

Opinion filed August 31,
2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00371-CR
                                                    __________
 
                            KLENT
AARON BURNSIDE, Appellant
                                                             V.
                                      STATE
OF TEXAS, Appellee

 
                                   On
Appeal from the 42nd District Court
                                                            Taylor
County, Texas
                                                    Trial
Court Cause No. 23707A
 

 
M E M O R A N D U M   O P I N I O N
Klent
Aaron Burnside appeals his conviction by a jury of the offense of aggravated
robbery.  The trial court assessed his punishment at twelve years in the Texas
Department of Criminal Justice, Institutional Division, on each of two counts,
with the sentences to run concurrently.  He contends in a single issue that the
evidence is insufficient to support his conviction.  We affirm.
In
determining Burnside’s claim that the evidence is insufficient to support his
conviction, we must determine whether any rational finder of fact could have
found the existence of the elements of the offense after viewing all of the
evidence in a light most favorable to the verdict.  Jackson v. Virginia,
443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893 (Tex.
Crim. App. 2010); Gibbs v. State, 819 S.W.2d 821, 834 (Tex. Crim. App.
1991).  It is not our duty to sit as a thirteenth juror reweighing the evidence
or deciding whether we believe the evidence established the elements of the
offense in question beyond a reasonable doubt.  Gibbs, 819 S.W.2d at
834.  When we review the evidence where there are facts that support
conflicting inferences, we must presume that the finder of fact resolved the
conflict in favor of the verdict.  We must resolve any inconsistencies in favor
of the verdict.  Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App.
1990).
Herschel
Thigpen testified that he was working at a convenience store in Abilene at
about 6:00 p.m., or shortly thereafter, when Burnside picked up some cookies. 
He said that, when Burnside went to the counter, Burnside dug around in his
pockets and did not have any money to pay for the cookies.  Thigpen indicated
that the customer behind Burnside presented a twenty-dollar bill to pay for the
cookies.  Thigpen related that, when the clerk opened the register, Burnside
said, “[W]ell, while you have the register open,” and then pulled a handgun on
the clerks.  Thigpen related that Burnside said, “[P]ut your head down and give
me all your money out of the register.”
Thigpen
acknowledged that, after Burnside took the money, everyone told him that they
had not seen his face when he asked if they had seen it.  Thigpen said that was
not really the truth.  Thigpen said he described the robber as wearing a goatee
and “little longer hair.”  He acknowledged that the robber was wearing a
baseball cap so that he really could not see his hair.  Thigpen stated that the
robber was wearing a hoodie and was wearing gloves on his hands.
Thigpen
testified that he was not able to identify Burnside from a group of photos
shown to him by Detective Will Ford of the police department, noting that the
pictures were not that great.  In court, Thigpen identified Burnside as the
robber.  He acknowledged that Burnside did not have a beard or goatee and
hardly had any hair.  He said, “I can look into his eyes and pretty much tell
you it was him.”  He insisted that he would never forget the robber’s face.
On
cross-examination, Thigpen acknowledged that the pictures Detective Ford showed
him were not blurry, but were regular pictures.  He acknowledged that he could
not see the robber’s hair but that he did see the gun.  Thigpen said that he
looked at the gun, but that, when the robber walked up to the register, he
looked up at the robber’s face.  He acknowledged that he did not mention that
in his statement because he was really scared and could not remember what the
robber looked like.  He admitted that, in his statement, he said he did not get
a real good look at the robber’s face.
John
R. Wilson, a detective with the Abilene Police Department, testified that, at
the time of the robbery, he was a patrol officer in the area where it
occurred.  He went to the scene and talked to the victims.  He picked up a
package of cookies that he was told the robber had picked up after taking one
of his gloves off.  He said that he found a ball cap in open view on the
driveway outside the store.  The victims identified the cap as the one that the
robber had on when he robbed them.  He acknowledged that one fingerprint was
found on the package of cookies that did not belong to Burnside.  He said that it
would not be uncommon for more than one person’s prints to be on the package,
which was located in a display next to the register.  He also said that the gun
used was not found.
On
cross-examination, Detective Ford acknowledged that the ball cap did not have
Burnside’s DNA on it.  He clarified that the package of cookies had a number of
people’s fingerprints on it.  He acknowledged that Thigpen told him that he did
not get a good look at the robber because he was told not to look, so he did
not look.  On redirect examination, Detective Ford testified that no one
identified anyone other than Burnside as the robber.
Ralph
Galvan, a video review officer for the chain of stores that owned the store
where the robbery occurred, identified video recorded at the time of the
robbery.
e aHH
 
