                                                                          PD-0517-15
                          PD-0517-15                   COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                       Transmitted 5/7/2015 1:28:00 PM
                                                       Accepted 6/10/2015 10:10:32 AM
                                                                        ABEL ACOSTA
         IN THE TEXAS COURT OF CRIMINAL           APPEALS                       CLERK




                           Shane Allen Mikel,
                               Petitioner

                                   v.

                         THE STATE OF TEXAS,
                              Respondent.


From Trial Court Cause Number 1372459 in the 232nd Judicial District
   of Harris County, Texas, the Honorable Mary Lou Keel Presiding
         And Appellate Court Cause Number 01-14-00277-CR
             In the First Court of Appeals, Houston, Texas


                   Petition for Discretionary Review



                                    The Law Office of Lori Elaine Laird
                                    Lori E. Laird
                                    State Bar No: 24046260
                                    Emily Foster
                                    State Bar No: 24059768
         June 10, 2015              711 W. Bay Area Blvd., Suite 420
                                    Webster, TX 77598
                                    Tel: (832) 699-1966
                                    Fax: (832) 699-1965
                                    Lori@LoriLaird.com
                                    Attorneys for Petitioner
                                    Shane Allen Mikel


ORAL ARGUMENT REQUESTED
        IDENTITIES OF JUDGE, PARTIES, AND COUNSEL

Trial Court Judge:                      The Honorable Mary Lou Keel
                                        232nd Criminal District Court
                                        Harris County, Texas

Defendant:                              Shane Allen Mikel

Mikel’s trial counsel:                  Thomas J. Lewis
                                        1602 Washington Avenue
                                        Houston, Texas 77007

Mikel’s appellate counsel:              J. Sidney Crowley
                                        214 Morton St.
                                        Richmond, Texas 77479

Mikel’s counsel on Petition for         Lori Elaine Laird
Discretionary Review:                   Emily Foster
                                        711 W. Bay Area Blvd.
                                        Suite 1420
                                        Webster, Texas 77598

Counsel for the State at trial:         Markay A. Stroud
                                        1201 Franklin
                                        Suite 600
                                        Houston, Texas 77002

Counsel for the State on appeal:        Markay A. Stroud
                                        Devon Anderson
                                        Clinton A. Morgan
                                        1201 Franklin
                                        Suite 600
                                        Houston, Texas 77002




                                   ii
                                    TABLE OF CONTENTS

Identities of Judge, Parties, and Counsel .................................................ii

Table of Contents .................................................................................... iii

Index of Authorities................................................................................... v

Statement Regarding Oral Argument ...................................................... 1

Statement of the Case ............................................................................... 1

Statement of Procedural History .............................................................. 1

References to the Record ........................................................................... 2

Grounds for Review ................................................................................... 2

Argument ................................................................................................... 2

  Statement of the evidence at trial ......................................................... 3

  There was insufficient evidence to believe that Mikel was involved in

  the robbery.............................................................................................. 5

     i. Officer Robles’s description of the suspect was so scant that it

     would not have even provided probable cause to arrest a suspect .... 6




                                                      iii
     ii.    Officer Robles identification of Mikel was based on a suggestive

     procedure and unreliable and as such cannot be considered more

     than a modicum of evidence .............................................................. 10

Prayer for Relief ...................................................................................... 17

Appendix .................................................................................................. 19




                                                      iv
                                   INDEX OF AUTHORITIES

Cases

Goldberg v. State, 95 S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2002,

  pet. ref’d) ................................................................................................. 7

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ........................ 6

Jackson v. Virginia, 443 U.S. 307 (1979) .................................................. 5

McGruder v. State, No. 10-07-00348-CR (Tex. App.—Waco Dec. 17,

  2008, pet. ref’d) (not designated for publication) ............................. 7, 12

Moreno v. State, 755 S.W.2d 866 (Tex. Crim. App. 1988) ........................ 5

Neil v. Biggers, 409 U.S. 188 (1972) ............................................... passim

People v. Jones, 429 N.E.2d 1101 (Ill. App. Ct. 1981) .......................... 7, 8

State v. Dubose, 699 N.W.2d 582, 285 Wis.2d 143 (Wis. 2005) ............. 13

Weatherly v. State, No. 04-06-00573-CR (Tex. App.—San Antonio Oct.

  31, 2007, pet. ref’d) (not designated for publication) ..................... 11, 12

Williams v. State, 243 S.W.3d 787 (Tex. App.—Amarillo 2007, pet. ref’d)

   .............................................................................................................. 13




                                                        v
           STATEMENT REGARDING ORAL ARGUMENT

      Petitioner believes that oral argument would be helpful in this case

as it would help Petitioner clarify how the standards for probable cause

or the reliability of a show-up identification relate to his argument that

there was insufficient evidence to support his conviction and allow

Petitioner to respond to the Court’s questions.

