                                                                                                ACCEPTED
                                                                                           06-14-00168-CR
                                                                                 SIXTH COURT OF APPEALS
                                                                                      TEXARKANA, TEXAS
                                                                                      2/18/2015 3:32:19 PM
                           No. 06-14-00168-CR                                              DEBBIE AUTREY
                       Trial Court No. 11F0921-102                                                  CLERK



                   IN THE COURT OF APPEALS
            FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
                                                6th COURT OF APPEALS
                     AT TEXARKANA, TEXAS          TEXARKANA, TEXAS
                                                                   2/18/2015 3:32:19 PM
Lyndon Anderson,                                                      DEBBIE   AUTREY
                                                                             Appellant
                                                                           Clerk


v.

The State of Texas,                                                              State
                 Appealed from the 102nd Judicial District Court
                             Bowie County, Texas




                       BRIEF FOR THE STATE
                   The State Does Not Request Oral Argument

                                            Respectfully submitted:

                                            Jerry D. Rochelle
                                            Criminal District Attorney
                                            Bowie County, Texas
                                            601 Main Street
                                            Texarkana, Texas 75501
                                    By:     Lauren N. Sutton
                                            Assistant District Attorney
                                            601 Main Street
                                            Texarkana, Texas 75501
                                            Texas Bar No. 24079421
                                            Lauren.sutton@txkusa.org
                                            Attorneys for the State
                              In The Court of Appeals
                       For the Sixth Supreme Judicial District
                                At Texarkana, Texas


Lyndon Anderson,                            §
          Appellant                         §
                                            §              No. 06-14-00168-CR
v.                                          §
                                            §
The State of Texas,                         §               BRIEF FOR THE STATE
             State                          §
                                            §


                                Identity of the Parties

        The following is a complete list of all the parties to the trial court’s judgment

as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate

Procedure:

     1. Defendant and Appellant:

        Lyndon Anderson

     2. Attorneys for Appellant at trial:

        Will Williams
        Chad Crowl
        Public Defender’s Office
        424 W. Broad Street
        Texarkana, Texas 75501

     3. Attorney for appellant on appeal:

        Kristian Young
        210 N. Stateline Ave, Suite 502
        Texarkana, AR 78705

                                                1
4. Attorney for the State of Texas at trial:

   James Elliott
   Kelley Crisp
   Assistant District Attorneys
   601 Main Street
   Texarkana, Texas 75501

5. Attorney for the State of Texas on Appeal:

   Lauren N. Sutton
   Assistant District Attorney
   601 Main Street
   Texarkana, Texas 75501
   Lauren.sutton@txkusa.org


6. Presiding Judge at trial:

   Honorable Bobby Lockhart
   District Court Judge
   102nd Judicial District
   Bowie County, Texas
   Bi-State Justice Building
   100 North State Line Avenue
   Texarkana, Texas 75501




                                       2
                                               Table of Contents

Identity of the Parties and Counsel ......................................................................... i-ii

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

Index of Authorities ........................................................................................... iv-viii

Statement of the Case................................................................................................. 1

Reply to Points of Error ............................................................................................. 2

Summary of the Argument..................................................................................... 3-6

Argument.............................................................................................................. 7-41

                   Reply to Point of Error Number One .............................................. 7-12
                   Photographs admitted into evidence were properly
                   authenticated; therefore it was not error for the trial court to
                   admit the photographs into evidence.

                   Reply to Point of Error Number Two ........................................... 13-17
                   Testimony by Officer Bradshaw did not introduce any evidence
                   of prior bad acts or extraneous offenses; therefore the trial court
                   did not err in admitting the testimony.

                   Reply to Point of Error Number Three ......................................... 17-20
                   The evidence is sufficient to support Appellant’s conviction for
                   aggravated robbery.



