      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00101-CR
                                        NO. 03-10-00102-CR



                                    Curtis Mayes Jr., Appellant

                                                  v.

                                    The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
                   NOS. D-1-DC-09-904090 & D-1-DC-09-904091
             HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 In two causes, a jury convicted appellant Curtis Mayes Jr. of the offense of robbery.

See Tex. Penal Code Ann. § 29.02 (West 2003). In each cause, punishment was assessed at 29 years’

imprisonment, with the sentences to run concurrently. In three points of error on appeal, Mayes

challenges the admissibility of his pretrial and in-court identifications by the robbery victims

and asserts that the evidence is factually insufficient to sustain his convictions. We will affirm

the judgments.


                                          BACKGROUND

                 The State alleged that Mayes committed three aggravated robberies during the

early morning hours of February 14, 2009. Three indictments were filed, each corresponding to one

of the three victims: Mohamed Anany in cause number D-1-DC-09-904092; Alejandro Hernandez
in cause number D-1-DC-09-904091; and David Baker in cause number D-1-DC-09-904090. The

causes were consolidated for trial.

               Each of the three victims testified. Mohamed Anany, a taxicab driver, testified that at

some time between 3:00 a.m. and 4:00 a.m., he had just finished his shift and stopped at a gas station

to purchase some items from the convenience store. As he exited the store and walked toward his

car, Anany was approached by a man with a gun who had been hiding behind Anany’s vehicle.

According to Anany, the man pointed the gun at his face and said, “Give me your money.” Anany

estimated that the man was approximately two feet away from him while he held the gun to his

face and demanded money. Immediately thereafter, Anany recalled, another man “came around

and started reaching for my pockets.” This other man grabbed “a big wad of cash” from Anany’s

pants pocket. Meanwhile, the gunman continued to demand money from Anany until Anany told

him, “Your friend took it, dude.” The gunman and the other man then ran off toward a car that

was parked in a driveway located between the gas station and an adjacent shopping center and

drove away.

               Anany described the getaway vehicle as “a foreign car, a small, green car,” with

a license plate number that included the letters “DPS.” Anany described the gunman as a “skinny

African American, tall. I would not say taller than average; maybe 5'10", 5'11", maybe almost 6',

and wearing blue jeans and a gray shirt, long-sleeve gray shirt.” The gun, according to Anany, “did

not look real,” but “look[ed] like a BB gun.”

               The second victim was Alejandro Hernandez, who testified that he was robbed

while standing outside a Home Depot at approximately 5:45 a.m. According to Hernandez, he was



                                                  2
approached by a man holding a gun who yelled, “Hold them up, dude. Let me see your money.”

Hernandez recounted how the man pointed the gun at his eyes, his neck, and his stomach, and the

gun was close enough to Hernandez that he could feel it against his skin. Hernandez also noticed,

approximately ten or fifteen feet away from him, a small green car, identified by Hernandez as a Kia,

with another male inside. As Hernandez attempted to explain to the gunman that he had no money

on him, he heard the other man inside the car tell the gunman, “Cap him. He ain’t no kin to me,

anyway, so what the hell.” Hernandez pulled a lighter out of his pocket and handed it to the gunman.

The gunman asked Hernandez, “Is that all you’ve got?” When Hernandez answered affirmatively,

the gunman demanded Hernandez’s wallet. Hernandez complied, and the gunman then got into the

car with the other man and drove away. Hernandez testified that the robbery lasted approximately

five minutes.

                Hernandez was unable to remember most of the license plate number on the

car, although he did recall that one of the numbers was a “7.” Hernandez described the gunman as

a few inches shorter than Hernandez’s height of 5'10", between 20 and 25 years old, and with a

slender build, black hair, and black skin. According to Hernandez, the gunman was wearing what

Hernandez described as a sleeveless, white “muscle shirt” and “parachute pants.” The area where

the robbery occurred, Hernandez explained, was partially illuminated by lights on or near the

building, which enabled him to see the gunman. Hernandez added, however, that “the light never

hit the other guy” in the car, so he was unable to describe him in much detail, although he could

discern that the man was tall, had black skin and black hair, a white sleeveless shirt, and “grayish”




                                                 3
pants. Hernandez also described the gun as a black, “regular handgun . . . like a 9-millimeter or 45

or something like that,” and not having a barrel. Hernandez testified that the gun looked real to him.