                     STATEMENT OF THE CASE

      This case concerns a conviction for aggravated robbery pursuant to

§ 29.03(a)(2) of the Texas Penal Code in cause number 1372459 in the

232nd District Court of Harris County, Texas, the Honorable Mary Lou

Keel, presiding. (RR: vol. 4, p. 35.) Petitioner Shane Allen Mikel was

sentenced to 20 years’ confinement in the Institutional Division of the

Texas Department of Criminal Justice. (RR: vol. 5, p. 37.) The conviction

was appealed to the First Court of Appeals in cause number 01-14-00277-

CR.

              STATEMENT OF PROCEDURAL HISTORY

Date of opinion from Court of Appeals: April 7, 2015

Date of Motion for Rehearing:            None filed

Date of Motion for Rehearing:            N/A


                                    1
                   REFERENCES TO THE RECORD

     For the purposes of the petition, references to the Reporter’s Record

will be made as follows: (RR: vol. ___, p. ___), where the blanks refer to

the volume number and page number, respectively.

                       GROUNDS FOR REVIEW

1.   Whether the Court of Appeals has so far departed from the accepted

course of judicial proceedings by effectively determining that there is a

lower burden of proof for a conviction than there would be to make an

arrest.

2.   Whether the Court of Appeals has so far departed from the accepted

course of judicial proceedings by effectively determining that the

identification resulting from a suggestive show-up without indications

that Petitioner had not been misidentified constitutes more than a

modicum of evidence.

                              ARGUMENT

     At trial, the State and the Defense agreed that the only issue in this

case was the identity of the man in the gray sweater who robbed the

Flemingo Supermarket on December 28, 2012. (RR: vol. 4, p. 6-8.) Mikel


                                    2
argued, at trial and on appeal, that the evidence was insufficient to prove

Mikel’s involvement beyond a reasonable doubt. Here Mikel argues that

the evidence linking him to the robbery is so scant that, in affirming the

judgment of the trial court, the Court of Appeals departed from the

accepted and usual course of judicial proceedings by effectively holding

that there is a lower burden of proof for a conviction than there would be

to make an arrest and that an identification from a suggestive show-up

constitutes more than a modicum of evidence.

Statement of the evidence at trial

     The only evidence that suggested that Mikel could have been

involved in the robbery was his presence in the neighborhood the

afternoon of the robbery and the identification by Officer Robles. Briefly,

the evidence at trial showed the following:

     In the afternoon of December 28, 2012, three masked men robbed

the Flemingo Supermarket on the corner of Canal Street and Edgewood

Street in Houston, Texas. (RR: vol. 3, p. 21, 30, and 39.) One of the men

wore a gray sweater with a red stripe. (RR: vol. 3, p. 71.) The men left the

supermarket and stole the truck of Raphael Gonzales. (RR: vol. 3, p. 47.)

Officer Jesus Robles chased after the men down North Edgewood Street


                                     3
until they reached Avenue I, where the men jumped out of the vehicle.

(RR: vol. 3, p. 64-66.) At this point, the men were no longer wearing

masks. (RR: vol. 3, p. 70.) One of the men—Daniel Edison—stops for

Officer Robles, and Officer Robles holds him at gunpoint while the other

two men walk off. (RR: vol. 3, p. 70.)

      Officer Rojilio Carrreon arrived to assist and was told by Officer

Robles that one of the men “was wearing a gray sweater and he went that

way.” (RR: vol. 3, p. 111.) Officer Carreon followed the man’s path and

located a glove, a mask, and a gray sweater. (RR: vol. 3, p. 113 and 118-

19.) He spoke to a resident identified as Mr. Herrero, who stated that he

saw a man taking off a gray sweater. (RR: vol. 3, p. 117-18.) He stated

that the man was white, had a baby blue T-shirt on under the sweater,

and was wearing baggy jeans. (RR: vol. 3, p. 118-20.)

      Diana Gutierrez testified that she was in the neighborhood with her

family when she saw a white man coming down Avenue H. (RR: vol. 3, p.

130.) She testified that he was wearing a “greenish blueish” shirt and

khaki shorts and that he was “scruffy” as though he had not shaved. (RR:

vol. 3, p. 131-32.) The man then turned east on Canal Street. (RR: vol. 3,

p. 133.)


