                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00120-CR


JOSHUA SHAMAR                                               APPELLANT
SNEED A/K/A JOSHUA
S SNEED

                                         V.

THE STATE OF TEXAS                                               STATE


                                     ------------

         FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                     ------------

                      MEMORANDUM OPINION 1

                                     ------------

                                  I. Introduction

     In two issues, Appellant Joshua Shamar Sneed a/k/a Joshua S Sneed

appeals his conviction of two counts of aggravated robbery with a deadly

weapon. We affirm.




     1
      See Tex. R. App. P. 47.4.
                           II. Procedural Background

      A jury found Sneed guilty of the aggravated robbery of Horacio Martinez

and Humberto Lopez while using or exhibiting a deadly weapon (a firearm) on or

around March 15, 2011, and assessed his punishment at eight years’

confinement on each count. See Tex. Penal Code Ann. § 29.03(a)(2) (West

2011). The trial court rendered judgments accordingly, and this appeal followed.

                         III. Sufficiency of the Evidence

      In his first issue, Sneed argues that the trial court erred by denying his

motion for an instructed verdict because there was insufficient evidence to

identify him as the perpetrator.

      A challenge to the denial of a motion for instructed verdict is actually a

challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690,

693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003). In our due-process

review of the sufficiency of the evidence to support a conviction, we view all of

the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact 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); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).

A. Evidence

      Lopez and Martinez testified that on March 15, 2011, they had arranged to

meet at a car wash about a car that Martinez had posted for sale. Martinez said



                                        2
that the area was well-lighted from the car wash’s lights, traffic lights, and cars

driving by with their lights on.

      While Martinez waited for Lopez to arrive, he saw three or four people near

the apartments behind the car wash; one of them crossed the street to the gas

station. Martinez said that the person who crossed the street was wearing blue

“sporty-type” shorts and a black hooded sweatshirt, had a dark complexion, and

wore his hair in a “ponytail on top.” He later identified that person as Sneed.

      Lopez arrived, decided to buy the car, and sent his brother to get the

money for it. Lopez and Martinez waited at the car wash, standing outside the

car, for around fifteen minutes. During that time, a man approached with a pistol

in his hand, pointed it at Martinez and Lopez, and demanded their money and

cell phones, scaring the two men into following his orders. Martinez said that the

man, whom he identified as Sneed, had stood around two feet from him and had

approached from the gas station across the street. Lopez described the gunman

as wearing a black sweatshirt and blue shorts, with hair that was “somewhat

long” and tied up on top of his head.

      After taking the men’s property, the gunman walked away in the direction

of the apartment complex behind the car wash. After he departed, Lopez and

Martinez crossed the street to the gas station to call the police. Somphors Chao,

whose family owned the gas station, stated that when a “clean-cut” Hispanic man

came in and asked to use the phone, Chao told him that he would dial the

number, and the man told him, “9-1-1.” Chao asked him what had happened,

                                         3
and the man told him that he had been robbed. Chao asked him where, they

went outside, and the man pointed towards the car wash across the street.

      Chao called 9-1-1, and police arrived around ten to fifteen minutes later.

Fort Worth Police Officer George Rusnak arrived around 9:56 p.m.              Upon

arriving, he made contact with Martinez, who gave him a general description of

the robber’s clothing, hair, and size. After issuing a description over the radio,

Officer Rusnak asked Chao for the store’s surveillance videos, and Chao let him

see them.

      The trial court allowed State’s Exhibit 15, a composite of the relevant

portions of the surveillance videos, to be published to the jury. State’s Exhibit 15

starts at 10:35 p.m. (actually, 9:35 p.m.) 2 and shows a young black male wearing

a black hooded sweatshirt, long blue shorts, and his hair in a ponytail on top of

his head, walking into the store. Inside, he encounters two young men, who he

appears to know. At 10:38 p.m. (9:38 p.m.), he walks back outside with the two

young men, and at approximately 10:40 p.m. (9:40 p.m.), he reaches the street;

the car wash’s lights are visible directly across the street.

      Officer Rusnak and Chao watched the videos first; once they determined

that there were some people wearing clothing matching the description reported

by Martinez and Lopez, they brought Martinez and Lopez in to see if they could


      2
        Chao explained that although the time stamp on State’s Exhibit 15 shows
that it was made around 10:30 p.m., because of daylight savings time, the actual
time of the taping was around 9:30 p.m.

                                          4
identify the robber. Martinez said that he recognized the robber from the video.

Lopez stated that he identified the robber on the videotape based on his

appearance, his clothing, and his hair. 3 Officer Rusnak said that while he and

Chao watched the video, Chao told him that he knew two of the people in the

video because they had been issued criminal trespass warnings. Officer Rusnak

pulled up the criminal trespass report to obtain the addresses of the suspects in

that case. He went to the address listed in the report and met with two juveniles

listed in the report and their mother, but the two juveniles denied knowing anyone

who fit the robber’s description.