               The third victim was David Baker, an employee of the Texas Health and

Human Services Commission who also worked in the mornings as a delivery carrier for the

Austin American Statesman. Baker testified that after he had finished his deliveries and returned

home at approximately 8:00 a.m., he saw a “small green car, that pulled up, I would say a couple

houses down, on the curb, from our house,” and a man exit the vehicle and approach him. Baker

soon noticed that the man was pointing a gun at him. According to Baker, the gunman began

screaming and told him, “Give me your wallet. Give me your wallet. I’m not playing. This isn’t

a joke. Give me your wallet.” Baker estimated that the gunman was approximately five feet away

from him when he started yelling and then got close enough that Baker could feel the gun pressed

against his stomach. As the gunman was yelling at him, Baker also observed another man standing

on the driver’s side of the car. Baker recalled the other man telling the gunman, “Come on, come on,

hurry up. Let’s go.” The gunman then reached into Baker’s pockets until he found Baker’s wallet,

grabbed it, and “ran off towards the car.” The two men then drove away.

               Baker described the gunman as “anywhere between [his] late teens to early twenties,

18 to 22,” “maybe a couple of inches shorter” than Baker’s height of 5'11", “pretty thin,” and with

black hair and “very dark” skin. Baker recalled the gunman wearing blue jeans, tennis shoes, and

a white t-shirt with short sleeves. Baker described the other man as black, of similar age and build

as the gunman but “a little bit taller,” and wearing a backwards multicolored baseball cap, a white

“basketball shirt or muscle shirt,” and either blue jeans or sweat pants. Baker described the gun



                                                  4
as “black metallic” with “kind of a flat handle.” He added, “I’m not too familiar with guns, but it

appeared to be a semiautomatic pistol.” The green car, Baker recalled, “was a small compact; looked

like an import, like a Honda or Toyota.” Baker also tried to remember the license plate number and

could recall some of it: “I think it was DX7. It was either oh-PS or zero-PS.”

               Later that morning, at approximately 11:00 a.m., the Austin Police Department

received a report of an automobile collision in which one of the cars involved had fled the scene.

According to Officer Jesse Borunda, the responding officer, a witness to the collision described the

fleeing vehicle as a green Kia with a license plate number of “Z70DPS.” Shortly thereafter, other

officers located the suspect vehicle and initiated a traffic stop. One of the officers, Tammy Barrett,

testified that the driver of the vehicle was identified as Curtis Mayes while the passenger

was identified as Xavier Pettit. When Borunda arrived at the scene, he observed that Mayes and

Pettit were already in custody. When officers searched Pettit, a lighter similar to the one stolen

from Hernandez was found on his person. Borunda also searched the interior of the vehicle and

found a black BB gun under the passenger seat. Borunda testified that in his opinion, it looked like

a real gun.

               Because their vehicle matched the description of the vehicle reportedly used in the

earlier robberies, Mayes and Pettit were then transported to the robbery unit of the police station for

booking. Officer Billy Park, who was at the station when the men arrived, described Mayes as

“wearing a white tank top or muscle shirt and long shorts or pants.” He described Pettit as “wearing

a white t-shirt and some sort of dark pants or long shorts.”