 
HTrisha Medina, a second clerk in the store at the
time of the robbery, testified concerning the events that occurred.  She said
that the robber was wearing a leather jacket, dark denim jeans, and a black
baseball cap with a green marihuana leaf on the front.  She indicated that the
robber had a goatee that was not really clean shaven around the sides.  She
related that his hair stood “a couple inches off” and that he had on big
diamond stud earrings.  She identified Burnside as the robber.  She said he had
the cookies in his gloved hand while he was digging for change with his hand
from which he had removed a glove.
Medina
testified that she was afraid Burnside was going to kill her and her unborn
child. She indicated that, after Burnside left, she summoned police and the
store manager.  She related that, although she told Burnside she had not seen
his face, she actually did see it.  She insisted she had no doubt that Burnside
was the man who robbed her.  She said that, although he did not look the same
at trial as he did during the robbery, his face, features, nose, eyes, and
structure were imprinted in her mind forever—something she would never forget. 
Medina stated that she looked at about five or six pages of lineup pictures
with six pictures to a page and picked out Burnside, without any hesitation.
On
cross-examination, Medina acknowledged that, in the video, Burnside was wearing
a sweater, not a jacket, but she insisted that she could not have been mistaken
about whom she really saw.  She also acknowledged that the marihuana leaf on
the ball cap was black, rather than green.  She insisted that, even if she had
been mistaken about the jacket and the cap, she was sure about the face.
Medina
testified that, when she talked to police originally, she had assumed that
Burnside had touched the cookies with the hand from which he had removed his
glove.  She acknowledged that, after the cookies tested negatively for Burnside’s
fingerprints, she told Detective Ford that he must have had the cookies in his
gloved hand.  She also acknowledged that she might have been mistaken about
what he looked like because he had a beard.  On redirect examination, Medina,
who indicated that she had miscarried two weeks after the robbery, again
insisted that she would never forget the face that scared her so badly.
Robert
Hudson testified that he offered to pay for Burnside’s cookies.  He indicated
that Burnside pulled out a gun when the clerk opened the register.  He stated
that he was sure Burnside was the robber and that he looked the same except
that he had a thin moustache.  He later related that Burnside had a goatee,
rather than a thin moustache.  He noted that he had identified Burnside from a
one-page photo lineup.  He insisted he had no problem picking out Burnside. 
Hudson indicated that Burnside was wearing a glove on his hand when he put the
cookies down on the counter.  On cross-examination, Hudson stated that Burnside
had on a jacket.e
Will
Ford testified that he is a detective with the Abilene Police Department.  He
said he presented photo lineups to the witnesses in this case.  He indicated
that, without any problem at all, Medina identified Burnside as the suspect in
the robbery.  He noted that he did not disclose to Hudson whom Medina had
identified.
Detective
Ford testified that Hudson identified Burnside from a photo lineup with a
different photo of Burnside than the one Medina had identified.  He indicated
that Hudson also had no problem identifying Burnside.  He said that, even
though the fingerprint on the cookie package did not match Burnside, it was
very common for people to touch products in a convenience store.  He said he
was aware that Medina had indicated that the robber was wearing a jacket and a
cap with a green marihuana leaf on it.  He acknowledged that a jacket was never
found, that there was no green marihuana leaf on the cap, and that the only DNA
found on the cap was that of someone other than Burnside.  He also acknowledged
that no check was done to see if Burnside had a weapon registered to him and
that Thigpen could not pick out anyone.  The State rested after David A. Seitz,
the manager of the convenience store, testified that, after the robbery, the store
was missing $99.34 out of its receipts.
Burnside
testified that, at the time of the robbery, he was traveling from Abilene to
Eula, Texas, with his friend Theodore Thompson; his girlfriend at the time,
