Jeffrey Lee v. State
Jeffrey Lee v. State
Opinion
ACCEPTED 04-14-00256-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/4/2015 4:11:45 PM KEITH HOTTLE CLERK NO. 04-‐14-‐00256-‐CR
IN THE COURT OF APPEALS FILED IN 4th COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 3/4/2015 4:11:45 PM KEITH E. HOTTLE Clerk
JEFFREY LEE,
Appellant
V.
THE STATE OF TEXAS
Appellee
ON APPEAL FROM THE 187th DISTRICT COURT OF BEXAR COUNTY TEXAS CAUSE NUMBER 2012-‐CR-‐6806
BRIEF FOR THE APPELLANT
EDWARD F.
SHAUGHNESSY
E.
Locust Street
San Antonio, Texas 78212
(210) 212-‐6700
(210) 212-‐2178 (FAX)
SBN 18134500
ORAL ARGUMENT WAIVED
ATTORNEY FOR APPELLANT
PARTIES AND COUNSEL
TRIAL COUNSEL FOR THE STATE:
DAVID LUNAN & DARYL HARRIS Assistant Criminal District Attorneys W.
Nueva San Antonio, Texas 78205
TRIAL COUNSEL FOR APPELLANT:
THERESA CONNOLLY S.
St. Mary’s San Antonio, Texas 78205
APPELLANT’S ATTORNEY ON APPEAL:
EDWARD F.
SHAUGHNESSY, III
E.
Locust Street
San Antonio, Texas
(210) 212-‐6700
(210) 212-‐2178 Fax
SBN 18134500
TRIAL JUDGE:
RAYMOND ANGELINI 187th Judicial District Atascosa County, Texas
ii TABLE OF CONTENTS
PAGE(S)
Parties and Counsel…………………………………………………………………………………ii Table of Contents……………………………………………………………………………………iii Table of Authorities…………………………………………………………………………………iv Brief for the Appellant………………………………………………………………………………5 Summary of the Argument…………………………………………………………………………7 Appellant’s Sole Point of Error……………………………………………………………………8 Conclusion and Prayer………………………………………………………………………………16 Certificate of Service………………………………………………………………………………….17 Certificate of Compliance……………………………………………………………………………18
iii TABLE OF AUTHORITIES
PAGE(S)
STATE CASE(S)
Brooks v. State, 323 S.W.3d 893 (Tex. Crim.
App. 2010)……………………………………………...……..13
Dixon v. State 541 S.W.2d 437 (Tex. Crim.
App. 1976)……………………………...………………………..15
Gear v. State, 340 S.W.3d 743 (Tex. Crim.
App. 2011)………………………………………………………..13
Gormany v. State, 640 S.W.2d 303 (Tex. Crim.
App. 1982)…………………………………………………15
Jackson v. Virginia 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979)……………………………….13
Moore v State, 640 S.W.2d 303 (Tex. Crim.
App. 1982)………………………………………………..…….15
Padilla v. State, 326 S.W.3d 195 (Tex. Crim.
App. 2010)………………………………………………….…13
Spencer v. State, 628 S.W.2d 220 (Tex. App.-‐Corpus Christi, 1982, pet. ref’d.)……………………….15
Whatley v. State, 445 S.W.3d 159, (Tex. Crim.
App. 2014)………………………………………………...13
Winfrey v. State, 393 S.W.3d 763 (Tex. Crim.
App. 2013)………………………………...……...….………13
STATUTE(S) AND CODE(S)
Tex. Penal Code Ann. § 29.03 (West 2014)……………………………………………………………………….8
iv NO. 04-‐14-‐00256-‐CR
JEFFREY LEE,
§ COURT OF APPEALS, FOURTH
Appellant
§
V.
§ COURT OF APPEALS DISTRICT
THE STATE OF TEXAS, §
Appellee
§ SAN ANTONIO, TEXAS
BRIEF FOR THE APPELLANT
TO THE HONORABLE COURT OF APPEALS:
Now comes the appellant, Jeffrey Lee, and files this brief in Cause
No. 04-‐14-‐00256-‐CR.
The appellant appeals from a judgment of
conviction, entered against him on April 4, 2014. (C.R.-‐50,51) The
appellant was indicted by a Bexar County Grand Jury on August 27,
2012 for the offenses of Aggravated Robbery (Repeater) in cause
number 2012-‐CR-‐6806. (C.R.-‐5) The appellant exercised his right to a
jury trial.
The appellant was found guilty, by the jury, of the offense as
charged in the indictment. (C.R.-‐48) The appellant’s punishment was
assessed by the jury, at twenty-‐five years in confinement in the Texas
Department of Criminal Justice-‐Institutional Division as a repeat
offender. (C.R.-‐50, 51) Notice of appeal was filed thereafter and this
appeal has followed. (C.R.-‐61)
SUMMARY OF ARGUMENT
The evidence presented by the State of Texas was legally
insufficient to prove that the appellant was the perpetrator of the
offense due to the failure of the complainant to identify the
defendant/appellant as the actor who committed the acts alleged in the
indictment.