Prayer for Relief ....................................................................................................... 42

Certificate of Compliance ........................................................................................ 43

Certificate of Service ............................................................................................... 44


                                                             3
                                      Index of Authorities

Cases

Brasfield v. State, 30 S.W.3d 502 (Tex. App. –Texarkana 2000) ........................... 16

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) .....................................22

Ethington v. State, 819 S.W.2d 854 (Tex. Crim. App. 1991) .................................. 17

Gallo v. State, 239 S.W3d 757 (Tex. Crim. App. 2007) ......................................... 11

Goff v. State, 931 S.W.2d 537 (Tex. Crim. App. 1996) .......................................... 16

Harris v. State, 152 S.W.3d 786 (Tex. App.—Houston [1st Dist.] 2004) .............. 20

Harwood v. State, 961 S.W.2d 531 (Tex. App.—San Antonio 1997) .................... 20

Hill v. State, 392 S.W.3d 850 (Tex. App.—Amarillo 2013) ................................... 11

Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App. 1999) ......................................... 16

Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................ 22

Johnson v. Garza, 884 S.W.2d 831 (Tex. App.—Austin 1994, writ denied) ......... 22

Long v. State, 10 S.W.3d 389 (Tex. App.—Texarkana 2000)................................. 17

Martinez v. State, 98 S.W.3d 189 (Tex. Crim. App. 2003) ..................................... 17

Moore v. State, 295 S.W.3d 329 (Tex. Crim. App. 2009) .......................................16

Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App. 1996) ...................................... 20

Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. 1982) ......................................16

Sims v. State, 816 S.W.2d 502 (Tex. App.—Houston [1st Dist.] 1991).................. 16

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) ......................................16

                                                     4
Williams v. State, 535 S.W.2d 637 (Tex. Crim. App. 1976) ................................... 20

Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997) ................................... 16



Texas Rules of Appellate Procedure

Texas Rule of Appellate Procedure 33.1(a) ............................................................. 16

Texas Rule of Appellate Procedure 44.2(b)............................................................. 13




                                                    5
                              Statement of the Case

      Appellant, Lyndon Anderson, was found guilty of aggravated robbery. The

jury assessed punishment at sixty (60) years in the Institutional Division of the

Department of Criminal Justice, and a $5,000 fine. The trial judge sentenced him

accordingly.

      Appellant then perfected appeal to this Honorable Court. He now appeals the

verdict of the trial court on three points of error.




                                            6
                           Reply to Points of Error

                     REPLY TO POINT OF ERROR NUMBER ONE:

Photographs admitted into evidence were properly authenticated; therefore it was
not error for the trial court to admit the photographs into evidence.

                     REPLY TO POINT OF ERROR NUMBER TWO:

Testimony by Officer Bradshaw did not introduce any evidence of prior bad acts or
extraneous offenses; therefore the trial court did not err in admitting the testimony.

                    REPLY TO POINT OF ERROR NUMBER THREE:

The evidence is sufficient to support Appellant’s conviction for aggravated
robbery.




                                          7
                          Summary of the Argument

                     REPLY TO POINT OF ERROR NUMBER ONE:

      Photographs admitted into evidence were properly authenticated;
      therefore it was not error for the trial court to admit the photographs
      into evidence.


      The State introduced evidence sufficient to support a finding the photos were

authentic. The trial court did not err by admitting into evidence the still

photographs.

      Additionally, Anderson has failed to show that he was harmed in any way by

the admission of the photographs. The photographs are cumulative with and are

corroborated by other evidence presented at trial. In light of the overwhelming

evidence of Appellant’s guilt, still photos were not paramount to the State’s case.

Therefore, this Court can find beyond a reasonable doubt that the photos, if they

were constitutional error, did not contribute to Appellant’s conviction.



                     REPLY TO POINT OF ERROR NUMBER TWO:

Testimony by Officer Bradshaw did not introduce any evidence of prior bad acts or
extraneous offenses; therefore the trial court did not err in admitting the testimony.

      Appellant failed to properly preserve this point of error for review. However,

Officer Bradshaw’s testimony was restricted to his familiarity with the Appellant

without mention of how he knew him, which was used to establish a foundation for

                                          8
his identification of the Appellant as the suspect in the video of the robbery.

Bradshaw’s testimony did not introduce any prior bad acts or extraneous offenses,

therefore the trial court properly admitted his testimony.



                    REPLY TO POINT OF ERROR NUMBER THREE:

The evidence is sufficient to support Appellant’s conviction for aggravated
robbery.

