Affirmed as Modified and Opinion Filed July 13, 2018




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00659-CR

                             DAVE ESTER NEWMAN, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 195th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1630710-N

                              MEMORANDUM OPINION
                         Before Justices Francis, Fillmore, and Whitehill
                                  Opinion by Justice Whitehill
       A jury convicted appellant of aggravated robbery. He pled true to an enhancement and the

jury assessed punishment at thirty years imprisonment.

       In four issues, appellant argues that (i) the evidence is insufficient to support his conviction;

(ii) the trial court erred by admitting evidence of his jail calls because the evidence was not

authenticated; and (iii) the judgment should be reformed to reflect the statutory reference for

enhancement, that he pled true to the enhancement, and the jury found it true.

       We conclude the evidence is sufficient to support the conviction. Among other things,

appellant’s DNA matched items recovered at the scene and his fingerprints matched those found

on the stolen car. The jail calls were properly authenticated, because there was sufficient evidence

to establish that the calls were what they purported to be. As to modifying the judgment, the
statutory reference to enhancement is not required, but we modify the judgment to reflect that

appellant pled true to the enhancement and the jury found it true. As modified, we affirm the trial

court’s judgment.

                                        I. BACKGROUND

       A man jumped into Luis Diaz’s car, threatened him with a knife, beat him, and stole the

car. Appellant’s DNA matched the DNA on a beer can and a cigarette butt recovered at the scene,

and his fingerprints matched the fingerprints lifted from the vehicle. Appellant also made calls

from the jail in which he said he had gotten into a fight with someone, was in a lot of trouble, and

would have to come up with a good story.

       A jury found appellant guilty of aggravated robbery, found an enhancement true, and

assessed punishment at thirty years imprisonment.

                                          II. Analysis

A.     First Issue: Is the evidence sufficient to support the conviction?

       Appellant’s first issue argues the evidence is insufficient to support his conviction because

it does not prove he was the person who committed the robbery. We disagree.

       We review the sufficiency of the evidence to support a conviction by viewing all of the

evidence in the light most favorable to the verdict to determine whether any rational fact finder

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

Virginia, 443 U.S. 307, 319 (1979).

       This standard gives full play to the fact finder’s responsibility to resolve testimonial

conflicts, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts.

Id. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). And the fact finder is

the sole judge of the evidence’s weight and credibility. See TEX. CODE CRIM. PROC. art. 38.04;

Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).


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       Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the

weight and credibility of the evidence and substitute our judgment for that of the factfinder’s. See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine

whether the necessary inferences are reasonable based upon the cumulative force of the evidence

when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must

presume that the factfinder resolved any conflicting inferences in the verdict’s favor and defer to

that resolution. Id. at 448–49. The standard of review is the same for direct and circumstantial

evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt.

Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).

       To establish that appellant committed aggravated robbery under the facts of this case, the

State was required to prove that appellant committed robbery while using or exhibiting a deadly

weapon. See TEX. PENAL CODE §29.03(a)(2). As relevant here, a person commits robbery if he

intentionally or knowingly threatens or places another in fear of imminent bodily injury or death

while in the course of committing theft. Id. §29.02(a)(2).

       The evidence established that Luis Diaz was stopped at a red light with his windows rolled

down when a man drinking a beer and smoking a cigarette jumped in his car. Diaz was nervous,

scared, and feared for his life. The man told him to turn left, but Diaz turned right toward a court

building he had seen previously.

       When Diaz pulled into the parking lot, the man pulled out a knife, grabbed the steering

wheel, and hit Diaz. The man cut him under the chin with the knife. Diaz knocked the knife away

but the man jumped into the front seat and hit him in the face. Diaz took off his seatbelt and got

out. When Diaz threw himself out of the car, the man jumped on top of him and dropped the beer

he had been drinking. The man then stole Diaz’s car. But before the man left, he did something

to Diaz’s ears that left him unconscious for about three minutes.

