                                    NO. 12-10-00042-CR

                         IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

ROY EARL ALEXANDER,                                  §             APPEAL FROM THE 411TH
APPELLANT

V.                                                   §             JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                             §             TRINITY COUNTY, TEXAS


                                     MEMORANDUM OPINION
       Roy Earl Alexander appeals his conviction for robbery. In three issues, Appellant argues
that the evidence is legally and factually insufficient to support the conviction and that he was
denied a fair and impartial jury. We affirm.


                                              BACKGROUND
       Appellant bought Evelyn Corley five dollars worth of gas to drive him to TD’s Liquor
Store, which is located north of Trinity, Texas. Once they arrived, Appellant, Corley, and another
of Corley’s friends went into the store together. Corley and her friend shopped, but Appellant had
a different idea. Danny Duncan, the owner of the store, watched as Appellant put a bottle of
whiskey in his pants. Duncan told him to put the bottle back, but Appellant did not comply.
Instead, he tried to leave the store. When Duncan tried to stop him, Appellant pulled out the
bottle and tried to hit Duncan with it. The bottle fell and broke, and the two men fought.
       Appellant was arrested and later charged with the felony offense of robbery.1 In pertinent

       1
           See TEX. PENAL CODE ANN. § 29.02(a)(1) (Vernon 2003).
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part, the indictment alleged that Appellant, while in the course of committing a theft of property,
and with the intent to obtain or maintain control of said property, intentionally, knowingly, or
recklessly caused bodily injury to Duncan by striking him with his fist and cutting him. The
indictment also alleged that Appellant had two prior convictions for felony offenses.
       Appellant pleaded not guilty, and a jury trial was held. At trial, Duncan was asked if
Appellant hit him with his fist. Duncan replied, “Yes, sir, I think so.” Duncan also identified
photographs that “look like I might have been hit on the right chin.” When he was asked whether
Appellant was “the man that [sic] hit you with his fist,” Duncan replied, “Yes, sir.” On cross
examination, however, Duncan was less positive about being hit with Appellant’s fist. After
being asked “you don’t have any specific recollection of my client striking you with his fist.
That’s the truth, isn’t it[,]” Duncan replied, “I guess so.” On redirect examination, Duncan said,
“Well, he definitely hit me.” When asked how Appellant hit him, Duncan replied, “With his fist.”
On recross examination, Duncan was asked again if he was sure Appellant hit him with his fist.
Duncan said, “Well, he swung at me. I know that.” But he also admitted that “it’s kind of hard
to know where your injuries are coming from because you are dodging, dodging fists at the time.”
       Evelyn Corley testified that Appellant “hit [Duncan],” that he “went to the floor,” and that
Appellant “starting beating the hell out of him.” She also testified that Appellant “began to
assault him.” When asked how Appellant assaulted Duncan, Corley said, “He hit him.”
       Both sides presented additional evidence and rested.          During closing argument, the
prosecutor received some unexpected encouragement from a member or members of the jury. As
the State was making its closing argument, the prosecutor said, “I think that should be counting for
him [Duncan] because he is being honest with you.” One of the jurors interjected, “Right.”
When the prosecutor said “[t]here are only two verdicts you can give, guilty or not guilty,” a juror
said, “That’s right. Sure.” Finally, the prosecutor said, “You can send the most important
message here that if you do the crime you are going to do the time,” and a juror said, “That’s right.”
Appellant did not object.
       The jury found Appellant guilty as charged. The parties waived trial by jury for the
sentencing phase of the trial.     The trial court found that Appellant had two prior felony
convictions, and assessed a sentence of imprisonment for twenty–five years.              This appeal
followed.
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                                     EVIDENTIARY SUFFICIENCY
        In his first and second issues, Appellant argues that the evidence is legally and factually
insufficient to support his conviction. Specifically, Appellant contends that the State’s evidence
fails to establish that he hit Duncan with his fist.
Standard of Review
        Prior to 2010, Texas appellate courts reviewed both the legal and factual sufficiency of the
evidence to support a verdict in a criminal case. Legal sufficiency review is defined by Jackson
v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979). Factual
sufficiency review is defined by Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In
October 2010, the court of criminal appeals held that there is “no meaningful distinction between
the Jackson v. Virginia legal sufficiency standard and the Clewis factual sufficiency standard” and
