                                  NO. 07-09-00114-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                      JUNE 9, 2010


                         BRANDON KEITH MILES, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


                FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                    NO. 58,805-A; HONORABLE HAL MINER, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION


       Appellant, Brandon Keith Miles, was convicted of robbery1 and sentenced to

confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-

TDCJ) for a period of five years and assessed a fine of $1,500. Appellant appeals

alleging that the evidence was legally and factually insufficient. We affirm.




       1
           See TEX. PENAL CODE ANN. § 29.02(a)(2) (Vernon 2003).
                         Factual and Procedural Background


      On October 23, 2008, Ashley Harris and Patrick Ledford left their apartment at

the Huntington Pointe Apartments to get something to eat. When they got to Ledford’s

car, Harris had the keys and was going to drive. As Harris opened the car door, a black

male approached her with a salutation and held out his hand as if to shake hands with

her. The assailant grabbed Harris and attempted to pull her toward him. Harris was

able to pull away and backed off from the assailant. Upon hearing and seeing what was

happening, Ledford grabbed the assailant by the arm and attempted to spin him around

to face Ledford. The assailant pulled his shirt up and put his hand in the waist band of

his pants stating, “All I want is your keys. I need to go home. I have a gun.” Harris

then threw the keys toward the assailant, who picked them up off the ground and

hurried off around one of the buildings in the apartment complex. Harris and Ledford

were both extremely frightened by the incident and, upon gaining access to a phone,

called 911.


      The first officer to respond was Justin Castillo of the Amarillo Police Department.

Castillo arrived on the scene and obtained a description of the events and a partial

description of the assailant. Both witnesses described the assailant to be a black male,

wearing a black “do-rag,” blue jersey-type T-shirt, and blue jeans. The victims stated

the assailant was between 6’ and 6’1” in height. Each victim thought that they would be

able to recognize the assailant if they saw him again, however, Harris was less sure of

this than Ledford. After taking down the information from the victims and reporting the




                                           2
incident, Castillo spoke to the apartment maintenance man, Armando Mondragon, who

had arrived to change the locks on the victims’ apartment.2


      Castillo quizzed Mondragon about knowing anyone within the apartment complex

that might fit the general description of the assailant. Mondragon advised that he had

seen someone that might fit the description on the other side of the apartment complex.

Upon finding out the apartment where the possible suspect might be found, Castillo

went to apartment 1102. At apartment 1102, Castillo questioned appellant, Boris Wyatt,

and Mauricio Rubio. None of the three individuals were dressed in clothing consistent

with what the victims had described the assailant as wearing. All three denied any

knowledge of or involvement in the robbery.


      Castillo then left the scene only to be called back a short time later.     Upon

returning to the victims’ apartment, Castillo learned that the car that the keys went to

had been stolen. The victims described hearing the alarm on the car go off and seeing

the car being driven out of the apartment’s parking lot.       Neither victim saw the

perpetrator get in the vehicle. Castillo reported the car as stolen and left the scene.

Later, at about 6:15 to 6:30 a.m., Castillo returned to the apartment and advised the

victims that the stolen car had been involved in a wreck near Wichita Falls and that a

suspect, Boris Wyatt, was in custody.


      Detective Louis Sanchez of the Amarillo Police Department was assigned to the

robbery case on October 27, 2008. Upon learning about the wrecked car and capture


      2
         The lock change was required because the apartment key was on the same key
ring with the car keys.
                                           3
of Boris Wyatt, Sanchez prepared a photo lineup that included Wyatt’s picture. Both

Harris and Ledford came to the police department headquarters and viewed the photo

lineup.     Neither was able to pick anyone out of the lineup.         A second lineup was

prepared that same day and the victims were asked to come back to the police station

to view it. At the time Harris and Ledford were shown the lineup, they were not allowed

to speak with each other and each had their own individual copy of the photo lineup to

view. Each picked out appellant as the perpetrator of the robbery.