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       Christopher Orozco testified that he was sitting at a stoplight when he saw a blue Nissan

Altima coming out of the municipal court area and make a sharp turn. There was a Hispanic man

half inside and half outside the vehicle trying to get it back. A black man was inside the vehicle

hitting the Hispanic man several times “with an object.” Orozco called 911. The black man pushed

the Hispanic man out of the car and the Hispanic man rolled onto the concrete. The black man

jumped into the driver’s seat of the car and took off. Orozco helped the Hispanic man on the

ground, who said, “hey, my car, my car. He took my car.” Orozco could not be “one hundred

percent positive” that the object he saw in the black man’s hand was a knife.

       When the police arrived, Diaz was sitting on the side of the road covered in blood. He had

abrasions and bruising on his face, bleeding from his ear, a cut on his chin, and road rash on his

arm.

       The police recovered a brown paper bag, a beer can, and a cigarette butt at the scene. The

police also put a ping on Diaz’s cell phone, which was in the car. The car was found abandoned

in an alleyway later that evening.

       Latent fingerprints were lifted from the front driver and passenger exterior of Diaz’s car.

Fingerprint examiner Amanda Self identified the prints as appellant’s palm print. Self also

developed a latent print from the brown paper bag and identified it as appellant’s right ring

fingerprint.

       The beer can and cigarette butt were sent to the Southwestern Institute of Forensic Sciences

for testing. The DNA analyst testified that appellant’s DNA profile matched the DNA samples

taken from the cigarette butt and the beer can. According to the analyst, only one in 3.81 trillion

persons would have that DNA profile.

       Detective David McCoy spoke to appellant when he executed the DNA search warrant.

He later obtained a list of calls appellant made from jail and the recordings from those calls. In

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those calls, appellant said he had been in a fight with someone near a courtroom, was in a lot of

trouble, and would have to come up with a good story.

           Appellant points to the fact that neither Diaz nor Orozco could identify him in a line-up,

and no other witnesses placed him at the scene. But viewing all of the evidence in a light most

favorable to the verdict, including Diaz’s and Orozco’s testimony, the fingerprint and DNA

evidence, and appellant’s jail calls, we conclude that a rational jury could have found beyond a

reasonable doubt that appellant was guilty of aggravated robbery. See Gardner v. State, 306

S.W.3d 274, 285 (Tex. Crim. App. 2009) (victim need not positively identify defendant as

perpetrator if other evidence of his identity exists). We therefore resolve appellant’s first issue

against him.

B.         Second Issue: Did the trial court erroneously admit jail-call evidence?

           During the guilt/innocence phase, the State introduced exhibits 65 and 66 through

Detective McCoy’s testimony. Exhibit 65 was a list of calls made from the jail on a specific date,

and exhibit 66 had recordings of appellant’s calls. Defense counsel objected that the State had

“not laid the proper predicate for the jail calls,” but the exhibits were admitted.

           Appellant’s second issue argues that “Exhibits 65-67 were jail calls” that were erroneously

admitted for lack of a proper predicate. Exhibit 67, however, was a google map, and appellant’s

argument pertains only to jail calls. We therefore confine our discussion to exhibits 65 and 66.1

           We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). Abuse of discretion occurs

only if the decision is “so clearly wrong as to lie outside the zone within which reasonable people

might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). We will uphold


      1
        To the extent that appellant also intended to argue that the Google map was erroneously admitted, we reject that argument as inadequately
briefed. See TEX. R. APP. P. 33.1.



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an evidentiary ruling if it was correct on any theory of law applicable to the case. De La Paz v.

State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

       Rule 901 provides:

       To satisfy the requirement of authenticating or identifying an item of evidence, the
       proponent must produce evidence sufficient to support a finding that the item is
       what the proponent claims it is.