APPELLANT’S S0LE
POINT OF ERROR
The evidence is legally insufficient to support the judgment of
conviction for the offense alleged in the indictment.
STATEMENT OF APPLICABLE FACTS
As noted above the appellant was indicted by the Bexar County
grand jury for the offense of Aggravated Robbery.1 The indictment
alleged in pertinent part: “on or about the 15th day of January, 2012,
Jeffrey Lee, while in the course of committing theft of property and with
intent to maintain control of said property did intentionally and
knowingly threaten and place Javier Muro in fear of imminent bodily
injury and death, and the defendant did use and exhibit a deadly
weapon, to wit: a firearm.” (C.R.-‐5)
In support of the allegations in the indictment the Sate produced
the testimony of the complainant/victim, Javier Muro2. (R.R.4-‐18) Muro
proceeded to testify as to the events that occurred on the night of
January 12, 2012.
According to Muro, he along with his co-‐worker, Gilda
Tex. Penal Code Ann. § 29.03 (West 2014).
Hereinafter referred to as Muro.
Hernandez, had completed the closing of their place of employment3 at
roughly 9:30 P.M. and were in the parking lot of the store, when an
individual approached Hernandez, who was in a car being driven by her
sister. (R.R.4-‐22, 29) The individual in question was armed with a gun
and was aiming it at Gilda. (R.R.4-‐29, 30) Gilda and the driver then fled
the scene in their vehicle. (R.R.4-‐30) At that point the actor approached
Muro who was afoot. (R.R.4-‐30) Before Muro was able to enter his
vehicle the actor aimed the weapon at Muro and demanded his wallet.
(R.R.4-‐30) The wallet was then given to the actor.
(R.R.4-‐30) The actor
then demanded that Muro open the store and the two then proceeded
into the store, at which time the actor demanded that Muro open the
store’s safe. (R.R4-‐30, 31) Due to a time lock on the main safe the safe
could not be opened immediately.
Consequently, the cash drawers were
given to the actor who removed an unknown amount of cash from the
cash drawers and thereafter fled the scene on foot. (R.R.4-‐35, 36, 55)
With respect to the question of the identity of the actor, Muro
related that the perpetrator was a black man wearing a mask over his
face that revealed only his eyes, which he described as “big wide” or
“bug-‐eyed”. (R.R.4-‐39) Shortly after the actor had departed the scene,
A Dollar General store on Walzem Road. (R.R.4-19) law enforcement officers arrived at the scene. (R.R.4-‐57) At that time
Muro gave a statement to the investigating officers.
The following day
law enforcement came to the store with a “photo array” in an effort to
obtain an identification of the actor. (R.R.4-‐65, 66) After using a folder
to cover the lower half of the six faces displayed in the photo array Muro
chose photo number two as the one depicting his assailant and
remarked to the officer: “This is the guy”. (R.R.4-‐66) Muro then
proceeded to circle his selection on the photo array. (R.R.4-‐67) Muro
was never asked by the prosecutor whether the individual who had
committed the assault/robbery on him on the night in question, was the
defendant present in court.
As a result, Muro never identified the
defendant/appellant as the actor who had committed the offense as
outlined by Muro.
Muro’s co-‐worker, Gilda Hernandez4 also testified on behalf of the
prosecution. (R.R.4-‐94) Hernandez also testified that the actor was a
black man wearing a hoodie sweatshirt.
Some two weeks later,
Hernandez was asked to participate in a photo array identification
procedure conducted by investigators with the Bexar County Sheriff’s
Department.
At that time Hernandez viewed a photo array that
Hereinafter referred to as Hernandez. contained six photographs and asked whether the actor was depicted in
any of the photographs.
Hernandez then informed that the actor was
depicted in photo number two which she then circled and initialed.
(R.R.4-‐105, 106) Once again, the witness was not asked whether the
individual who was the actor on the night in question was in fact the
defendant/appellant.
Moreover, Hernandez was not asked whether the
individual whom she identified as photo number two was the
defendant/appellant.
After obtaining fingerprints from the scene, later shown to be
those of the defendant’s, members of the Sheriff’s Department were able
to locate a photograph of the defendant/appellant which was used to
compile the above-‐described photo arrays. (R.R.5-‐30 thru 44)
The final witness to relate information related to the identity of
the actor was Detective Ward of the Bexar County Sheriff’s Department.5
(R.R.5-‐60) Ward related that he had sought and obtained an arrest
warrant for an individual named Jeffrey Lee after obtaining a
photograph of an individual whose fingerprints resulted in a “hit” on a
computer generated fingerprint search which utilized the fingerprints
obtained at the scene of the offense. (R.R.5-‐73) Ward also related that he
Hereinafter referred to as Ward. had utilized a photo spread to obtain possible identifications of the
perpetrator from Muro and Hernandez. (R.R.5-‐76, 84) Ward related that
those two had both indicated that the individual depicted in photo
number two was the perpetrator. (R.R.5-‐76, 77) Ward also related that
the person identified in photo number two, by Muro, was an individual
named Jeffrey Lee and the person depicted in that photograph was the
defendant sitting in the courtroom.