                                     4
      Officer Richard Trejo was driving on Canal Street when heard a

description of a white man in a “blue shirt with brown shorts” being a

suspect to the robbery at the Flemingo Supermarket. (RR: vol. 3, p. 140-

41.) He stopped a man, Petitioner Mikel, who fit that description and took

him into custody. (RR: vol. 3, p. 143-44.) Mikel was then brought to

Officer Robles who identified him as the man he saw exiting Gonzales’s

truck. (RR: vol. 3, p. 88.) Though the area was searched, the pair of jeans

that Mikel allegedly shed as he was fleeing was never found. (RR: vol. 3,

p. 120.)

There was insufficient evidence to believe that Mikel was involved in the
robbery

      A review for sufficiency of the evidence impinges on a jury’s

discretion “only to the extent necessary to guarantee the fundamental

protection of due process of law.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). This Court must ask whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Id.

(emphasis in the original). “[A] verdict must stand unless it is found to be

irrational or unsupported by more than a ‘mere modicum’ of the

evidence.” Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

In the present case, Mikel argues that the Court of Appeals departed

                                     5
from the accepted course of judicial proceedings because no rational trier

of fact could have found Mikel was involved in the robbery beyond a

reasonable doubt.

i.   Officer Robles’s description of the suspect was so scant that it would

not have even provided probable cause to arrest a suspect

     While Mikel does not argue here that Officer Trejo did not have

probable cause to arrest or even that Mikel was under arrest when

stopped by Officer Trejo. Indeed, such an argument in the lower courts

may have been futile, as, other than the questionable identification itself,

no incriminating evidence was gleaned after Mikel was stopped by Officer

Trejo. Rather, Mikel turns to the standard of probable cause only to

illustrate the weakness of the evidence against him, thus arguing that

the evidence was so weak that it would not even have provided probable

cause. Probable cause to arrest a suspect is based on reasonableness.

“Probable cause exists where the police have reasonably trustworthy

information sufficient to warrant a reasonable person to believe a

particular person has committed or is committing an offense.” Guzman

v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). Mikel questions what




                                     6
is reasonable information to identify a particular person as having

committed an offense.

     In Goldberg v. State, 95 S.W.3d 345, 356 (Tex. App.—Houston [1st

Dist.] 2002, pet. ref’d), a witness “described the assailant as a white male,

approximately six feet tall, 18-19 years old, 165 pounds, with short-to-

medium sandy blonde hair.” The court found this description, among

other incriminating evidence, to be adequate to provide officers with

probable cause to arrest the suspect. Id. at 463.

     In McGruder v. State, No. 10-07-00348-CR (Tex. App.—Waco Dec.

17, 2008, pet. ref’d) (not designated for publication), a man who had just

committed a burglary was described to police by the victim. The victim

described the burglar’s clothes and general appearance and told police

that the burglar was “bleeding profusely” from when the victim had cut

the burglar in a struggle. Id. That the defendant matched the description

and was found with a blood-soaked towel wrapped around his arm gave

officers probable cause to believe he was the same man who had

committed the burglary. Id.

     In a case from Illinois, in People v. Jones, 429 N.E.2d 1101, 1102-

03 (Ill. App. Ct. 1981) a description of a suspect including his race, sex,


                                     7
and body type, and as well as a description of, coincidentally, the

suspect’s “gray turtleneck sweater with a red stripe across the chest”

allowed police to identify the suspect. The court noted that this

information, including the description of the “uniquely patterned

sweater,” “narrows considerably the population of potential suspects” and

gave the officers probable cause to arrest the suspect. Id. at 1103-04.

      With the exception of the description of the sweater, in the present

case, Officer Robles provides no descriptive information that would have

narrowed the pool of potential suspects to a degree needed to allow police

to believe Mikel was probably the suspect. When asked on the witness

stand to describe the person he saw exiting the truck, Officer Robles said

only that the man was wearing blue jeans, had a mustache, a beard,

“some hair,” and was upset. (RR: vol. 3, p. 78.) He did not make note of

the man’s race. (RR: vol. 3, p. 74 and 78.) He did not provide an estimate

of his age, weight, or height. (RR: vol. 3, p. 78.) He could not describe the

hair color or give a more descriptive account of the style of mustache and

beard. (RR: vol. 3, p. 78.)

      By contrast, the State’s witness Diana Gutierrez, not a law

enforcement officer trained to observe, was better able to describe the


                                     8
facial hair of the man she saw, describing him as “scruffy,” as though he

“hadn’t shaved,” and identifying him as white. (RR: vol. 3, p. 130 and

132.) Perhaps more concerning, Officer Carreon testified that the only

description Officer Robles gave on the day of the robbery was that the

suspect “was wearing a gray sweater and he went that way.” (RR: vol. 3,

p. 111.) The eventual stop of Mikel by Officer Trejo was thus based on a

game of identification Telephone, with each player giving only vague and

differing description.