      Viewing the evidence in a light most favorable to the verdict, this court can

find that a rational jury could have found beyond a reasonable doubt that the

Appellant committed aggravated robbery. The jury viewed the video and the

suspect who committed the robbery and was able to view the Appellant in the

courtroom themselves and made the determination the Appellant committed the

robbery. This all in spite of the fact the victim picked a different person in the

photo lineup. Because there is sufficient evidence that the Appellant was the

individual who committed the robbery, Appellant’s challenge to the sufficiency of

the evidence should be overruled.




                                          9
                                   Argument

                        Reply to Point of Error One

      Photographs admitted into evidence were properly authenticated;
      therefore it was not error for the trial court to admit the photographs
      into evidence.

      In point of error number one, the Appellant argues the trial court erred in

admitting still photographs over his objections. Appellant claims the photos were

not properly authenticated and therefore should have been excluded. However,

there was sufficient testimony and evidence for the trial court to make the

determination the photographs were authenticated. Therefore, the trial court did not

abuse its discretion in admitting the photographs over Appellant’s objections.

                           Argument and Authorities

A. Standard of Review

      The trial court is given wide discretion in evidentiary rulings. Appellate

courts review a trial court’s exclusion of evidence under an abuse of discretion

standard of review. A trial court has not abused its discretion unless it has acted

arbitrarily and unreasonably, without reference to any guiding rules or principles.

As long as the trial court’s ruling remains with the “zone of reasonable

disagreement,” there is not abuse of discretion and the trial court’s ruling will be

upheld.

                                        10
B. Application of Law to Facts

       “The trial court should admit proffered evidence ‘upon, or subject to the

introduction of evidence sufficient to support a finding of authenticity. The

ultimate question whether an item of evidence is what its proponent claims then

becomes a question for the fact-finder….The preliminary question for the trial

court to decide is simply whether the proponent of the evidence has supplied facts

that are sufficient to support a reasonable jury determination that the evidence he

has proffered is authentic. Evidence may be authenticated in a number of ways,

including by direct testimony from a witness with personal knowledge, by

comparison with other authenticated evidence, or by circumstantial evidence.”1

       The admissibility of a photograph is within the sound discretion of the trial

court.2 Generally, a photograph is admissible if verbal testimony as to matters

depicted in the photograph is admissible; in other words, if verbal testimony is

relevant, photographs of the same also are relevant.3 In this case, the photographs

were still shots of the suspect in the robbery. Verbal testimony as to the description

of the suspect actually committing the robbery is certainly admissible; therefore a

photograph of the suspect would likewise be admissible.

1
  Tienda v. State, 358 S.W.3d 633, 638-39 (Tex. Crim. App. 2012).
2
  Gallo v. State, 239 S.W3d 757, 762 (Tex. Crim. App. 2007), citing Williams v. State, 958
S.W.2d 186, 195 (Tex. Crim. App. 1997).
3
  Hill v. State, 392 S.W.3d 850, 856 (Tex. App.—Amarillo 2013, pet. ref’d.)
                                               11
      Appellant objected that a proper foundation had not been laid to authenticate

the photos and that it would be a violation of the confrontation clause if the person

who processed the photos was not present to testify. On appeal, the Appellant

appears to only urge the objection to the authentication of the photos. The State

will restrict its response to that argument.

      At trial, the Appellant stipulated to the introduction of the videotape of the

robbery taken by the store’s surveillance cameras. (R.R. Vol. 4, p. 28). However,

the Appellant chose to object to the still shots from the video. (R.R. Vol. 4, p. 29).

After viewing the video and the still shots, the court overruled Appellant’s

objections. The trial court stated its reason for overruling the objection, “[I]t’s

obvious these photographs are from the video, and the video has been admitted. I

don’t think their prejudicial value is going to outweigh their probative value, and I

think, as opposed to having to run back and forth and play the video over and over,

I think these will be helpful to the jury to identify whoever did do the robbery. So,

with that, I’m going to overrule your objection…” (R.R. Vol. 4, p. 36).

      The State introduced evidence sufficient to support a finding the photos were

authentic. The trial court properly ruled that the photographs would aid the jury in

determining the issue of the suspect’s identity and any prejudicial effect did not

outweigh their probative value. Therefore, it was not an abuse of discretion for the

trial court to admit the photographs into evidence.