Heather Rhodes; and Sharee and Ashley, two friends.  He indicated that they
arrived at Sharee and Ashley’s home in Eula at about 6:30 p.m. or 7:00 p.m.  He
estimated the driving time from Abilene to Eula to be about one hour and
something.  We take judicial notice that Eula is sixteen miles from Abilene and
that the driving time for that distance is about twenty-two minutes.  He
indicated that they made the trip in a white Tahoe driven by Thompson.  He said
he was not aware that the robber left the convenience store in an unidentified
Tahoe.  Burnside acknowledged that he spoke with Detective Ford but never told
him where he was at the time of the robbery.  He further acknowledged that he
had never met any of the witnesses before.
Heather
Starlene Rhodes testified that Burnside was her boyfriend, that they were
living together at the time of the robbery, and that she was with him every
day.  She said that she recalled going to Eula with Burnside, but could not
remember the exact date.  She stated that, if Burnside said it was the date of
the robbery, that would be correct.  She insisted that Burnside had no clothing
matching that worn by the robber in the video of the robbery.
On
cross-examination, Rhodes denied telling Detective Ford that Burnside would not
tell her about his personal business but would just tell her that he was going
to “hit a lick” and be back later.  She acknowledged that she was in custody
for possession of cocaine with intent to deliver and had also been convicted
for a federal offense of possession of marihuana.
Detective
Ford testified that Rhodes did not tell him she was with Burnside every day and
every night in December.  According to Detective Ford, she told him that she
knew Burnside was doing robberies but that he would not specify who or what he
was robbing.  Detective Ford said Rhodes told him that Burnside would say he
was going to go “hit a lick” but would never say “where or who.”  He indicated
that “hit a lick” was street slang for “go and rob someone.”  Detective Ford
testified that he had known Burnside before this investigation and that
Burnside was not trustworthy at all.
Although
he had indicated on redirect examination that he had never shown Rhodes the
video of the robbery, on recross examination, Detective Ford acknowledged that
he might have shown it to her.  Detective Ford acknowledged that “hit a lick”
could also mean to sell dope.  On redirect examination, he denied that Rhodes
had ever told him that Burnside did not commit the robbery, although he had
given her the opportunity to do so.  Medina, when recalled as a witness,
testified that, although she might be wrong about some details, she had no
doubt at all about her identification of Burnside because she would never
forget his face.  We hold that the evidence is sufficient to support the
conviction.
Burnside
relies heavily on the opinion in Ward v. State, 48 S.W.3d 383 (Tex. App.—Waco
2001, pet. ref’d).  We find that case to be distinguishable.  First, in Ward,
several of the defendant’s coworkers testified that he was at work at the time
the offense was committed.  48 S.W.3d at 390.  The State never
effectively challenged Ward’s alibi in that case, whereas both Burnside’s and
Rhodes’s testimony was strongly challenged in the trial of this case.  Id. at
391.  We also note that the opinion in Ward that the evidence was
insufficient was one based upon a claim that the evidence was factually
insufficient, using a standard of review that is no longer applicable.  Id.;
see Brooks, 323 S.W.3d at 912.
Burnside
appears to contend that we should rely on Ward, despite the fact that it
used the factual review standard as set forth in Clewis v. State, 922
S.W.2d 126 (Tex. Crim. App. 1996), because, in Brooks, the Texas
Court of Criminal Appeals said that there was no meaningful distinction between
the two standards.  See Brooks, 323 S.W.3d at 895.  We have
applied the standard as set out by the Court of Criminal Appeals in Brooks
as the “only” appropriate stan-dard of review.  See id. at 895, 912.  We
overrule Burnside’s sole issue.
The
judgment of the trial court is affirmed.
                                                
                                                                                    PER
CURIAM
August 31, 2012
Do not publish. 
See Tex. R. App. P.
47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill.[1]




[1]John G. Hill, Former Chief Justice, Court of Appeals,
2nd District of Texas at Fort Worth, sitting by assignment.