     Neither Officer Robles’s description of a man going “that way,” nor

the description heard by Officer Trejo of a man in “blue shirt with brown

shorts,” nor Mr. Herrero’s description of a white man in a blue shirt and

baggy jeans are descriptive enough to narrow the pool of potential

suspects to allow the officers to even arrest a man fitting any one of those

descriptions, let alone find a man guilty of robbery beyond a reasonable

doubt. (RR: vol. 3, p. 111, 118-20, and 140-41.) Unlike the gray sweater

with a red stripe in Jones and here, there is nothing distinctive about a

blue T-shirt, even in a mild Houston December. As such, the Court of

Appeals departed from the accepted course of judicial proceedings by




                                     9
effectively placing a lower burden of proof on convictions than there is to

arrest.

ii.   Officer Robles identification of Mikel was based on a suggestive

procedure and unreliable and as such cannot be considered more than a

modicum of evidence

      Again, Mikel cannot and does not argue here that the identification

of him done by Officer Robles should have been excluded for being

impermissibly suggestive. Rather, by analogizing to cases where show-

up identifications have violated a defendant’s due process, Mikel argues

that any rational fact finder would have considered the identification by

Officer Robles to be so untrustworthy as to amount to only a modicum of

evidence of Mikel’s involvement in the robbery and is therefore

insufficient to support his conviction. See Moreno, 755 SW 2d at 867. The

Court of Appeals therefore departed from the accepted course of judicial

proceedings by affirming Mikel’s conviction on only a modicum of

evidence.

      While one-person show-ups do not per se violate a defendant’s due

process rights, when they are impermissibly suggestive, a court must ask

whether the procedure gave rise to a substantial likelihood of


                                    10
misidentification. See Neil v. Biggers, 409 U.S. 188, 199 (1972). Courts

will examine “whether, under the totality of the circumstances’ the

identification was reliable even though the confrontation procedure was

suggestive.” Id. Factors to consider are “the opportunity of the witness to

view the criminal at the time of the crime, the witness’ degree of

attention, the accuracy of the witness’ prior description of the criminal,

the level of certainty demonstrated by the witness at the confrontation,

and the length of time between the crime and the confrontation.” Id. at

199-200. Thus in addition to potentially violating a defendant’s due

process rights, show-up identifications are often excluded from evidence

as courts are concerned that the witness is wrong.

     In Weatherly v. State, No. 04-06-00573-CR (Tex. App.—San

Antonio Oct. 31, 2007, pet. ref’d) (not designated for publication), the

appellate court analyzed a show-up where two witnesses identified the

assailants. There, both witnesses had opportunities to view the

assailants before and during the course of the robbery. Id. One witness

“passed so close to the men on the sidewalk that they almost touched

shoulders.” Id. The other “was close enough to both participants for them

to converse about what he had that was worth stealing, for each man to


                                    11
reach out and grab one of his pockets, and for one assailant to push the

gun into his ribs.” Id.

      Additionally, the descriptions provided by the witnesses in that

case were accurate. Id. The witnesses described the race of the assailants

and their relative heights and ages. Id. They described one assailant as

being “skinny” and “grungy” with “wild hair” while the other was “real

rugged looking.” Id. The court found that the reliability factors

“outweigh[ed]    any      corrupting   influence    created   by   any   undue

suggestiveness of the identification procedure.” Id.

      McGruder, No. 10-07-00348-CR also involved a show-up. There, the

victim described him as being “[a] very big man, built across the chest.”

Id. As this was an accurate description of the defendant, the

identification was considered more reliable. Id.

      In the present case, an identification was made by Officer Robles.

Though Officer Robles is a police officer and not merely a layperson

victim or witness to a crime, factors that show his identification was

reliable—or     unreliable—are     still    instructive.   The   show-up   was

suggestive, and, when considering the totality of the circumstances




                                       12
surrounding the show-up, one could not conclude Officer Robles’s

identification was reliable.

      Mikel was shown to Officer Robles while Mikel was in the back of a

patrol vehicle. (RR: vol. 3, p. 88.) This itself is suggestive but not fatal to

the identification. See generally Williams v. State, 243 S.W.3d 787 (Tex.