                                                  5
               Later that day, Hernandez and Baker were transported to the station to provide

statements and identify the perpetrators. They were each interviewed separately by Detective

Chris LeLeux. In addition to describing the robberies, the details of which we have summarized

above, Hernandez and Baker were shown two photo lineups prepared by LeLeux, one of which

included a photo of Mayes, and the other of which included a photo of Pettit. According to LeLeux,

both Hernandez and Baker identified Mayes in the first lineup as the gunman, but were unable to

identify Pettit in the second lineup. Hernandez and Baker each subsequently identified Mayes in

court as the man who had robbed them.

               The other victim, Anany, did not immediately report the robbery committed against

him and was not interviewed until February 25, 2009. On that day, Anany came to the police station

and provided a statement to Detective Deanna Lichter. In addition to describing the robbery

committed against him, summarized above, Anany was shown two photo lineups prepared by

Lichter. As with the lineups shown to Hernandez and Baker, one of the lineups included a photo of

Mayes, while the other lineup included a photo of Pettit. However, the photos used in the lineups

shown to Anany were different from the photos used in the lineups shown to Hernandez and Baker,

including the photos of the suspects. After reviewing the lineups, Anany was unable to identify

either Mayes or Pettit.

               Other evidence considered by the jury included the testimony of Pettit, who testified

on behalf of the defense. Pettit acknowledged that he had been charged with three aggravated

robberies in connection with the above events. He explained that as part of a plea bargain with the

State, he had pleaded guilty to two of the charges and had agreed to a sentence of twelve years’



                                                 6
imprisonment in exchange for the State dismissing the third charge and reducing the remaining

two charges from aggravated robbery to robbery. Pettit testified that during the robberies, he was

under the influence of Xanax, promethazine, and marihuana. As a result, he could not remember

many of the details from the robberies. However, Pettit claimed that Mayes had not been with him

when the robberies were committed. Instead, according to Pettit, the gunman was a person

nicknamed “J. Rock,” whose legal name Pettit did not know. Pettit’s version of events was that he

had borrowed the green Kia from Mayes’s uncle, picked up J. Rock and then committed the

robberies with him, “dropped him off wherever I dropped him off,” and then picked up Mayes at his

house. Later that morning, while Pettit was still driving the car and under the influence of narcotics,

the automobile collision occurred. Afterwards, Pettit explained, he let Mayes drive the car because

“there was too many drugs in my system. I couldn’t drive no more.” Shortly thereafter, Mayes and

Pettit were apprehended by authorities. Other than Pettit, no other witnesses testified for the defense

during the guilt/innocence phase of the trial.

               The jury was unable to reach a verdict in cause number D-1-DC-09-904092, the

robbery involving Anany (the victim who was unable to identify his robbers), and a motion for

mistrial in that cause was granted. In the other two causes, the jury acquitted Mayes of aggravated

robbery but found him guilty of the lesser-included offense of robbery. During punishment,

Mayes pleaded true to an enhancement paragraph alleging that he had committed delinquent felony

conduct as a juvenile, and other evidence was presented. At the conclusion of trial, the district court

pronounced sentence in accordance with the jury’s verdict, noted above. Mayes filed a motion for

new trial which was overruled by operation of law. This appeal followed.



                                                  7
                                             ANALYSIS

Motion to suppress identifications

                In his first issue, Mayes asserts that the district court erred in denying his motion to

suppress Hernandez’s and Baker’s pretrial identifications of him as the gunman. In Mayes’s view,

the photo lineup shown to the victims was impermissibly suggestive and gave rise to a substantial

risk of misidentification. In his second issue, Mayes claims that because the pretrial identifications

were impermissibly suggestive, they tainted Hernandez’s and Baker’s in-court identifications.

                The Guzman standard of review applies to a trial court’s ruling on a motion to

suppress evidence based on a claim that an impermissibly suggestive pretrial identification procedure

violated the defendant’s due process rights. See Loserth v. State, 963 S.W.2d 770, 771 (Tex. Crim.