          Prior to trial, the record reflects that there was no motion filed that contested the

fairness or validity of the lineup procedure used by the police. Likewise, during trial,

appellant’s counsel did not object to the introduction of the photo lineups that Harris and

Ledford viewed.       At trial, both victims identified appellant as the perpetrator of the

robbery.     Appellant’s trial counsel vigorously cross-examined both victims regarding

their ability to see the perpetrator and what they had told the police on the night of the

incident regarding their ability to identify the perpetrator. Even so, Harris and Ledford

were steadfast in their identification of appellant.


          The appellant’s defense was that the witnesses were simply mistaken in their

identification. Appellant’s argument was that, since it was Wyatt who was found in the

wrecked car, it must have been Wyatt who accosted the victims in the parking lot and

took the keys. The jury convicted appellant, thereby impliedly rejecting his contention,

and sentenced appellant to five years in the ID-TDCJ and assessed a fine of $1,500.

By four issues, appellant attacks the legal and factual sufficiency of the evidence.




                                                4
Disagreeing with appellant, we find the evidence legally and factually sufficient and

affirm the judgment of the trial court.


                                Sufficiency of the Evidence


       Appellant challenges both the legal and factual sufficiency of the evidence.

Therefore, we are required to conduct an analysis of the legal sufficiency of the

evidence first and then, only if we find the evidence to be legally sufficient, do we

analyze the factual sufficiency of the evidence. See Clewis v. State, 922 S.W.2d 126,

133 (Tex.Crim.App. 1996).


                                    Standard of Review


Legal Sufficiency


       In assessing the legal sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v.

State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency

review, an appellate court may not sit as a thirteenth juror, but rather must uphold the

jury’s verdict unless it is irrational or unsupported by more than a mere modicum of

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

the legal sufficiency of the evidence against a hypothetically correct jury charge. See

Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).



                                            5
Factual Sufficiency


       When an appellant challenges the factual sufficiency of the evidence supporting

his conviction, the reviewing court must determine whether, considering all the evidence

in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).

In performing a factual sufficiency review, we must give deference to the fact finder’s

determinations if supported by evidence and may not order a new trial simply because

we may disagree with the verdict. See id. at 417. As an appellate court, we are not

justified in ordering a new trial unless there is some objective basis in the record

demonstrating that the great weight and preponderance of the evidence contradicts the

jury’s verdict. See id. Additionally, an appellate opinion addressing factual sufficiency

must include a discussion of the most important evidence that appellant claims

undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

The Texas Court of Criminal Appeals has recently declared that, when reviewing the

evidence for factual sufficiency, the reviewing court should measure the evidence in a

neutral manner against a “hypothetically correct jury charge.”          Vega v. State, 267

S.W.3d 912, 915 (Tex.Crim.App. 2008) (citing Wooley v. State, 273 S.W.3d 260, 268

(Tex.Crim.App. 2008)).


                                          Analysis


       To sustain a conviction for the offense of robbery, the State had to prove beyond

a reasonable doubt that 1) appellant, 2) on or about the 26th day of October, 2008, 3)

while in the course of committing theft of property, and with intent to obtain and maintain

                                              6
control of said property, 4) intentionally or knowingly, 5) threatened or placed Ashley

Renee Harris in fear of imminent bodily injury or death. As stated above, the only

contested issue at trial was the identity of appellant as the perpetrator of the crime. The

record establishes all of the other elements of the offense without any objection or

challenge by appellant.


       In addressing the issue of identity, appellant contends that the victims’ testimony

was not reliable because neither one gave a detailed description of the assailant at the

scene, Harris had stated that the assailant was wearing a blue jersey-type T-shirt, while

at trial she said it was a red jersey-type T-shirt; and both witnesses said they did not get

a good look at the assailant because the event happened so fast.               Additionally,

appellant seems to be contending that the identification during trial was not reliable.


