                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00346-CR

WALTER HALL                                                          APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Walter Hall was convicted by a jury of aggravated robbery with a

deadly weapon and was sentenced to forty years’ confinement in the Texas

Department of Criminal Justice, Institutional Division. In two points, Hall argues

that (1) the evidence is insufficient to support his conviction and (2) the

identification procedure used to identify him violated his due process rights under

both the United States and Texas constitutions. Because we hold that the

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       See Tex. R. App. P. 47.4.
evidence is sufficient to support Hall’s conviction and because Hall failed to

properly preserve his challenge to the identification procedure, we affirm the

judgment of the trial court.

                               Sufficiency Challenge

      In his first point, Hall asserts that the evidence is insufficient to sustain a

verdict against him. Specifically, Hall claims an improper identification process

irrevocably tainted his conviction. Hall further argues that the items of physical

evidence introduced at trial fail to connect him to the robbery as a matter of law.

      In determining whether the evidence is sufficient to support a conviction, a

reviewing court must consider all the evidence, both direct and circumstantial, in

the light most favorable to the verdict to determine, based on that evidence and

reasonable inferences, whether a rational fact finder could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Gear v. State, 340 S.W.3d 743,

746 (Tex. Crim. App. 2011).       We defer to the jury’s weight and credibility

determinations because it is within the jury’s sole province to assess credibility,

resolve conflicts in testimony, and weigh the evidence. Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010). “Each fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of all

the incriminating circumstances is sufficient to support the conviction.” Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).




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      At trial, Fredy Gonzalez testified that while he was at home with his young

son and daughter on a summer evening, a large man entered his home uninvited

through the back door. Dressed in black pants, black shirt, and mask, the man

pointed a long .38 caliber black revolver at Gonzalez. He demanded money.

The man then removed the cash from Gonzalez’s wallet, which Gonzalez

testified was about $32.00, hit Gonzalez in the head, and shot at Gonzalez

twice. The gun made noises, but no bullets were fired. The man also searched

several rooms of the home.      In Gonzalez’s daughter’s bedroom, the robber

demanded jewelry without success. Ultimately, the robber took cash from the

wallet, a flat-screen Toshiba television, its remote control, and Gonzalez’s cell

phone with him when he exited the home.

      Gonzalez, with the aid of his neighbor, contacted the police, and several

police officers responded. Officer Matthew McMeans contacted Air One, the Fort

Worth Police Department’s helicopter, and requested helicopter support to locate

the individual. The remaining officers responding to Gonzalez’s call established

a search perimeter in the wooded area around Gonzalez’s home and, with the

help of the Air One helicopter, located a man without a shirt but otherwise

matching Gonzalez’s description of the intruder. When Air One shined its light on

the man, he ran. The police identified themselves and ordered the man to stop,

but he kept running. A chase ensued, and ultimately the man was tackled and

detained. During the detainment, the suspect was not compliant—kicking,




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fighting, yelling. A Toshiba remote control was found in the back pocket of the

suspect’s black pants. The suspect was later identified as Hall.

      Once Hall was restrained and in the police car, the police transported him

to Gonzalez’s home and asked Gonzalez to identify the suspect while the

suspect sat in the patrol car. Gonzalez testified, “I looked at him and he looked

just like him, because he had been wearing the black shirt and black pants, but at

the time that I saw him the second time, he was just wearing the plastic

[covering], but he looked exactly like him when he was wearing the black pants,

but at that time he was no longer wearing a mask.”

      A search of the area revealed a flat-screen Toshiba television in an open

field and a black, torn shirt hanging on a barbed wire fence. The officer who

found the shirt testified that the shirt was sweaty or damp and that he therefore

believed that the shirt had not been there long. Despite a search, no gun was

located; however, a later search of Hall’s pants pockets did reveal $26.00 in cash

and six .38 caliber bullets. Additionally, in a search of Gonzalez’s home, the

police found a hat near the back door that did not belong to Gonzalez.

Subsequent DNA testing on the hat matched Hall.