See TEX. R. EVID. 901(a). The second part of the rule includes non-exclusive examples of

authentication conforming to the rule’s requirements, including “testimony of a witness with

knowledge” and “voice identification.” See TEX. R. EVID. 901(b).

       McCoy testified that jail inmates are assigned a PIN identification number. When inmates

use the phone, they must use the PIN. In addition, the inmate is prompted to identify himself at

the beginning of a call.

       McCoy requested the list of calls appellant made on May 25. The call file list he received,

exhibit 65, showed appellant’s name (Dave Newman) and PIN number, the phone number called,

the time of the call, and the call’s duration. The list showed six calls, three of which were included

on Exhibit 66. In addition, McCoy had spoken with appellant and listened to the calls, and believed

it was appellant’s voice on the recorded calls because of the context of the conversation and

because the caller identified himself as “Dave.”

       Based on McCoy’s testimony and the call file list showing that appellant was the person

on the recorded calls, it was not outside the zone of reasonable disagreement for the trial court to

conclude that a reasonable juror could find the evidence was what the State purported it to be. See

TEX. R. EVID. 901(a); Morris v. State, 460 S.W.3d 190, 196 (Tex. App.—Houston [14th Dist.]

2015, no pet.). Accordingly, we resolve appellant’s second issue against him.




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C.     Third and Fourth Issues: Should the judgment be reformed?

       Appellant’s third and fourth issues argue that the judgment should be reformed because it

omitted the citation for the enhancement statute and erroneously stated that the enhancement

paragraph was not applicable. The State agrees that the judgment should be reformed to show that

appellant pled true to the enhancement paragraph and the jury made a finding of true to that

paragraph, but does not agree that the judgment needs to reference the enhancement statute.

       We have the authority to correct the trial court’s judgment to make the record “speak the

truth” when we have the necessary data and information to do so. See TEX. R. APP. P. 43.2; Asberry

v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d).

       Here, the judgment shows that the plea to the enhancement paragraph and the findings on

the enhancement are “N/A” and the statute for the offense is “TEX. PENAL CODE § 29.03.”

       The record reflects, however, that appellant pled true to the enhancement and stipulated

that the copies of the prior judgment and conviction were true and correct. The record further

reflects that the jury found the enhancement paragraph true. Therefore, the judgment should be

modified to reflect that appellant pled true to the enhancement and the jury found it true.

       Regarding citation of the enhancement statute, appellant was indicted for and found guilty

of aggravated robbery pursuant to TEX. PENAL CODE § 29.03. The judgment correctly references

this statute in the space designated for “statute for the offense.” Appellant urges, however, that

the enhancement statute, TEX. PENAL CODE §12.42(a), also be included in the judgment. We are

not persuaded.

       Specifically, the code of criminal procedure lists the items that must be included in a

judgment, and the statutory authority for enhancement is not on that list. TEX. CODE CRIM. PROC.

art. 42.01. The Office of Court Administration is charged with conforming these requirements in




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a standard felony judgment. See TEX. CODE CRIM. PROC. art. 42.01§4. The enhancement statute

has not been included on that form.

       Therefore, we resolve appellant’s third issue against him and sustain his fourth issue. We

modify the judgment to reflect that appellant pled true to the enhancement and the jury found it

true. As modified, the judgment is affirmed.




                                                 /Bill Whitehill/
                                                 BILL WHITEHILL
                                                 JUSTICE
Do Not Publish
TEX. R. APP. P. 47
170659F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 DAVE ESTER NEWMAN, Appellant                       On Appeal from the 195th Judicial District
                                                    Court, Dallas County, Texas
 No. 05-17-00659-CR         V.                      Trial Court Cause No. F-1630710-N.
                                                    Opinion delivered by Justice Whitehill.
 THE STATE OF TEXAS, Appellee                       Justices Francis and Fillmore participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to reflect that appellant pled true to the enhancement paragraph and the jury found it true.
As REFORMED, the judgment is AFFIRMED.


Judgment entered July 13, 2018.




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