App. 1998) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); Moore v. State,

140 S.W.3d 720, 729-30 (Tex. App.—Austin 2004, pet. ref’d). Under this standard, almost total

deference is afforded to the trial court’s determination of the facts, especially when the trial court’s

findings are based on an evaluation of credibility and demeanor. Moore, 140 S.W.3d at 730. The

same amount of deference is given to mixed questions of law and fact if the resolution of

those ultimate questions turns on an examination of credibility and demeanor of the witnesses. Id.

However, if mixed questions of law and fact do not relate to credibility and demeanor, then the

trial court’s determinations are reviewed de novo. Id.

                An in-court identification is inadmissible when it has been tainted by an

impermissibly suggestive pretrial photographic identification. Luna v. State, 268 S.W.3d 594, 605

(Tex. Crim. App. 2008) (citing Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999)). The



                                                   8
test is whether, considering the totality of the circumstances, “the photographic identification

procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of

irreparable misidentification.” Id.; see Simmons v. United States, 390 U.S. 377, 384 (1968). This

is a mixed question of law and fact that does not “turn” on an evaluation of witness credibility and

demeanor. Loserth, 963 S.W.2d at 773. Accordingly, we apply a de novo standard of review. Id.;

Moore, 140 S.W.3d at 730.

               This review involves a two-step analysis: (1) whether the out-of-court identification

procedure was impermissibly suggestive; and, if so, (2) whether that suggestive procedure gave rise

to a very substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33

(Tex. Crim. App. 1995) (citing Simmons, 390 U.S. at 384; Cantu v. State, 738 S.W.2d 249, 251

(Tex. Crim. App. 1987)). An analysis under these steps requires an examination of the “totality

of the circumstances” surrounding the particular case and a determination of the reliability of

the identification. Id. “Reliability is the linchpin in determining the admissibility of identification

testimony.” Luna, 268 S.W.3d at 605. Thus, even if the out-of-court identification procedure is

found to be impermissibly suggestive, “the identification testimony will be admissible if the indicia

of reliability outweigh the apparent corrupting effect of the unnecessarily suggestive pretrial

occurrence.” Harris v. State, 827 S.W.2d 949, 959 (Tex. Crim. App. 1992). “The burden is on

the defendant to show by clear and convincing evidence that the in-court identification is unreliable.”

Id. This is a “difficult and heavy burden.” Herrera v. State, 682 S.W.2d 313, 318 (Tex. Crim.

App. 1984).




                                                  9
                We first consider whether the out-of-court identification procedure was impermissibly

suggestive. “Suggestiveness may be created by the manner in which the pre-trial identification

procedure is conducted, for example by police pointing out the suspect or suggesting that a suspect

is included in the line-up or photo array.” Barley, 906 S.W.2d at 33. “Or it may also be created by

the content of the line-up or photo array itself if the suspect is the only individual closely resembling

the pre-procedure description.” Id. However, “neither due process nor common sense requires” that

the other pictures used in a photographic array exactly match the defendant’s characteristics. Turner

v. State, 600 S.W.2d 927, 933 (Tex. Crim. App. 1980). Rather, the array must show individuals who

fit a rough description of the suspect, including the same race, general skin color, age, and height of

the suspect. Wilson v. State, 15 S.W.3d 544, 553 (Tex. App.—Dallas 1999, pet. ref’d). “The mere

fact that lineup participants do not perfectly match the physical description of the accused does not

render a lineup impermissibly suggestive.” Id.

                Based on the record before us, we cannot conclude that there was anything

impermissibly suggestive about either the manner in which the lineup was conducted or the content

of the lineup. Detective LeLeux testified that Hernandez and Baker “were not together” when he

showed each of them the photo lineups. Instead, they were interviewed individually and shown the

lineups at separate times. Thus, Hernandez’s examination of the lineups could not have influenced

Baker’s examination of the lineups, and vice versa. Moreover, prior to showing the victims the

lineups, LeLeux provided them with written admonishments instructing them that “this group of

photographs may or may not contain a picture of the person or persons who committed the crime

now being investigated.” The admonishments continued,



                                                   10
       Keep in mind that hairstyles, beards and moustaches may be easily changed. Also,
       photographs may not always depict the true complexion of a person—it may
       be lighter or darker than shown in the photo. Pay no attention to any markings or
       numbers that may appear on the photo or any other differences in the type of style of
       the photographs. When you have looked at all the photos, tell me whether or not you
       see the person or persons who committed the crime. Do not tell other witnesses that
       you have or have not identified anyone.