overruled Clewis and its progeny. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010) (plurality opinion). The court held that “the Jackson v. Virginia 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.” See id. Accordingly, we will not independently consider Appellant’s argument that the
evidence is factually insufficient to support the verdict. See Martinez v. State, 327 S.W.3d 727,
730 (Tex. Crim. App. 2010).
        When reviewing the sufficiency of the evidence, we view all of the evidence in the light
most favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 315-16, 99
S. Ct. at 2786-87; Brooks v. State, 323 S.W.3d at 899. Under this standard, a reviewing court
does not sit as a thirteenth juror and may not substitute its judgment for that of the fact finder by
reevaluating the weight and credibility of the evidence.           See Brooks, 323 S.W.3d at 899;
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, a reviewing court defers
to the fact finder’s resolution of conflicting evidence unless that resolution is not rational in light of
the burden of proof. See Brooks, 323 S.W.3d at 899–900. The duty of a reviewing court is to
ensure that the evidence presented actually supports a conclusion that the defendant committed the
crime. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
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       The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State=s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for which the defendant
is tried.” Id.
       In this case, to support Appellant’s conviction for robbery, the State’s evidence had to
show that Appellant, while in the course of committing a theft of property, and with the intent to
obtain or maintain control of said property, intentionally, knowingly, or recklessly caused bodily
injury to Duncan. See TEX. PENAL CODE ANN. § 29.01(a)(1) (Vernon 2003). Bodily injury is
defined as “physical pain, illness, or any impairment of physical condition.” Id. § 1.07(8)
(Vernon Supp. 2010).
Analysis
       Appellant contends the evidence is insufficient to support the verdict because Duncan
could not say for sure that Appellant hit him with his fist. The State does not argue that it did not
have to prove that Appellant hit Duncan with his fist. Instead, the State argues that there is
sufficient evidence to support the jury’s conclusion that Appellant hit Duncan with his fist.
       The jury, as the finder of fact, is the sole judge of the weight and credibility of the
witnesses’ testimony. See TEX. CODE CRIM. PROC. ANN. arts. 36.13 (Vernon 2007), 38.04 (Vernon
1979). As such, it is within the province of the jury to weigh and consider the testimony, believing
those portions of the testimony they find credible, and setting aside other parts. See, e.g., Lafoon
v. State, 543 S.W.2d 617, 620 (Tex. Crim. App. 1976). In our review, we can disregard some
evidence that supports the verdict in the appropriate case, but we must be appropriately deferential
so as to avoid substituting our own judgment for that of the fact finder. Wesbrook v. State, 29
S.W.3d 103, 112 (Tex. Crim. App. 2000). In other words, our review should not substantially
intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony.
Id.; see also Brooks, 323 S.W.3d at 899.
       The jury in this case was confronted with conflicting testimony on the issue of whether
Appellant hit Duncan with his fists. In favor of the verdict, there is Duncan’s testimony that he
was dodging Appellant’s swinging fists, and that he was hit with Appellant’s fist. There is also
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Corley’s testimony that she saw Appellant hit Duncan, that he “started beating the hell out of him,”
and that she saw Appellant hit Duncan with his hand, which she assumed was a closed hand.
       As Appellant points out, there is evidence that is contrary to the verdict. While Duncan
said he was hit by a fist, he equivocated on cross examination, saying he was not certain he was hit
with Appellant’s fist. Also, Corley testified that she was not sure if Appellant’s hand was opened
or closed when he hit Duncan, and she had made inconsistent statements prior to trial.
Specifically, she told officers at the scene and in a statement that she had not seen a fight.
       This conflict in the evidence does not cause us to lack confidence in the verdict. There
was ample evidence that Appellant hit Duncan with his fist. If the jury understood Duncan’s
responses to cross examination questions to be an attempt to be very precise about whether he
actually saw Appellant’s fist hit his head, that would be a reasonable conclusion. Duncan saw a
number of things that were consistent with his being struck by Appellant’s fist, including fists
being directed at him immediately before he was hit. Even if he could not testify that he actually
saw the moment of impact when Appellant’s fist hit his body, the jury could decide to credit his
testimony that he was struck by Appellant’s fist and reconcile the remainder of the testimony
around that conclusion. Likewise, whether Corley was telling the truth at trial or in her statement to
the police is a credibility determination that is for the jury to make.
       Because the jury’s resolution of conflicting testimony and evidence was reasonable, we
hold that the evidence is legally sufficient to support the verdict. We overrule Appellant’s first
and second issues.