App.—Amarillo 2007, pet. ref’d) (considering identification of a suspect

from the back of a police vehicle to be suggestive), and see generally State

v. Dubose, 699 N.W.2d 582, 285 Wis.2d 143, 167 (Wis. 2005) (holding that

“[s]howups conducted in police stations, squad cars, or with the suspect

in handcuffs that are visible to any witness, all carry with them

inferences of guilt, and thus should be considered suggestive.”)

      Addressing the Biggers factors, the first inquiry is the opportunity

the witness had to observe the suspect. Biggers, 409 U.S. at 199-200.

Officer Robles testified that he was able to look at the suspect as he was

fleeing from the truck for “about a minute, minute and a half.” (RR: vol.

3, p. 98.) During this time, however, Officer Robles is holding Edison on

the ground at gunpoint and the suspect is heading away from them. (RR:

vol. 3, p. 70-72.) While the suspect turns around a few times to face

Officer Robles, he is still headed away from Officer Robles and turning


                                      13
down streets, thus it is unknown how long Officer Robles is able to get a

good look the suspect’s face. (RR: vol. 3, p. 70, 74, 82, and 102.)

     Next, Biggers considers the witness’s degree of attention to the

suspect. Id. As stated above, while observing the suspect, the suspect was

headed quickly away from Officer Robles. (RR: vol. 3, p. 70-72.) Moreover,

while trying to observe the suspect, Officer Robles was also holding

Edison at gunpoint. (RR: vol. 3, p. 70-72.) While he alleges that he was

able to keep Edison at bay while still tracking the suspect, the description

he provides of the suspects may lead one to suspect he was not paying

careful attention to the features of the suspect. (RR: vol. 73 and 102.)

     When asked at trial to describe the person he saw, he said only that

the man was wearing blue jeans, had a mustache, a beard, “some hair,”

and was upset. (RR: vol. 3, p. 78.) He did not make note of the man’s race.

(RR: vol. 3, p. 74 and 78.) He did not provide an estimate of his age,

weight, or height. (RR: vol. 3, p. 78.) He could not describe the hair color

or give a more descriptive account of the mustache and beard. (RR: vol.

3, p. 78.) Additionally, Officer Carreon testified that the only description

Officer Robles gave on the day of the robbery was that the suspect “was

wearing a gray sweater and he went that way.” (RR: vol. 3, p. 111.) Officer


                                     14
Robles’s lack of any detail that would narrow the pool of potential

suspects suggests that he was not able to pay attention to the features of

the suspect as he fled and makes it likely that Mikel had been

misidentified.

      Next, Biggers asks about the accuracy of the witness’s description.

Id. On the day of the offense, Officer Robles says only that the suspect

“was wearing a gray sweater and he went that way.” (RR: vol. 3, p. 111.)

While there is an explanation for the change in clothing and there was

no evidence to contradict which way the suspect went, Mikel would argue

that if this description is accurate, it is not precise. It is not sufficient to

instill confidence that Mikel was not misidentified.

      Neither is the description Officer Robles gave at trial precise.

Again, at trial, Officer Robles testified that the suspect was wearing blue

jeans, had a mustache, a beard, “some hair,” and was upset. (RR: vol. 3,

p. 78.) He does not state the suspect race, age, build, height, hair color,

or facial hair style. (RR: vol. 3, p. 78.) This testimony is too general and

imprecise to allow a rational trier of fact to be confident that Mikel was

not misidentified.




                                      15
     The next Biggers factor considers “the level of certainty

demonstrated by the witness.” Id. While Officers Robles does not attach

a level of certainly to his identification, he does tell the jury why he is

certain the man brought to him is the man he saw fleeing. He says “he

had the same angry look,” referring to the upset face the suspect had

when fleeing. (RR: vol. 3, p. 78 and 88.) Thus apparently Officer Robles

confidence that he had identified the right man is based on the fact the

fleeing suspect and Mikel shared the same emotion.

     Finally, Biggers asks after the length of time between the witness’s

first opportunity to see the suspect and the confrontation. Id. Mikel

concedes this factor weighs in favor of the State in this case.

     When looking at the suggestive identification of Mikel by Officer

Robles—a one-person show-up while Mikel sat in the back of a police

car—and the lack of indications that would make the identification

reliable—that Officer Robles was unable to provide an adequate

description of the suspect, that Officer Robles was distracted when

looking at the suspect, and that Officer Robles did not have a good

opportunity to view the suspect—a rational fact finder must conclude

that Officer Robles’s identification was not reliable. Notably, the State


                                    16
did not call Mr. Herrero to testify, the only person who could have

confirmed that the man he saw removing the distinctive gray sweater

was the one on trial. (RR: vol. 3, p. 117-18.) As Officer Robles’s

identification was unreliable and the only evidence incriminating Mikel,

there was insufficient evidence to convict Mikel of the robbery and the

Court of Appeals so far departed from the accepted course of judicial

proceedings by affirming Mikel’s conviction that was based only on a

modicum of unreliable evidence.

