Opinion issued August 29, 2014




                                    In The

                            Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-12-00996-CR
                          ———————————
                 CRAIG ANTHONY CROOKS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


             On Appeal from the 180th Judicial District Court
                          Harris County, Texas
                     Trial Court Case No. 1271233


                      MEMORANDUM OPINION

     A jury found Craig Anthony Crooks guilty of aggravated robbery with a

deadly weapon 1 and, enhanced with one prior felony conviction, assessed his


1
     See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011).
punishment at fifty years’ confinement. He argues that the evidence is insufficient

to support his conviction because the out-of-court and subsequent in-court

identifications resulted from impermissibly suggestive identification procedures

and the eyewitnesses gave conflicting descriptions of the assailant. We affirm.

                                   Background

      Three masked men demanding money and jewelry kicked in the door to

Alejandro DeLeon’s home, and he and his family were robbed at gunpoint. During

the robbery, Alejandro’s 11-year-old daughter, Alexis, grabbed a cell phone and

ran out of the house to a neighbor’s house and called the police. The three men

fled the DeLeon home with $3,000 to $5,000 in cash when they saw the police

arrive. Two of the men wore black ski masks, the other a white or black cloth

covering his mouth and chin. The following day, Alejandro reported to police that

he saw the man wearing the cloth covering his chin and mouth drive by the

DeLeons’ house in a silver Grand Prix. Alejandro and his wife, Paula, pursued the

man but were unable to obtain a complete license plate number.

      A few weeks later, Alejandro spotted the same man at a flea market and

pursued him in a car chase to obtain a license plate number. That same day,

Alejandro received several phone calls from the suspect who used a blocked

number. Sergeant Brasher, the lead investigator assigned to the case, determined

that the number used to call Alejandro was registered to appellant.



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      Using the evidence had gathered from her investigation, Sergeant Brasher

compiled photo spreads that included appellant’s picture for review by Alejandro,

Paula, and Alexis. After all three were given the same admonishments concerning

the identification procedure,2 they individually identified appellant as the man with

the cloth covering his chin and mouth who was at their home the night of the

robbery. Additionally, at trial, all three further identified appellant as the robber

with the partially covered face. Although there were numerous inconsistencies in

their testimony regarding the robbery, the only inconsistencies with regard to their

identification testimonies pertained to the color of the cloth or rag and appellant’s

head covering. Alexis testified that appellant had a black-colored cloth or rag

covering his mouth and chin and that he did not wear a hat or anything on his head

during the robbery, while Alejandro and Paula testified that the cloth or rag was

white and that he was wearing a dark hat during the robbery.

        The defense lodged no objection to the admissibility of either the in-court

or out-of-court identifications at trial and appellant does not that their admission


2
      Sergeant Brasher testified at trial as to the specific procedures she routinely takes
      when conducting photo spread identifications. She stated that in this case, she
      personally compiled three separate photo spreads of similar looking African-
      American males to ensure that no one photo necessarily stood out. Each photo
      spread contained a picture of a possible suspect for the robbery. Additionally,
      before showing the eyewitnesses the three photo spreads, she told them that they
      may not recognize anybody in them, they were under no obligation to recognize
      anyone, and the pictures in the photo spreads may be either older or more recent
      ones depending on what was available to her.


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was error. Rather, defense counsel argued in his closing that the State’s case was

“based upon eyewitness identification” and that, given the unreliable

identifications in this case, the State failed to prove its case against appellant

beyond a reasonable doubt. In particular, defense counsel pointed out the various

inconsistencies in Alejandro’s, Paula’s, and Alexis’ testimony regarding the

robbery and their descriptions of the robber with the cloth covering his mouth and

chin.      Defense counsel further questioned the veracity and reliability of

eyewitnesses’ identifications of appellant as one of the assailants, in light of

Alejandro’s and Paula’s encounter with appellant the day after the robbery (i.e.,

“[I]s their identification now coming from what they see the next day and not that

night?”)

                            Sufficiency of the Evidence

        Appellant argues that, based on the conflicting eyewitness descriptions and

Sergeant Brasher’s ‘impermissibly suggestive’ identification procedures, the in-

court and out-of-court identifications are tainted and no rational jury could have

found that appellant committed aggravated robbery with a deadly weapon beyond a

reasonable doubt and, thus, the evidence is insufficient to support his conviction.