                                           12
C. Harm Analysis

      Assuming, arguendo, the trial court erred in admitting into evidence the

photographs, such error does not constitute reversible error. Error in the admission

of evidence is non-constitutional error governed by Texas Rule of Appellate

Procedure 44.2(b). A non-constitutional error must be disregarded unless the

defendant's substantial rights are affected. A substantial right is affected under

Rule 44.2(b) when the error has a substantial and injurious effect or influence. A

criminal conviction should not be reversed for non-constitutional error if the

reviewing court, after examining the record as a whole, has fair assurance that the

error did not influence the jury, or had but a slight effect. From a review of the

record, this Court can have fair assurance that the error, if it was error, did not

influence the jury or had but a light effect. Therefore, any error in admitting the

photographs constitutes harmless error.

      The photos were introduced during the testimony of Arkansas State Police

Officer Scott Bradshaw. (R.R. Vol. 4, p. 32-36). Officer Bradshaw identified the

defendant as Lyndon Anderson and said he had known Mr. Anderson for several

years. (R.R. Vol. 4, p. 33). Officer Bradshaw viewed the video of the robbery and

identified Lyndon Anderson as the suspect in the video. (R.R. Vol. 4, p. 35).

The extent of the testimony relating to the photographs was minimal.




                                          13
      The still photographs were cumulative with the video of the robbery. The

photographs depicted the suspect as he was robbing the store, from a variety of

angles. Additionally, the photos were corroborated by the video and witness

testimony. Taking into account the overwhelming evidence of Appellant’s guilt,

this Court can find beyond a reasonable doubt that the admission of the

photographs into evidence, if it was a constitutional error, did not contribute to

Appellant’s conviction.

D. Conclusion

      The State introduced evidence sufficient to support a finding the photos were

authentic. The trial court did not err by admitting into evidence the still

photographs.

      Additionally, Anderson has failed to show that he was harmed in any way by

the admission of the photographs. The photographs are cumulative with and are

corroborated by other evidence presented at trial. In light of the overwhelming

evidence of Appellant’s guilt, still photos were not paramount to the State’s case.

Therefore, this Court can find beyond a reasonable doubt that the photos, if they

were constitutional error, did not contribute to Appellant’s conviction.

      For these reasons, Anderson’s first point of error should be overruled.




                                         14
                            Reply to Point of Error Two

      Testimony by Officer Bradshaw did not introduce any evidence of
      prior bad acts or extraneous offenses; therefore the trial court did not
      err in admitting the testimony.

      In his second point of error, the Appellant argues that the trial court erred in

allowing testimony from Officer Bradshaw. Appellant believes that Officer

Bradshaw’s testimony about his dealings with the Appellant over several years

amounted to the introduction of extraneous offense evidence. However,

Bradshaw’s testimony was restricted to his familiarity with the Appellant without

mention of how he knew him, which was used to establish a foundation for his

identification of the Appellant as the suspect in the video of the robbery.

Bradshaw’s testimony did not introduce any prior bad acts or extraneous offenses,

therefore the trial court properly admitted his testimony.

                            Argument and Authorities

A. Preservation of Error

      To properly preserve error with regard to evidence for appellate review, a

defendant must have made a timely request, objection, or motion, with sufficient

specificity to make the trial court aware of the nature of the complaint, and secure




                                          15
a ruling.4 As general rule, appellate courts will not consider any error which

counsel for the accused could have called, but did not call, to the attention of the

trial court at the time when such error could have been avoided or corrected by the

trial court.5 Furthermore, the objection raised on appeal must be the same as the

objection raised at trial.6 Where a trial objection does not comport with the issue

raised on appeal, error is not preserved for review and is waived.7

       Appellant claims the testimony of Officer Bradshaw was in violation of the

Appellant’s motion in limine, which was granted by the trial court. In general, the

grant or denial of a motion in limine does not preserve error.8 The purpose of a

motion in limine is to prevent the asking of prejudicial questions and making of

prejudicial statements in the presence of the jury.9 Grant of a motion in limine

merely precludes reference to the subject of the motion without first obtaining

ruling on admissibility of those matters outside the presence of the jury.10

       To preserve a claim of error for appellate review regarding the improper

admission of evidence, our law requires a party to object each time the allegedly