The written admonishments were signed by both Hernandez and Baker. Additionally, LeLeux orally

admonished the victims concerning the above and further informed them that the photos in the lineup

“could be days old, months, maybe even upwards of a year old.” LeLeux testified that he followed

the same procedures for both Hernandez and Baker. We find nothing impermissibly suggestive in

the manner in which Detective LeLeux conducted the lineup.

               Nor do we find anything impermissibly suggestive in the content of the lineup.

Detective LeLeux testified that he prepared the lineup by first selecting the most recent arrest

photograph of Mayes in the police database and then finding five “filler” photographs in which

the subjects appeared as similar as possible to Mayes’s appearance. For example, LeLeux observed

that Mayes had an “angry” or “sour” expression in his photograph, so LeLeux “chose individuals

that I thought also had expressions that were similar.” Also, LeLeux noticed that Mayes was not

“looking . . . directly at the camera,” so LeLeux “selected other individuals who were not looking

straight at the camera.” And, because Mayes was wearing a white t-shirt in the photograph, LeLeux

made sure that Mayes was not “the only person wearing a white t-shirt.” Finally, LeLeux testified

that he placed the six photographs in “random order.”

               We have closely examined the photo lineup of Mayes. Consistent with LeLeux’s

testimony, the individuals in the lineup all appear to be young, African-American males with

                                                11
similar hair, facial features, and general skin color as Mayes. At least two of the subjects in addition

to Mayes have facial expressions that could be fairly characterized as “angry” or “sour.” At least

four of the subjects in addition to Mayes are not looking directly at the camera. And three of the

subjects in addition to Mayes are wearing white shirts.

                Despite these similarities, Mayes asserts that the photo lineup was impermissibly

suggestive for three reasons: (1) his photograph was “centrally located on the bottom row, closest

to the witness’s field of vision,” which, according to Mayes, “tended to suggest to the witness

that the appellant was the person whom the police suspected”; (2) his photograph was “inherently

prejudicial because it shows the appellant with an overtly hostile and threatening expression on

his face”; and (3) “the expression on the appellant’s face . . . was distinctly different from the

expressions on the faces of the other five persons pictured in the lineup.”

                We cannot conclude that any of the above renders the photo lineup impermissibly

suggestive. We are aware of no authority, and Mayes cites to none, holding that the photo of the

suspect cannot be centrally located on the bottom row of the lineup or that such a location renders

the lineup impermissibly suggestive. Nor is there anything in the record to indicate that Mayes’s

photo was “closest to the witness’s field of vision” or that the victims’ identifications were

influenced in any way by the location of the suspect’s photo in the lineup. We also do not agree

with Mayes’s assertion that his photograph was “inherently prejudicial” because of the expression

on his face or that his facial expression was “distinctly different from the expressions on the faces of

the other five persons pictured in the lineup.” Mayes’s characterization of his expression as “overtly

hostile and threatening” is not supported by the record, as no witness testified to such a



                                                  12
characterization and LeLeux testified that Mayes’s expression appeared to be only “angry” or “sour.”

And, although it is true that all six of the men in the lineup have slightly different facial expressions,

Mayes’s expression is not so dissimilar from the others as to make him appear conspicuous in

the lineup. See Cooks v. State, 844 S.W.2d 697, 732 (Tex. Crim. App. 1992) (concluding that lineup

participants do not need to “perfectly match” description of suspect and that “it is more important,

for purposes of avoiding suggestive procedures, that appellant did not somehow appear conspicuous

among the other participants”). In fact, two of the men whom Mayes characterizes as having

“disdainful” or “arrogant” expressions (located in positions number two and six of the lineup) could

be fairly characterized as having “angry” or “sour” expressions similar to that of Mayes.