(R.R.5-‐86) He related the same
scenario regarding the witness Hernandez. (R.R.5-‐87)
It is crucial to note that the State’s multiple stage attempt at
identifying the appellant/defendant as the perpetrator of the robbery
did not include any evidence that the individual purportedly depicted in
photo number two was the same Jeffrey Lee that had committed the
offense in question.
In order for the fact-‐finder to conclude that the
defendant/appellant was the Jeffrey Lee arrested and identified through
the use of the photograph in question the record would have to contain
evidence that the photograph in question was that of the
defendant/appellant.
That evidence is lacking.
What is contained in the
record is testimony that the individual purportedly depicted in the
photograph was named Jeffrey Lee and that an individual bearing that
name was in the courtroom.
ARGUMENTS AND AUTHORITIES
STANDARD OF REVIEW In reviewing the legal sufficiency of the evidence to support a conviction a reviewing court is mandated to consider all of the evidence in a light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom a rational fact finder could have found the elements of the offense beyond a reasonable doubt.
Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011). See: Jackson v. Virginia 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979). A reviewing court is required to defer to the jury’s credibility determinations because the jury is sole arbiter of the credibility of the witnesses Winfrey v. State, id. That standard gives full play to the responsibility of the jury to fairly resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts. Whatley v. State, 445 S.W.3d 159, (Tex. Crim.
App. 2014). The presence of conflicting inferences during the course of a trial gives rise to a presumption that the trier of fact resolved the conflicts in the favor of the prosecution. Padilla v. State, 326 S.W.3d 195 (Tex. Crim. App. 2010). The fact-finder is the exclusive judge of the credibility of the witnesses and of the weight to be assigned to their testimony. Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).
The ultimate fact that was to be resolved in the instant case was
the identity of the individual that wielded the gun at the Dollar General
on the night in question.
Neither of the two witnesses to that event
related that the appellant/defendant present in the courtroom was that
individual.
Hence the evidence is legally insufficient unless a reasonable
inference can be drawn that the person identified through the photo
array was the individual in the courtroom.
That inference could be
drawn only if the evidence revealed that the photograph in question
was of the individual in the courtroom.
That evidence is lacking.
Ward
testified only that the two witnesses had identified the person in the
photograph as their assailant and the photograph appeared to be that of
the individual in the courtroom.
It is not a reasonable inference that,
because of the existence of a photograph of a person, who might in fact
be the accused, that the photograph is in fact that of the accused.
That
fact could have potentially been supplied by one or both of the
witnesses.
It was not.
Officer Ward could have taken a “booking” photo
of the individual who had been arrested and charged with the offense in
question and inquired of the witnesses if the individual depicted in the
booking photograph was the individual who had committed the assault
conduct that formed the basis for the indictment.
He did not.
The evidence presented by the State, on the issue of identification,
required the jury to infer facts that were not reasonable: that being that
the identifying photo was that of the individual who had been arrested
for the offense in question and appeared in court to answer the
indictment.
That inference amounts to an unreasonable one and should
not be sanctioned by this Court.
As a result the evidence is legally
insufficient to support the judgment of conviction.
See: Gormany v. State,
640 S.W.2d 303 (Tex. Crim.
App. 1982); Moore v State, 640 S.W.2d 303
(Tex. Crim.
App. 1982); Dixon V. State 541 S.W.2d 437 (Tex. Crim.
App.
1976); Spencer v. State, 628 S.W.2d 220 (Tex. App.-‐Corpus Christi, 1982,
pet. ref’d.).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant, prays that this
Court, reverse the judgment of the trial Court and remand the cause for
the entry of a judgment of acquittal.
Edward F. Shaughnessy, III EDWARD F.
SHAUGHNESSY, III E.
Locust San Antonio, Texas 78212 (210) 212-‐6700 (210) 212-‐2178 (fax)
[email protected] Attorney for the appellant
CERTIFICATE OF SERVICE
I, Edward F.
Shaughnessy, III , attorney for the appellant, hereby
certify that a true and correct copy of the instant brief was served on
Nicholas LaHood, attorney for the appellee, by United States Mail, by
mailing the document to W.
Nueva, San Antonio, Texas 78205 on
this the _4_ day of March, 2015.
Edward F. Shaughnessy, III Edward F.
Shaughnessy, III Attorney for the appellant
CERTIFICATE OF COMPLIANCE
I, Edward F.
Shaughnessy, III, attorney for the appellant, hereby
certify that the instant document contains 2281 words.
Edward F. Shaughnessy, III Edward F.
Shaughnessy, III
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