                                         JUROR COMMENTS
       In his third issue, Appellant contends he was deprived of his right to a fair and impartial
jury, and his rights to due process of law and due course of law were violated when a juror
responded vocally to the State’s closing argument.
       Appellant’s argument on this issue relates to the comments made by jurors during the
State’s closing argument. Appellant cites only two cases in support of his brief argument that
these outbursts deprived him of the right to a fair trial. He cites Uranga v. State, 247 S.W.3d 375




                                                   5
(Tex. App.–Texarkana 2008, pet. granted)2 for the proposition that a jury may not be partial. He
cites Taylor v. State, 420 S.W.2d 601, 607 (Tex. Crim. App. 1967),3 for the proposition, as stated
by the court in that case, that the “atmosphere essential to the preservation of a fair trial – the most
fundamental of all freedoms – must be maintained at all costs.” These are unassailable principles,
but Appellant does not advance the argument to address the circumstances presented in this case.
Generally, we will not make arguments for parties, and Appellant’s argument falls short of a fully
developed argument on this issue. See TEX. R. APP. P. 38.1(h); Wyatt v. State, 23 S.W.3d 18, 23
n.5 (Tex. Crim. App. 2000); see also Candenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App.
2000). To the extent that we understand Appellant’s argument to be that the outbursts constitute
reversible error, we disagree.
        First, a contemporaneous objection in the trial court is a prerequisite for most appellate
complaints. See TEX. R. APP. P. 33.1. Appellant did not object when the juror spoke. He also
did not request any relief or any investigation by the court into the motives or thoughts of the
jurors. Accordingly, there is no complaint preserved for our review.
        Second, we note that two of the three juror statements did not indicate bias. Appellant’s
argument did not depend on Duncan being an unreliable witness. Therefore, if the juror statement
showed that he agreed Duncan was being honest, that does not, by itself, show that the juror was
biased against the defense. Likewise, the prosecutor’s statement that only a guilty or not guilty
verdict was available is not a controversial statement and the statement agreeing with that assertion
does not indicate any kind of bias. The statement voicing agreement with the statement that a
person who commits a crime will “do the time” is closer to showing that the juror had chosen sides,
although the statement is also capable of being interpreted neutrally.
        These statements came at the end of the trial. We require that jurors not prejudge a case,
but at the end of a trial we ask them to make a judgment. Even if this juror’s agreement with the
statement that those who commit crimes should “do the time” is evidence that he had made a
judgment, it was a judgment that came after consideration of the evidence, not in advance of trial.
We do not know more about the statements that were made or if it would be possible to draw

        2
           The Uranga opinion was affirmed by the court of criminal appeals after the completion of briefing in this
case. See Uranga v. State, 330 S.W.3d 301 (Tex. Crim. App. 2010).
         3
           The Taylor decision has been overruled on other grounds. See Jackson v. State, 548 S.W.2d 685, 690 n.1
(Tex. Crim. App. 1977).
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additional conclusions as to whether there were jurors who had prejudged the case because
Appellant elected not to object when the statements were made.
         Because Appellant did not object when a juror or jurors made comments during closing
argument, he has failed to preserve this complaint for our review. We overrule Appellant’s third
issue.


                                                    DISPOSITION
         Having overruled Appellant’s three issues, we affirm the judgment of the trial court.



                                                                  SAM GRIFFITH
                                                                      Justice

Opinion delivered March 23, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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