      Fort Worth Police Detective Lorne Tracy testified that he received the case

on March 16. He contacted Chao to obtain the surveillance video on March 18

and had his initial meetings with Martinez and Lopez on March 21. He sent the

surveillance video to the digital computer lab to break the images into still photos,

then gave the photos to the crime analysis unit so they could be included in a

crime bulletin about the offense, which went out on March 28.

      Fort Worth Police Officer Miguel Vargas, a neighborhood patrol officer,

stated that on March 29, he saw a crime bulletin about the offense, which

contained a photograph of the alleged perpetrator. The photograph was a store

surveillance video photo of a black male wearing a black hoodie-type shirt and a


      3
       Chao described the person identified as the robber as someone who had
been in the store earlier, wearing a black sweater or shirt with baby blue shorts
and with his hair “in a high ponytail.”

                                         5
ponytail. Officer Vargas pulled up the offense report, saw the names listed on it,

recognized one of them as an associate or friend of Sneed, and thought that the

photo looked like Sneed. Sneed lived in Officer Vargas’s patrol area, and he

recalled that Sneed had been wearing a ponytail around a month before the

offense. Officer Vargas called Detective Tracy and told him that he thought the

suspect in the report was Sneed. Officer Vargas identified Sneed at trial.

      After Officer Vargas contacted him about Sneed, Detective Tracy created

photo lineups, one of which included Sneed’s photo.        He showed the photo

lineup to Martinez on April 1, and Martinez identified Sneed as the robber. On

April 15, Detective Tracy showed the lineup to Chao, who identified Sneed as the

person who had been inside the store on March 15. Lopez tentatively identified

Sneed from the photo lineup.

      During the defense’s case, Felicia Wilkerson, Sneed’s mother, testified that

on the evening of March 15, Sneed was at home watching DVDs with his family

between 8:45 or 9:00 p.m. and 11:00 p.m. or 12:30 a.m. Wilkerson said that it

was a mile to a mile and a half from their home to the gas station. She testified

that during that time, Sneed had been trying to grow his hair out.

      During cross-examination, Wilkerson said that Sneed’s biological father

lived in Burleson and that her husband was Sneed’s stepfather.          When the

prosecutor asked Wilkerson whether she had ever seen Sneed or one of her




                                         6
other sons hang out with A.E. or M.A., 4 Wilkerson said that she did not know

“those young men.” Wilkerson said that she contacted Detective Tracy after she

visited Sneed in jail and told the detective that there was no way that Sneed

“could have done what he’s been accused of because he was home.”

      After Sneed closed his case, the State recalled Detective Tracy, asked him

about his interview with Sneed on April 15, and published the redacted audiotape

of that interview. 5   Detective Tracy testified that he gave Sneed his Miranda

warnings, that Sneed appeared to understand them, and that Sneed then

voluntarily waived his right to remain silent. Detective Tracy testified that he

showed photos from the video surveillance to Sneed, as well as photos of M.A.

and A.E., and that he did not recall Wilkerson contacting him at any point during

his investigation. He also stated, and the audiotape confirms, that Sneed told

him that he had been at his father’s house in Burleson. Detective Tracy said that

his impression was that Sneed understood his questions and was just trying to

figure out what the detective knew.




      4
       We use initials to protect the juveniles’ identities.
      5
       Outside of the jury’s presence, the State sought to admit the audiotape of
Sneed’s interview with Detective Tracy in response to Wilkerson’s testimony
about Sneed’s alibi. Prior to its admission, the statement was redacted to
remove references to Sneed’s prior criminal record, extraneous offenses, and the
detective’s statements that were not part of the interview. Sneed objected to the
admission of the redacted audio recording, but the trial court overruled his
objections and granted him a running objection.

                                           7
B. Analysis

      Relying on Johnson v. State, 978 S.W.2d 703, 707 (Tex. App.—Corpus

Christi 1998), aff’d, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000), Sneed argues that

the evidence is insufficient because Lopez could not positively identify him and

failed to make an in-court identification of him and posits that Martinez’s positive

identification “may have been impermissibly tainted by watching the videotapes

of the convenience store.” He further complains that this evidence conflicts with

his mother’s testimony that Sneed was with her on the night of the robbery.

      In Johnson, the court of criminal appeals reviewed the factual sufficiency

standard set out in Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App.

1996), and upheld the Corpus Christi court’s reversal of an aggravated sexual

assault conviction based on the factual insufficiency of the evidence. 23 S.W.3d

at 4, 7–12. In that case, the complainant had testified that after a man wearing a

ski mask and gloves carjacked her, he blindfolded her and forced her into the

passenger’s seat before he drove her to a remote location and raped her. Id. at

4. The perpetrator removed his mask when he ordered her to perform oral sex,

but although the car’s headlights remained on, he never stood in front of the

lights, and the complainant never had a lengthy, unobstructed view of his face

and could only provide scant details of his overall appearance, including that he

was uncircumcised. Id. The complainant was unable to positively identify the

perpetrator after viewing several photo lineups, and the Corpus Christi court

concluded that the additional evidence was insufficient to support his conviction.

