 110.
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               When the Appellant took the stand he admitted to using the credit cards to

buy cigarettes that he could trade for marijuana and cocaine.31 Appellant also

stated that “hit a lick” meant to get some money when you need it.32

                                                                Summary of the Argument

               There was legally sufficient evidence to support a conviction of the

Appellant. The Appellant was identified by an eyewitness, the daughter of the

victim, as the person who knocked down and dragged the victim, while stealing her

purse. Since then, the Appellant was caught by law enforcement using the credit

cards and check of the victim that was located in her purse when the purse was

stolen from her.

               The identification of the Appellant was permissible.                       Although the

eyewitness saw the Appellant’s picture in the newspaper associated with the

robbery of her mother, that did not affect the eyewitnesses identification of the

Appellant.                    The eyewitness speaks to the differences between the newspaper

photograph of the defendant and how the defendant looked that night, and

identified the photograph in the photo lineup of the Appellant not based on the

picture in the newspaper but based on what the eyewitness saw at the time of the

aggravated robbery.


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31
     Id. at 115-16.
32
     Id. at 120.
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               The Appellant heard the verdict read in open court. The verdict was read at

the beginning of the sentencing, and Appellant’s fundamental rights were not

violated because he was present for the reading of the verdict.

                                                                  Argument

               Reply Issue #1: The evidence is legally sufficient, beyond a reasonable

doubt, to support the Appellant’s conviction for Aggravated Robbery.

                                                                Applicable Law

                              A person commits an offense if, in the course of committing theft, he

intentionally or knowingly threatens or places another in fear of imminent bodily

or death.33 This offense is aggravated if it causes bodily injury to another person or

threatens or places another person in fear of imminent bodily injury or death, if the

other person is 65 years of age or older.34

               While due process of law generally prohibits the admission of testimony in

regards to identification that is inherently unreliable, “if the identification

testimony follows unnecessarily suggestive pretrial procedures, that testimony will

still be admissible if the totality of the circumstances indicates that the testimony is

reliable.”35


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33
      Tex. Pen. Code Ann. § 29.02(a)(2) (West 2011).
34
      Tex. Pen. Code Ann. § 29.03(a)(3)(A) (West 2011).
35
      Harris v. State, 827 S.W.2d 949, 959 (Tex. Crim. App. 1992); citing Manson v.
Brathwaite, 432 U.S. 98,113-114 (Tex. Crim. App. 1977).
                                                                      

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                                                                Standard of Review

               Sufficiency of the evidence in a bench trial is measured by a standard

analogous to the “hypothetically correct jury charge” standard, which includes the

statutory elements of the offense as modified by the charging instrument.36 Such a

charge would be one that “accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.”37

               In this case, the charging instrument (indictment) alleged:

               Defendant, on or about the 17th day of November, A.D. 2012, … did
               then and there, while in the course of committing theft of property and
               with intent to obtain or maintain control of said property,
               intentionally, knowingly, or recklessly cause bodily injury to Shirley
               Williamson, a person 65 years of age or older, by pulling her to the
               ground as he stole her purse38

               The State must prove every element of the crime charged beyond a

reasonable doubt.39 In reviewing the legal sufficiency of the evidence to support a

conviction, the court considers the evidence in the light most favorable to the

verdict to determine whether the fact-finder was rationally justified in finding guilt


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36
               Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Curry v. State, 30
               S.W.3d 394, 404 (Tex. Crim. App. 2004).
37
               Malik, 953 S.W.2d at 240.
38
               C.R. at 17.
39
               Jackson v. Virginia, 443 U.S. 307, 313-14 (1979).
                                                                        

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beyond a reasonable doubt.40 When evaluating the sufficiency of the evidence, the

court must presume the trier of fact resolved any conflicts in the evidence in favor

of the verdict and defer to that resolution.41

               A criminal conviction may be based upon circumstantial evidence and

circumstantial evidence alone can be sufficient to establish guilt.42                       In

circumstantial evidence cases, not every fact and circumstance needs to point

“directly and independently to the defendant’s guilt.”43 If the conclusion is

supported by the “combined and cumulative force” of all the incriminating

circumstances, the evidence is sufficient to establish guilt.44            When      reviewing

an in-court identification issue, almost total deference is given to the trial court’s

determination of historical facts when they are based on credibility or demeanor, or

application of law to facts when they are based on credibility or demeanor.45

Application of law to facts not based on credibility or demeanor – and questions of

law – are reviewed de novo.46




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40
               Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
41
               Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2012).
42
               Temple, 390 S.W.3d at 359.
43
               Id.
44
               Id.
45
               Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (Loserth I).
46
               Id.
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               The defendant bears the burden of determining both elements of an

impermissible in-court identification by clear and convincing evidence.47

                                            The Identification of the Defendant was Permissible

               The totality of the circumstances show that the identification of the

Appellant was not impermissible. Although there was some time between when

the eyewitness, Lair, saw the Appellant and when she identified him in a lineup,

the actual lineup was conducted by a law enforcement officer with no knowledge

of the case, and Lair picked Appellant out of a lineup that was given to her one and

by one and in which she did not know if the suspect was in it or not.48

Furthermore, the picture of the Appellant in the lineup was not the same

photograph as appeared in the local newspaper that the eyewitness saw, the quality

and clarity of the photograph is much different between the two.49

               The eyewitness was able to look at the Appellant for a few seconds or longer

when walking out of the mall because the eyewitness said help and exchanged

pleasantries with the Appellant. It is at that time that the eyewitness was able to

make an identification of the Appellant, and saw an individual with the same




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47
               Loserth II, 985 S.W. 2d at 543.
48
               II R.R. at 65.
49
               Id.
                                                                 

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clothes as the Appellant steal her mother’s purse and drag her mother along the

ground.50

                              Reply Issue #2: Appellant’s verdict of conviction was made in

open court in front of Appellant and no fundamental error has occurred.


               A defendant is required to be present, in a felony case, when the verdict is

read unless his absence is either willful or voluntary.51 The Appellant was present

in court when the verdict of conviction against him was read. The first time the

Court read the verdict was prior to the sentencing phase of the trial, and the

Appellant was present in the courtroom when the verdict was read for the first

time. As such, no fundamental error has occurred.




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50
               Id.
51
               TEX. CODE CRIM. PROC. ANN. art. 37.06 (West 2011).
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                                     Prayer

       The State of Texas prays that this Court of Appeals affirm the judgment of

the trial court.




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                                                Respectfully Submitted,

                                                /s/ April Ayers-Perez
                                                Assistant District Attorney
                                                Angelina County D.A.’s Office
                                                P.O. Box 908
                                                Lufkin, Texas 75902
                                                (936) 632-5090 phone
                                                (936) 637-2818 fax
                                                State Bar No. 24090975
                                                ATTORNEY FOR THE
                                                STATE OF TEXAS

                             Certificate of Compliance

      I certify that this document contains 2,080 words, counting all parts of the

document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in

14 point font, and the footnote text is in 12 point font.


                                                /s/ April Ayers-Perez


                                Certificate of Service

      I certify that on March 2, 2015, a true and correct copy of the above

document has been forwarded to John Tunnell, counsel for Joseph Finley on

appeal, at P.O. Box 414, Lufkin, Texas, 75902, via electronic service through

efile.txcourts.gov.


                                                /s/ April Ayers-Perez

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