4
  Tex. R. App. P. 33.1(a); Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009).
5
  Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App. 1982).
6
  Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828 (2000);
Brasfield v. State, 30 S.W.3d 502, 505 (Tex. App. –Texarkana 2000, no pet.).
7
  Ibarra, 11 S.W.3d at 197; Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996), cert.
denied, 520 U.S. 1171 (1997); Brasfield, 30 S.W.3d at 505.
8
  Johnson v. Garza, 884 S.W.2d 831, 834 (Tex. App.—Austin 1994, writ denied).
9
  Sims v. State, 816 S.W.2d 502, 504 (Tex. App.—Houston [1st Dist.] 1991, writ denied).
10
   Id.
                                              16
inadmissible evidence is offered into evidence.11 A party is required to continue to

object each time inadmissible evidence is offered in order to preserve error, with

two exceptions that require counsel to either obtain a running objection, or request

a hearing outside the presence of the jury.12 Appellant failed to object each time

Officer Bradshaw testified about his prior contacts with the Appellant.

       In the present case, the testimony of Officer Bradshaw introduced no prior

bad acts or extraneous offenses committed by the Appellant. The State called

Officer Scott Bradshaw to testify that he was familiar with the Appellant and could

identify him. During Bradshaw’s testimony, he stated that he knew Lyndon

Anderson for several years and had several conversations with him it different

settings. The Appellant then objected :

              STATE:         And have you ever had a conversation with him inside of

       a vehicle?

              DEFENSE:              Objection, Your Honor. May we approach?

              THE COURT:            Wait before your answer. Wait.

              (AT THE BENCH, ON THE RECORD)




11
   Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Long v. State, 10 S.W.3d
389, 399 (Tex. App.—Texarkana 2000, pet. ref’d).
12
   See Martinez v. State, 98 S.W.3d 189 (Tex. Crim. App. 2003).
                                              17
             DEFENSE:            This stuff about a field setting, a vehicle setting,

he’s trying to get around the fact that he can’t get in that this individual was

arrested—

             STATE:        How many times he has seen this individual—

             DEFENSE:            And he’s already answered that question several

times. So I’ll object to cumulative.

             THE COURT:          And I understand what Mr. Elliot is trying to

dodge, and he’s dodged it well so far. So your objection is overruled. (R.R. Vol.

4, p. 34).

       The Appellant first made an objection that the State was trying to get around

the fact that Officer Bradshaw could not testify the Appellant had previously been

arrested. Construing this objection broadly, the trial court was possibly made aware

that Appellant had an objection that extraneous offense evidence was being

introduced. The trial court overruled the objection. The Appellant never made

another objection with specificity that Bradshaw was giving testimony about any

prior bad acts or extraneous offenses.

As to the first objection, Officer Bradshaw was never asked if he had arrested the

Appellant. That testimony was never illicited during Officer Bradshaw’s

testimony. The State carefully questioned Bradshaw regarding his prior dealings

with Appellant as to not introduce extraneous offense evidence.


                                          18
      The State continued its questioning of Officer Bradshaw and his familiarity

with the Appellant. Officer Bradshaw was then asked if he was present in the

courtroom when the video of the robbery was played and if he could identify the

individual in the video. (R.R. Vol. 4, p. 35). Officer Bradshaw testified the

individual was Lyndon Anderson. The Appellant then objected to the next

question:

      STATE:        And you base that on your many years of knowing him, your

many conversations with him, the many times that you stood this close to him?

             DEFENSE: Objection, leading.

             THE COURT:          Overruled.

      (R.R. Vol. 4, p. 35).

      The second objection from the Appellant was to a leading question. That is

not the complaint Appellant raises on appeal. On appeal, Appellant complains that

Officer Bradshaw’s testimony introduced extraneous offenses of the Appellant.

The objection raised on appeal must be the same as the objection raised at trial.

Because the second trial objection does not comport with the issue raised on

appeal, that specific objection fails to preserve any error for review.

      Because Appellant’s objections at trial were unspecific and do not comport

with his objections on appeal, error was not preserved for review. Alternatively,

because Appellant did not object each time that the testimony was introducing


                                          19
evidence of prior bad acts or extraneous offenses, error was not preserved for

review.