      Hall argues that the evidence is insufficient to prove he was the person

who robbed Gonzalez because the identification process used at the crime scene

was improper and because certain physical evidence admitted at trial was not

relevant or credible. We disagree. This court must evaluate all the evidence in

the record, whether admissible or inadmissible, when making a legal sufficiency


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determination. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013);

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529

U.S. 1131 (2000). Thus, regardless of whether Gonzalez’s identification of Hall

at the scene as his attacker was properly admitted, such evidence is properly

considered in a sufficiency review of the evidence. See Winfrey, 393 S.W.3d at

767; Dewberry, 4 S.W.3d at 740. Similarly, Hall’s complaint that certain items of

physical evidence were not relevant fails under a sufficiency challenge for the

same reason. See Winfrey, 393 S.W.3d at 767; Conner v. State, 67 S.W.3d 192,

197 (Tex. Crim. App. 2001). Finally, Hall’s credibility challenge to certain items of

physical evidence, such as the hat recovered at Gonzalez’s home, fails to

acknowledge or recognize that the jury is the sole judge of the credibility of

witnesses and of the strength to be given to the evidence. See Brooks, 323

S.W.3d at 899. It is “the responsibility of the trier of fact fairly 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.

      Here, the jury heard evidence that Hall, a man fitting Gonzalez’s

description of his attacker, was found running near the scene of the robbery soon

after the robbery.    The jury further heard evidence that Hall refused to stop

running when ordered by the police and that once he was detained, he had in his

back pants pocket the remote control stolen from Gonzalez’s home. Additionally,

the jury heard that Hall had approximately the same amount of cash in his

possession that Gonzalez had reported stolen from his wallet and six bullets in


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his pocket that were of the same caliber as the gun used in the robbery. Finally,

the jury heard that Hall’s hat was found at Gonzalez’s home and that Gonzalez

identified Hall as his attacker a short time after the crime. On this record, we

conclude that a jury could reasonably find beyond a reasonable doubt that Hall

committed aggravated robbery with a deadly weapon against Gonzalez. We

overrule Hall’s first point.

                               Identification Procedure

       In his second point, Hall argues that Gonzalez’s “show-up,” “one-on-one”

identification of him violated his due process rights under both the United States

and Texas constitutions. See Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct.

1967, 1972 (1967) (recognizing that based on totality of circumstances,

confrontation of accused for identification purposes may infringe due process

rights). Hall asserts that eyewitness identification carries great weight with a jury

yet, here, the identification was too suggestive to have credibility.

       The admissibility of evidence may be challenged in either of two ways: (1)

by objecting to the admission of the evidence at the time it is offered at trial and

requesting a hearing outside the presence of the jury; or (2) by filing a pretrial

motion to suppress evidence and having the motion heard and ruled on before

trial. Holmes v. State, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008). Here, Hall

failed to do either.     He filed a pretrial motion to suppress the identification

evidence as impermissibly suggestive and unreliable, but he did not obtain a

ruling on the pretrial motion. During trial, Hall raised no objection to Gonzalez's


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testimony concerning his identification of Hall at the scene.       To preserve a

complaint for appellate review, the record must show that the appellant made his

specific complaint known to the trial court by a timely request, objection, or

motion and that the trial court ruled on the request, objection, or motion. Tex. R.

App. P. 33.1(a); Ross v. State, 678 S.W.2d 491, 493 (Tex. Crim. App. 1984).

Because Hall did not obtain a ruling on his motion to suppress or object to the

identification evidence at trial, he has failed to preserve this issue for review.

See Tex. R. App. P. 33.1(a); Aguilar v. State, 26 S.W.3d 901, 905 (Tex. Crim.

App. 2000). We overrule Hall’s second point.

                                      Conclusion

      Having overruled Hall’s two points, we affirm the judgment of the trial court.




                                             PHYLIS J. SPEEDLIN
                                             JUSTICE

PANEL: MCCOY and MEIER, JJ.; and PHYLIS J. SPEEDLIN (Senior Justice,
Retired, Sitting by Assignment)

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

DELIVERED: September 12, 2013




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