                           PRAYER FOR RELIEF

     Shane Allen Mikel respectfully prays that this Honorable Court

grant his Petition for Discretionary Review, reverse his conviction, order

a judgment of acquittal, and for all further relief to which he has shown

himself justly entitled.

                                     Respectfully submitted,

                                     The Law Office of Lori Elaine Laird
                                     11200 NASA Parkway, Suite 107
                                     Houston, TX 77058
                                     Tel: (832) 699-1966


                                     By: ___________________________
                                     Lori E. Laird
                                     State Bar No: 24046260
                                     Emily Foster

                                    17
                                    State Bar No: 24059768
                                    Attorneys for Petitioner
                                    Shane Allen Mikel


                         Certificate of Service

     I do hereby certify that on this 5th day of May, 2015, a true and

correct copy of this Petition for Discretionary Review was served on

Counsel for the State Markay A. Stroud, Devon Anderson, and Clinton

A. Morgan, 1201 Franklin, Suite 600, Houston, Texas 77002 by electronic

service.



                                    ___________________________
                                    Attorney for Petitioner
                                    Shane Allen Mikel




                                   18
                  CERTIFICATE OF COMPLIANCE

     I certify that this response is in compliance with Rule 9.4(i)(2)(B) of

the Texas Rules of Appellate Procedure because its relevant portions

contain 3,456 words.


                                            ___________________
                                            Lori Elaine Laird
                                            Attorney for Petitioner
                            APPENDIX

April 7, 2015 Judgment of a Panel of the First Court Exhibit A
of Appeals, Shane Allen Mikel v. The State of Texas,
No. 01-14-00277-CR.




                                 19
Opinion issued April 7, 2015




                                     In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                               NO. 01-14-00277-CR
                           ———————————
                     SHANE ALLEN MIKEL, Appellant
                                        V.
                         STATE OF TEXAS, Appellee


                   On Appeal from the 232nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1372459


                         MEMORANDUM OPINION

      A jury found appellant, Shane Allen Mikel, guilty of the offense of

aggravated robbery1 and assessed his punishment at confinement for twenty years.




1
      See TEX. PENAL CODE ANN. § 29.03(a)(2), (b) (Vernon 2011).
In his sole issue, appellant contends that the evidence is legally insufficient to

support his conviction.

      We affirm.

                                   Background

      The complainant, Inayat Maredia, testified that on December 28, 2012,

while he was working alone at his grocery store on Canal Street in Houston, he

noticed three men, wearing masks, approaching the store. One of the men, holding

a gun, was wearing a gray sweater with a horizontal red stripe and white tennis

shoes. And the complainant, through video feeds of the store’s security cameras,

saw smaller guns in the hands of the other two men. He ducked under the check-

out counter and pushed a button to lock his front doors automatically, but a

customer held the doors open, which allowed the men to enter before the doors

could lock. The doors then closed, locking the men in the store.

      The man wearing the gray sweater and white tennis shoes jumped over the

counter, went into the store’s office, and took a cash box containing $60,000. One

of the other men began shooting at the locked door in an effort to open it.

Throughout this time, the complainant sat on the floor, afraid that one of the men

might shoot or kill him. When the three men left the store and walked into the

parking lot, the complainant telephoned for emergency assistance. The store’s

surveillance videotapes, which were admitted into evidence, show the men



                                         2
entering and exiting the store, the man in the gray sweater and white tennis shoes

jumping over the counter, and the subsequent events that occurred in the parking

lot.

       Raphael Zavala, a regular customer at the complainant’s grocery store,

testified that he was in his truck outside the store when he heard a loud noise from

inside the store. When he exited his truck to investigate, he discovered broken

glass at the front of the store. Zavala returned to his truck, where he was accosted

by three men wearing ski masks, at least two of whom had guns. When one of the

men told Zavala in Spanish, “Give me the keys or I will kill you,” he handed over

his keys. The same man, holding what Zavala described as a “machine gun,” fired

a shot into the ground and the masked men then got into Zavala’s truck and drove

off. Zavala flagged down Houston Police Department (“HPD”) Officer J. Robles,

who happened to be driving by, and explained what had happened. After Officer

Robles told Zavala to stay where he was, he pursued the robbers.