B. Standard of Review

       Should this court determine Appellant preserved this error for review, the

trial court is given wide discretion in evidentiary rulings.13 Appellate courts review

a trial court’s exclusion of evidence under an abuse of discretion standard of

review.14 A trial court had not abused its discretion unless it has acted arbitrarily

and unreasonably, without reference to any guiding rules or principles.15 As long as

the trial court’s ruling remains with the “zone of reasonable disagreement,” there is

not abuse of discretion and the trial court’s ruling will be upheld.16

C. Application of Law to Facts

       Appellant argues Officer Bradshaw’s testimony regarding his familiarity of

the Appellant introduced extraneous offense evidence and should have been

excluded at trial. However, on review of the record it is clear that Officer

Bradshaw never mentioned any specific occasions where he came into contact with

the Appellant which would amount to an extraneous offense. Appellant fails to

specify how Officer Bradshaw’s testimony that he has known and spoken with




13
   Williams v. State, 535 S.W.2d 637, 639-40 (Tex. Crim. App. 1976).
14
   Harris v. State, 152 S.W.3d 786, 793 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
15
   Harwood v. State, 961 S.W.2d 531, 536 (Tex. App.—San Antonio 1997, no pet.).
16
   See Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996).
                                              20
Appellant on many occasions elicited evidence of a prior bad act or extraneous

offense.

D. Conclusion

      Officer Bradshaw’s testimony that he had come into contact with the

Appellant multiple times over several years in office and field settings was

admissible at trial. His testimony did not introduce any prior bad acts or extraneous

offenses, therefore it was not error for the trial court to allow his testimony.

Therefore, Appellant’s second point of error should be overruled.



                       Reply to Point of Error Three

      The evidence is sufficient to support Appellant’s conviction for
      aggravated robbery.

      In his third point of error, the Appellant argues that because the victim

identified another individual as committing the robbery that the evidence was

insufficient to support his conviction. However, looking at the evidence in the light

most favorable to the verdict, a rational trier of fact could have found that the

Appellant was the suspect who robbed the Mo Money store.




                                         21
                               Argument and Authorities

A. Standard of Review

       In reviewing the sufficiency of the evidence, the reviewing court should

apply the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). This

standard requires a reviewing court to examine all the evidence in the light most

favorable to the verdict to determine whether a rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. 17 Further,

an appellate court presumes the fact finder resolved conflicting inferences in favor

of the verdict, and defers to that determination.18 The question is whether viewing

the evidence in the light most favorable to the verdict, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.19

B. Application of Law to Facts

       Appellant contends that although multiple other witnesses identified him as

the robber and the video of the robbery clearly depicting him was shown to the

jury, that the evidence was insufficient to sustain Appellant’s conviction. However,

looking at the evidence presented at trial in the light most favorable to the verdict,

any rational trier of fact could have found that the Appellant was the person who

committed the robbery beyond a reasonable doubt.


17
   443 U.S. 307, 319 (1979).
18
   Clayton v. State, 235 S.W.3d 772, 778(Tex. Crim. App. 2007).
19
   Jackson, 443 U.S. at 318-19.
                                             22
      At trial, the jury was shown surveillance video of the robbery of the Mo

Money store. (R.R. Vol. 4, p. 28, State’s Exhibit 2). The Appellant is seen on the

video entering the store four separate times on the same day. Each time he leaves

out the front door where the surveillance camera is located and there is a clear view

of his face. In addition, still photos taken from the video clearly showing the

suspect’s face during the robbery shown to the jury. (R.R. Vol. 4, p.36, State’s

Exhibits 3-7).

      The evidence elicited at trial included testimony from Officer Bradshaw of

the Arkansas State Police who was familiar with the Appellant and had known him

several years. Bradshaw identified the Appellant as the person who committed the

robbery. (R.R. Vol. 4, p. 36-37).

      Police Officer Robert Gentry also testified that he was very familiar with the

Appellant prior to the robbery. Officer Gentry also identified Appellant as the

suspect seeing robbing the Mo Money Store. (R.R. Vol. 4, p. 44).

      Ruth Leeper testified she was a friend of the Appellant and had loaned him

her white Honda Accord to drive on the date of the robbery, August 20, 2011.