                                         8
Id. at 5–6. That evidence included DNA evidence that put the appellant within the

8.5% of the black male population that could have contributed the semen on the

complainant’s dress, the appellant’s familiarity with the area where the assault

occurred, the fact that he lived relatively close to the complainant’s home, the

fact that he was uncircumcised, and the fact that he escaped from jail while

awaiting trial. Id.

       In his dissent, Presiding Judge McCormick stated, “We should seize this

opportunity to remove the judicially-inflicted Clewis opinion from the body of

Texas jurisprudence.” Id. at 12 (McCormick, P.J., dissenting) (footnote omitted).

That is exactly what the court did ten years later in Brooks v. State, 323 S.W.3d

893, 895, 912 (Tex. Crim. App. 2010) (overruling Clewis, 922 S.W.2d at 131–32).

       Notwithstanding the fact that we no longer apply a factual sufficiency

review in criminal cases, Johnson is distinguishable on other bases as well. The

complainant in that case specifically stated, “It was dark. I was blindfolded. I

was so scared. He had a ski mask on most of the time. I didn’t take a look at

him very good,” and she stated that she had not thought she would have a

chance to identify him. Johnson, 23 S.W.3d at 5. In contrast, in addition to

identifying Sneed from a photo lineup and at trial, Martinez testified about the

clothing Sneed wore on the night of the robbery—blue shorts and a black hooded

sweatshirt—and noted that the man’s hair was held up in a ponytail on top of his

head. Lopez also described the robber’s attire and hairstyle in the same way,

and Chao recognized the robber when Martinez pointed him out because the

                                       9
robber had been in the store earlier, wearing a black sweater or shirt with baby

blue shorts and his hair in a “high ponytail.” Martinez testified that the area was

well-lighted, even though it was nighttime, and that the robber only stood two feet

away from them. And the timing matches up: Sneed was videotaped in the gas

station at around 9:35 p.m., departing at 9:40 p.m., and the robbery occurred

between that time and 9:56 p.m., when the police arrived to investigate.

Although Sneed’s mother testified that her son was home with her that night,

Sneed stated in his interview with Detective Tracy that he was at his father’s

house in Burleson that night.

      The jury was entitled to disbelieve Sneed’s mother’s testimony, particularly

in light of the conflict between her testimony and Sneed’s own statement, and to

find credible the identifications made after the offense and at trial. Because the

sufficiency standard gives full play to the jury’s responsibility to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts, and because we must presume that the factfinder

resolved any conflicting inferences in favor of the verdict and defer to that

resolution, we conclude that the evidence, viewed in the light most favorable to

the verdict, is sufficient to support Sneed’s identification and conviction. See

Jackson, 443 U.S. at 319, 326, 99 S. Ct. at 2789, 2793; Blackman v. State, 350

S.W.3d 588, 595 (Tex. Crim. App. 2011). Therefore, we overrule his first issue.




                                         10
                            IV. Preservation of Error

      In his second issue, Sneed complains that the trial court abused its

discretion by admitting State’s Exhibit 18 and by allowing Detective Tracy to

testify about the in-custody interrogation.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333,

339 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort

Worth 2012, no pet.). The trial court must have ruled on the request, objection,

or motion, either expressly or implicitly, or the complaining party must have

objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Pena v.

State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011).         Further, a trial court’s

erroneous admission of evidence will not require reversal when other such

evidence was received without objection, either before or after the complained-of

ruling. Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (citing

Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)), cert. denied, 131

S. Ct. 905 (2011); Lane v State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004).

      Although Sneed argues that he objected to the State’s recall of Detective

Tracy, the record does not reflect that he raised any objections other than to the

admission of State’s Exhibit 18, the interview recording.       And although he

complains that there “was an insinuation in the testimony and on the recording”

                                         11
of what Sneed’s father would say when he was not available to testify or be

cross-examined, Sneed did not object during Detective Tracy’s testimony. 6 See

Tex. R. App. P. 33.1; Estrada, 313 S.W.3d at 302 n.29. Therefore, we overrule

his second issue.

                                 V. Conclusion

      Having overruled both of Sneed’s issues, we affirm the trial court’s

judgments.

                                                  PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and GABRIEL, J.

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

DELIVERED: August 22, 2013




      6
       Even if Sneed had objected to Detective Tracy’s testimony, what Sneed
told him was not hearsay. See Tex. R. Evid. 801(e)(2)(A) (stating that a
statement is not hearsay if it is offered against a party and is the party’s own
statement). Although Sneed argues that the purpose of State’s Exhibit 18 was to
use his statement that he was at his father’s house “when he had specifically
invoked his Fifth Amendment right not to incriminate himself,” State’s Exhibit 19,
which was admitted without objection, contains the Miranda warnings that Sneed
received and waived before the interview.

                                       12