       Officer Robles testified that while on patrol near the grocery store on

December 28, 2012, he heard multiple gunshots and slowed his patrol car to

determine from where the shots were fired. A man then ran up to his patrol car

from the grocery store and stated that men were taking his truck and wanted to kill

him. As Robles told the man to wait for him, a truck “flew out of the parking lot”

of the grocery store at high speed, and the man identified the truck as his. Robles



                                         3
followed the truck down Canal Street and North Edgewood Street until it crossed

over Avenue I, at which point three men began “hopping out” without stopping the

truck, which eventually collided with a parked vehicle. Robles then drew his gun

and commanded the men to “get down.” One man complied, but the others did

not. And one of the men who refused to stop was wearing “a gray sweater with a

red line in the center,” which Robles identified as in evidence, and dark blue jeans.

When Robles was within a few yards of this man, he saw his face clearly, but lost

eye contact with him at the corner of Avenue I and Engle Street.

      Officer Robles then described the fleeing suspects over the radio in his

patrol car. When he searched the truck, he found an AK-47 rifle that contained a

magazine loaded with eleven live rounds of ammunition. The man that Robles

detained, Daniel Edison, admitted that the gun was his. After another officer

detained appellant and brought him to Robles, Robles identified him as the man he

had seen wearing the gray sweater, and he identified him in court for the jury. The

third man who had been in the truck was never apprehended or identified.

      HPD Officer R. Carreon testified that when he arrived at Officer Robles’s

location, he found a mask and a glove. He then spoke with a witness, Herrero,

who stated that he had just seen a white man take off and discard a gray sweater,

and then run away. Herrero also told Carreon that the man was wearing baggy




                                         4
jeans and a baby blue t-shirt. Carreon then found in a ditch on Engle the gray

sweater, which he identified in evidence.

      Diana Gutierrez testified that on December 28, 2012, she and her father had

stopped in their car at the corner of Canal and Lenox, where they saw police

activity. She saw a white man wearing long khaki shorts, “bright white” tennis

shoes, and a “greenish bluish short sleeve shirt,” walking quickly. The man and

his attire struck Gutierrez as unusual because “everybody in that neighborhood is

basically Hispanic,” and “[i]t was cold so [the man’s clothing] was just kind of

awkward.” And she noted that the man had “real short” and “kind of scruffy” hair.

Gutierrez then identified appellant in court as the man that she had seen.

      Former HPD Officer R. Trejo 2 testified that on December 28, 2012, he

assisted in the search for suspects in the robbery. Over the radio in his patrol car,

he heard a description of a suspect as a white male wearing a blue shirt with

brown, khaki shorts. He then saw, walking along Canal Street, a man matching the

description, sweating, flushed, and red in the face. Trejo detained the man, and he

identified appellant in court as the man that he had detained. Other officers took

the man back to Officer Robles, who identified him at the scene as the same person

that he had seen wearing the gray sweater with a red stripe “just minutes before.”




2
      Officer Trejo retired before trial.

                                            5
      Courtney Price testified that she met appellant at the home of a mutual

friend, Kate, in Houston the night before the robbery. She noted that appellant,

who was wearing blue jeans and a t-shirt at the time, had used methamphetamine

with her throughout the night before the robbery and into the next morning, until

about noon. Price, Kate, and appellant then left in Kate’s car, and Kate and Price

stopped several times on the street to ask people for narcotics. Price explained that

appellant, who was high on methamphetamine, then “freaked out” because he

“didn’t want to be there. It made him paranoid.” He left Price and Kate at around

12:30 or 12:45 p.m.

      Appellant testified that he has had “a problem with drugs off and on most of

[his] life.” He further testified, consistent with Price, that he had used narcotics

throughout the night before the robbery at an apartment in Houston. Around noon

on the day of the robbery, just a few minutes after he exited Kate’s car, a police

officer confronted and arrested him. Appellant denied participating in the robbery,

being present at the complainant’s grocery store, or having a gun in his possession

on the date of the robbery.

                                   Standard of Review

      We review the legal sufficiency of the evidence by considering all of the

evidence “in the light most favorable to the prosecution” to determine whether any

“rational trier of fact could have found the essential elements of the crime beyond a



                                         6
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781,

2788–89 (1979). Our role is that of a due process safeguard, ensuring only the

rationality of the trier of fact’s finding of the essential elements of the offense

beyond a reasonable doubt. See Moreno v. State, 755 S. W.2d 866, 867 (Tex.

Crim. App. 1988). We give deference to the responsibility of the fact finder to

fairly resolve conflicts in testimony, weigh evidence, and draw reasonable

inferences from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007). However, our duty requires us to “ensure that the evidence presented

actually supports a conclusion that the defendant committed” the criminal offense

of which he is accused. Id.