(R.R. Vol. 4, p. 56-57). On the surveillance video, the Appellant is seen getting

into and out of a white Honda Accord outside of the Mo Money store. (State’s

Exhibit 2). Ms. Leeper testified that Appellant returned her car:




                                         23
      STATE:        Okay. Tell the ladies and gentlemen of the jury the

circumstances in which he returned your car?

      WITNESS: Baines came to my house – that’s his middle name. He came to

my house in the middle of the night, woke me up, and told me that he was

returning the car, that he parked it behind my house, that he did something stupid,

that he didn’t want to get into it because he didn’t want me involved, and that he

had to leave town. And that was it.

      (R.R. Vol. 4, p. 58).



      The victim, Charity Haworth, testified she was working as an office manager

at the Mo Money on the day of the robbery. (R.R. Vol. 4, p. 67-68). She testified

that the suspect came in the store three or four times. (R.R. Vol. 4, p. 69). Charity

testified that when the suspect was trying to break down the door to get into the

office area she was in fear of imminent bodily injury or death. (R.R. Vol. 4, p. 72-

73). Charity stated that she viewed a photo line-up a day or so after the robbery and

she did not correctly identify the person who robbed her. (R.R. Vol. 4, p. 78-79).

She testified that she picked the person because it was the closest to how she

thought he looked at the time. (R.R. Vol. 4, p. 79). Charity Haworth selected photo

number 5 in the lineup. (R.R. Vol. 4, p. 83). Detective Scott Sartor testified that the

Appellant’s photo was in position number 2 in the lineup, but that the picture was


                                          24
not a recent photo of the Appellant. (R.R. Vol. 4, p. 86). Detective Sartor stated

that he knew the victim had circled photo 5 in the lineup, but that he continued to

investigate. (R.R. Vol. 4, p. 87). Sartor viewed the surveillance video himself and

spoke with Bradshaw and Gentry regarding their identification of the Appellant in

the video. (R.R. Vol. 4, p. 87-88). Sartor testified that based on his viewing of the

video and his conversations with people personally acquainted with the Appellant

that it was his opinion the Appellant was the person who committed the robbery.

(R.R. Vol. 4, p. 88).

      The jury could have rationally concluded from the evidence that Appellant’s

assault of the victim was intended to facilitate the theft and therefore occurred in

the course of committing theft.

C. Conclusion

      Viewing the evidence in a light most favorable to the verdict, this court can

find that a rational jury could have found beyond a reasonable doubt that the

Appellant committed aggravated robbery. The jury viewed the video and the

suspect who committed the robbery and was able to view the Appellant in the

courtroom themselves and made the determination the Appellant committed the

robbery. This all in spite of the fact the victim picked a different person in the

photo lineup. Because there is sufficient evidence that the Appellant was the




                                         25
individual who committed the robbery, Appellant’s challenge to the sufficiency of

the evidence should be overruled.

      For the above-mentioned reasons, Appellant’s second point of error should

be overruled.




                                       26
                                  Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, there being legal and

competent evidence sufficient to justify the conviction and punishment assessed in

this case and no reversible error appearing in the record of the trial of the case, the

State of Texas respectfully prays that this Honorable Court affirm the judgment

and sentence of the trial court below.



                                               Respectfully Submitted:

                                               Jerry D. Rochelle
                                               Criminal District Attorney
                                               Bowie County, Texas
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819



                                               _/s/ Lauren N. Sutton___________
                                               By: Lauren N. Sutton
                                               Assistant District Attorney
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819
                                               Lauren.sutton@txkusa.org

                                               Attorneys for the State



                                          27
                             Certificate of Compliance

      I, Lauren N. Sutton, certify that, pursuant to Rule 9 of the Texas Rules of

Appellate Procedure, Appellee’s Brief contains 8,017 words, exclusive of the

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of

service, certification, certificate of compliance, and appendix.



                                               /s/ Lauren N. Sutton
                                               Lauren N. Sutton




                                          28
                              Certificate of Service

      I, Lauren N. Sutton, certify that I have served a true and correct copy of the

foregoing Brief for the State upon Ms. Kristian Young, Attorney for Appellant, on

this the 18th day of February 2015.



                                             __/s/ Lauren N. Sutton___________
                                             Lauren N. Sutton




                                        29