                Moreover, even if we were to find that the lineup was impermissibly suggestive,

we could not conclude on this record that the procedure gave rise to a substantial likelihood

of irreparable misidentification. We consider the following factors in determining whether an

impermissibly suggestive procedure gave rise to a substantial likelihood of irreparable

misidentification: (1) the witness’s opportunity to view appellant at the time of the crime; (2) the

witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal;

(4) the witness’s level of certainty at the time of confrontation; and (5) the length of time between

the offense and the confrontation. Luna, 268 S.W.3d at 605 (citing Neil v. Biggers, 409 U.S. 188,

199 (1972)). These five factors are to be viewed in the light most favorable to the trial court’s ruling.

Ibarra, 11 S.W.3d at 195-96; Moore, 140 S.W.3d at 731. The five factors, viewed in this manner,

are then weighed de novo against “the corrupting effect” of the suggestive pretrial identification

procedure. Ibarra, 11 S.W.3d at 195-96; Moore, 140 S.W.3d at 731.



                                                   13
               First, both Hernandez and Baker testified that they were able to see the gunman

during the robbery. Hernandez was able to see the gunman because of the lighting outside the

Home Depot, while Baker was able to see the gunman because at the time of his robbery, it

was dawn. Although both men acknowledged having vision impairments (Hernandez needed

reading glasses and Baker wore eyeglasses because his “eyesight is not all that good, especially at

that time of the morning”), neither victim indicated that their impairments prevented them from

seeing the facial features of the gunman. Both victims also testified that the gunman was in close

proximity to them during the robberies, so close that they could feel the gun against their skin. This

close proximity, the district court could have reasonably inferred, likely enabled the victims to get

a close look at the gunman. Additionally, Hernandez testified that his robbery lasted approximately

five minutes, which would give him ample time to view the gunman.1

               Second, Mayes concedes that the victims’ “attention was focused on what was

happening to them at the time.” Mayes argues, however, that their attention may have been “split”

between the gunman and his accomplice and that their attention was also focused on the gun itself.

But the fact that there were other things on which the victims were focused during the robberies does

not mean that they were inattentive to the man who was threatening them with a gun. In fact, both

Hernandez and Baker were able to recall the words the gunman used during the robbery, which

suggests that their attention was focused on him. Also, the fact that Hernandez and Baker were able




       1
         Mayes argues that it is unlikely that the robbery actually lasted this long. However, there
was no contrary evidence presented concerning the length of the robbery.

                                                 14
to recall many other details of the robberies, summarized above, indicates a high degree of overall

attention during the robberies.

                Third, while there were some inconsistencies and inaccuracies in Hernandez’s

and Baker’s prior descriptions of the gunman,2 they were not so significant as to render their

identifications unreliable. In fact, Detective LeLeux testified that it was “normal” for crime victims

to be able to recall some of the details of the perpetrator but not others. He explained, “It can be a

function of the event that they’re observing and relating happening quickly . . . fear; time of day,

lighting . . . those are all factors.” Despite being unable to correctly recall certain details, both

Hernandez and Baker correctly identified important physical characteristics such as Mayes’s

approximate age, race, build, skin and hair color, and the color of his shirt.3

                Fourth, the victims did not express any uncertainty in their identification of Mayes

as the gunman, either while viewing the lineup or in court. They both were unable to identify

the accomplice, and Hernandez informed LeLeux that he had difficulty remembering anything

other than the gunman. However, neither victim indicated that he was uncertain regarding the

gunman’s identity.