                              Sufficiency of the Evidence

      In his sole issue, appellant argues that the evidence is legally insufficient to

support his conviction because neither the complainant nor Zavala saw the robbers’

faces; Zavala did not observe the robbery and “did not positively [identify] the men

who robbed his truck as the same ones who had robbed the . . . store”; Officer

Robles’s “chance for observation was fleeting”; appellant, when detained, was not

wearing the same clothes described by Robles; and appellant was not carrying cash

from the robbery or a weapon when he was detained. He asserts that given these

facts, combined with the testimony given by him and Price, “no rational trier of




                                           7
fact could have found beyond a reasonable doubt that [he] participated in the

robbery of the complainant’s store.”

      A person commits theft if he “unlawfully appropriates property with intent

to deprive the owner of property.” TEX. PENAL CODE ANN. § 31.03(a) (Vernon

Supp. 2014). He commits the offense of robbery if, in the course of committing

theft and with intent to obtain or maintain control of 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.

Id. § 29.02(a) (Vernon 2011). The robbery is aggravated if he does any of the

following three things:

      (1)    causes serious bodily injury to another;

      (2)    uses or exhibits a deadly weapon; or

      (3)    causes bodily injury to another person or threatens or places
             another person in fear of imminent bodily injury or death, if the
             other person is:

             (A)   65 years of age or older; or

             (B)   a disabled person.

Id. § 29.03(a) (Vernon 2011).

      In this case, the testimony of the complainant and the videotape from

surveillance cameras in his store establish that on December 28, 2012 three men,

each carrying a gun and wearing a mask, entered and robbed the complainant’s



                                          8
store, placing the complainant in fear of imminent bodily injury or death. The

videotape shows that the man who took the cash box wore a gray sweater with a

horizontal red stripe. It also shows that one of the men fired shots at the store’s

door in an effort to open it to exit the store after the door had locked. The

testimony of Zavala and the videotape further show that the same men then stole

Zavala’s truck outside of the store, and one of the men fired a shot from his gun.

      Moreover, both Zavala and Officer Robles testified that Zavala identified the

truck for Robles, who immediately pursued the truck. And, Robles later saw three

men exit the truck, one of whom, Edison, admitted to owning the rifle found in the

truck and participating in the robbery. Robles got a clear look at the face of one of

the other men, who had been in the truck and was wearing a gray sweater with a

horizontal red stripe. After Robles had described the fleeing suspect over his radio,

an eyewitness told Officer Carreon that he had just seen a white man, who was

wearing a gray sweater, jeans, and a light blue shirt, remove his sweater. After

Carreon recovered the sweater, Gutierrez saw a man in the same area matching the

description that Robles had given earlier, except he was wearing khaki shorts.

Officer Trejo then detained appellant, and Robles later identified appellant as the

man who he had seen in Zavala’s truck and who had been wearing a gray sweater

with a red stripe. And Robles, Trejo, Gutierrez each identified appellant as the

man that they had seen on December 28, 2012.



                                          9
      Given the above evidence, the jury could have reasonably concluded that the

men who robbed the complainant’s store were the same men who stole Zavala’s

truck and who later exited the truck in sight of Officer Robles. The jury could

have further reasonably concluded, based on Robles’s positive identification of

appellant as one of the men he saw exit the truck, that appellant was one of the

robbers. This conclusion is further supported by Officer Carreon’s testimony that

he found a mask and Herrero had told him that he had just seen a man in the same

area removing a sweater with a red stripe, revealing a baby-blue t-shirt. Moreover,

Gutierrez placed appellant in the same area as the suspect, and Officer Trejo

testified that he detained appellant in the area and he was wearing clothes matching

the description given to him by Gutierrez and Herrero. “[T]he jury was free to take

all of the evidence into account and to believe or disbelieve any portion of [the

defendant’s] statements.” Sorto v. State, 173 S.W.3d 469, 475 (Tex. Crim. App.

2005). It was thus free to reject both appellant’s and Price’s testimony.

      Viewing the evidence in the light most favorable to the jury’s verdict, we

conclude that the jury could have reasonably found, beyond a reasonable doubt,

that appellant committed a robbery of the complainant’s grocery store and, in the

process of committing the robbery, used and exhibited a firearm, a deadly weapon,

placing the complainant in fear of imminent bodily injury or death. Accordingly,

we hold that the evidence is legally sufficient to support appellant’s conviction.



                                          10
      We overrule appellant’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Higley, and Huddle.

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




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