       Prior to addressing appellant’s issue on the legal sufficiency of the evidence, the

question of reliability of the in-court identification should be considered. As noted in the

factual and procedural background portion of this opinion, appellant never challenged

the in-court identification of appellant by the witnesses by way of a pretrial motion or an

objection. Therefore, to the extent that appellant may be attempting to now challenge

the in-court identification based upon some alleged taint in the photo lineup, that issue

was waived by appellant’s inaction before and during trial.         See TEX. R. APP. P.

33.1(a)(1).


Legal Sufficiency


       The testimony at trial established that both witnesses identified appellant in a

photo lineup within a few days of the robbery. At trial, both witnesses again identified
                                             7
appellant as the perpetrator of the crime. Appellant’s trial counsel conducted a very

thorough cross-examination of both witnesses.           During the cross-examination, trial

counsel pointed out some inconsistencies between the witnesses’ trial testimony and

what they told the initial officer on the scene. At the end of the day, each witness was

solid in their identification of appellant, both in the photo lineup and at trial. In this case,

there are two eyewitnesses, whereas we are instructed that the testimony of a single

eyewitness is sufficient to support the conviction of an accused. See Aguilar v. State,

468 S.W.2d 75, 77 (Tex.Crim.App. 1971); Walker v. State, 180 S.W.3d 829, 832

(Tex.App.—Houston [14th Dist.] 2005, no pet.).


       When applying the standard of reviewing the evidence in the light most favorable

to the jury’s verdict, we cannot say that this jury acted irrationally when it found

appellant guilty beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Ross, 133

S.W.3d at 620. Accordingly, we overrule appellant’s contention that the evidence was

legally insufficient.


Factual Sufficiency


       In reviewing the record for the factual sufficiency of the evidence, we do so

without the prism of “in the light most favorable to the jury’s verdict.” Watson, 204

S.W.3d at 415.      Appellant contends that, based upon the cross-examination of the

identity witnesses, the identification was unreliable. This is so for a number of reasons.

First, the officer’s identification of the jersey the assailant wore as blue differed from

Harris’s trial testimony that it was red. Second, each witness told the officer they were

not sure if they could identify the assailant and that they did not get a good look at the

                                               8
assailant. Finally, Wyatt, who was around the scene of the robbery with appellant, was

later found in possession of the car stolen from Ledford by using the keys that the

assailant had previously obtained. See Sims, 99 S.W.3d at 603 (requiring a reviewing

court to address the most important evidence that appellant contends undermines the

confidence of the court in the jury’s verdict.) Appellant’s analysis totally ignores the fact

that both witnesses viewed a photo lineup with Wyatt’s picture in it and neither of them

identified Wyatt as having been the perpetrator of the robbery. In fact, upon viewing a

subsequent photo lineup containing appellant’s picture, each witness quickly identified

appellant as the assailant. The factual sufficiency of the evidence as to identification

simply boils down to the jury’s reconciling some conflicting testimony. It is the jury’s job

to reconcile the conflicts in the testimony.      See Johnson v. State, 23 S.W.3d 1, 7

(Tex.Crim.App. 2000). Further, the weight to be given the evidence is also within the

province of the jury. Id. Finally, as stated in the legal sufficiency portion of this opinion,

the testimony of a single eyewitness is sufficient to convict a defendant. Aguilar, 468

S.W.2d at 77; Walker, 180 S.W.3d at 832.


       Therefore, we cannot say that the jury acted irrationally in finding appellant guilty

beyond a reasonable doubt nor can we say that the great weight and preponderance of

the evidence contradicts the jury’s verdict. Watson, 204 S.W.3d at 415. Accordingly,

we overrule appellant’s issues regarding the factual sufficiency of the evidence.




                                         Conclusion
                                              9
      Having overruled appellant’s issues, we affirm the judgment of the trial court.




                                                       Mackey K. Hancock
                                                            Justice




Do not publish.




                                           10