                Finally, both Hernandez and Baker identified the gunman within hours of their

robberies. Hernandez estimated that he viewed the lineup “anywhere from 12:30 to 1:00,” while



       2
           The most notable of these discrepancies is that both Hernandez and Baker described the
gunman as a few inches shorter than their respective heights of 5'10" and 5'11". However, Mayes
is actually six feet tall. Also, neither witness described seeing any tattoos on the gunman, despite the
fact that the name “Joyce” was tattooed across the front of Mayes’s neck.
       3
         However, Baker did not correctly identify the gunman as wearing a sleeveless shirt,
although Hernandez did.

                                                  15
Baker estimated that he viewed the lineup at approximately 3:00 p.m. Mayes concedes in his

brief that the “reliability of an identification is not affected by such a brief interval.” See Moore,

140 S.W.3d at 732.

               The above factors weigh in favor of finding that the victims’ identifications of

Mayes were reliable. Even assuming the lineup was impermissibly suggestive for the reasons

Mayes asserts, such suggestiveness would not outweigh the above indicia of reliability. Considering

the totality of the circumstances, we cannot conclude that Mayes satisfied his “difficult and heavy

burden” to prove by clear and convincing evidence that “the photographic identification procedure

was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable

misidentification.” Accordingly, we cannot conclude that the victims’ in-court identifications were

tainted by the pretrial procedure or that the district court erred by denying Mayes’s motion to

suppress the identifications.

               We overrule Mayes’s first and second points of error.


Sufficiency of the evidence

               In his third point of error, Mayes asserts that the evidence is factually insufficient

to sustain his convictions. However, in light of the recent decision of the Texas Court of Criminal

Appeals in Brooks v. State, we will construe this point as a challenge to the legal sufficiency

of the evidence. See 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (“[T]he Jackson 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.”).

                                                 16
               In reviewing a challenge to the legal sufficiency of the evidence, we examine

the evidence to determine whether any rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt. Id.; see Jackson v. Virginia, 443 U.S. 307, 318 (1979).

We review all the evidence in the light most favorable to the verdict, and assume the trier of fact

resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a

manner that supports the verdict. Jackson, 443 U.S. at 318; see also Laster v. State, 275 S.W.3d

512, 517 (Tex. Crim. App. 2009).

               The jury found Mayes guilty of the offense of robbery. A person commits the offense

of robbery if, in the course of committing theft and with intent to obtain or maintain control of

the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another; or

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

Tex. Penal Code Ann. § 29.02. Mayes claims that “the evidence admitted was simply too weak to

support the jury’s verdict.” We disagree.

               As detailed above, both Hernandez and Baker identified Mayes as the person who

had robbed and threatened them with what they believed to be a firearm. Neither victim expressed

any uncertainty in their identifications. And, although there were some inconsistencies in their

descriptions of Mayes, the jury could have reasonably discounted those discrepancies and instead

credited the numerous similarities between the victims’ descriptions of the robber.

               Additionally, later in the morning on the same day the robberies were committed,

Mayes was found driving the vehicle that was used in the robberies. He was found in the vehicle

with Pettit, who admitted to being involved with the robberies. And inside the vehicle, officers



                                                 17
found a black BB gun that the jury could have reasonably inferred was the same weapon that had

been used to commit the robberies.

               Mayes further asserts that the jury’s verdict is against the great weight and

preponderance of the evidence, “considering the conflicting testimony of Xavier Pettit.” Pettit,

however, admitted to being under the influence of Xanax, promethazine, and marihuana during the

events in question and could not remember many details of what happened during or after the

robberies. Also, Pettit admitted that he considered Mayes to be like a brother to him. For these and

other reasons, the jury was free to disregard Pettit’s version of events and his claim that someone

other than Mayes committed the crimes. Viewing the above evidence in the light most favorable to

the verdict, we conclude that the evidence is legally sufficient to sustain Mayes’s convictions.

               We overrule Mayes’s third point of error.


                                         CONCLUSION

               We affirm the judgments of the district court.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: March 18, 2011

Do Not Publish

                                                18