Standard of Review

        We review evidentiary sufficiency challenges under the Jackson standard.

See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (“[T]he Jackson


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v. Virginia legal-sufficiency standard is the only standard that a reviewing court

should apply in determining whether the evidence is sufficient to support each

element of a criminal offense that the State is required to prove beyond a

reasonable doubt.”) (referring to Jackson v. Virginia, 443 U.S. 307, 319 99 S. Ct.

2781, 2789 (1979)). Under this standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

          Viewed in the light most favorable to the verdict, the evidence is insufficient

when either: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense; or (2) the evidence conclusively

establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 & n.11, 320, 99

S. Ct. at 2786, 2789 & n.11; Laster, 275 S.W.3d at 518. This standard applies

equally to both direct and circumstantial evidence. Laster, 275 S.W.3d at 518;

Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d).




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      We do not weigh any evidence or evaluate the credibility of any witnesses,

because this was the fact finder’s function. See Brooks, 323 S.W.3d at 899 (stating

jurors are exclusive judges of facts, witnesses’ credibility, and weight to be given

their testimony); see also Williams, 235 S.W.3d at 750.

Analysis

      The crux of appellant’s argument is that no rational jury could have found

that he committed the offense of aggravated robbery with a deadly weapon beyond

a reasonable doubt because the only evidence linking him to the robbery (i.e., the

eyewitnesses’ in-court and out-of-court identifications) was unreliable due to the

impermissibly suggestive identification procedures and conflicting eyewitness

testimony.

      It is well-established that the testimony of a sole witness to an offense may

constitute sufficient evidence to support a conviction. See Aguilar v. State, 468

S.W.2d 75, 77 (Tex. Crim. App. 1971) (upholding conviction for assault with

intent to murder where only one witness saw defendant with gun); Shah v. State,

414 S.W.3d 808, 814 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (affirming

conviction for continuous family violence based primarily on testimony of

complaining witness); Davis v. State, 177 S.W.3d 355, 358–59 (Tex. App.—

Houston [1st Dist.] 2005, no pet.) (affirming conviction for aggravated robbery

where central issue involved credibility of single witness). It is equally true that



                                         6
inconsistent or contradictory testimony does not render the evidence insufficient; it

simply creates an issue of fact for the jury to determine. See Shah, 414 S.W.3d at

814 (stating that jury is sole judge of weight and credibility of witness testimony

and it was within jury’s province to resolve any alleged inconsistencies or conflicts

in eyewitnesses’ testimony).

      At trial, Alejandro, Paula, and Alexis all positively identified appellant as

the robber with the cloth over the bottom half of his face. Their out-of-court

identifications from the photo spread were also admitted.         While there were

inconsistencies as to the color of the cloth or rag covering appellant’s mouth and

chin, and whether he wore a hat, it was the jury’s province to resolve those

conflicts or inconsistencies, and we must defer to the jury’s resolution of these

issues. See Brooks, 323 S.W.3d at 899 (stating jurors are exclusive judges of facts,

credibility of witnesses, and weight to be given to witnesses’ testimony and

appellate courts must defer to jury’s determinations on these issues); see also Petro

v. State, 176 S.W.3d 407, 412–13 (Tex. App.—Houston [1st Dist.] 2004, pet.

ref’d) (affirming conviction for aggravated robbery where witnesses’ testimonies

conflicted as to robber’s clothing and physical characteristics; holding that such

discrepancies were fact issue for jury). The jury also heard testimony regarding

the identification procedures Sargent Brasher used and defense counsel’s argument

that the identifications could have been tainted by their encounters with appellant



                                         7
after the robbery. As the sole fact finder, however, the determination of how much

weight and credibility to afford the witnesses’ testimony was the jury’s and we

must defer to those resolutions. See Brooks, 323 S.W.3d at 899.

      Viewing all the evidence in the light most favorable to the verdict, we

conclude that a rational jury could have found beyond a reasonable doubt that

appellant committed the offense of aggravated robbery with a deadly weapon. See

id. Accordingly, we hold that the evidence is sufficient to support appellant’s

conviction.

                                    Conclusion

      We affirm the trial court’s judgment.




                                               Jim Sharp
                                               Justice


Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).




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