By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Despite photo misidentification, evidence was
factually sufficient to support finding that defendant committed criminal
mischief (99-4-29)
On November 25, 1998, in an opinion
almost one year old, the El Paso Court of Appeals held that despite a photo
identification by the witness of another person as the perpetrator, the evidence
was factually sufficient to support the finding that the juvenile on trial
committed criminal mischief.
99-4-29. In the Matter of R.H., UNPUBLISHED, No. 08-96-00413-CV, 1999 WL
1037619, 1999 Tex.App.Lexis ____ (Tex.App.—El Paso 11/25/98)[Texas Juvenile
Law 168 (4th Edition 1996)].
Facts: R.H., a juvenile, appeals from a judgment finding him to be a delinquent
child as well as from a disposition order placing him on probation and electric
monitoring for a period of one year.
During Appellant's delinquency adjudication hearing, the court heard from Steven
Micklo, Jr., ("Micklo"). He testified that on August 27, 1996 at 4:30
p.m., he was at his father's apartment complex located at 2908 Magoffin Street
in El Paso, Texas. While washing his car, he saw Appellant on his knees writing
on the walls of an adjacent bakery with a spray can. Micklo and his father
yelled at Appellant to stop writing on the wall. Appellant said some "bad
words" and continued writing on the wall. Micklo tried to grab Appellant
but he walked away and called to his two friends. They started throwing rocks
and bottles at the father and son. The two followed Appellant and his friends to
an alley where they started to spray paint some walls. Micklo's sister called
the police.
When the police arrived, the witness told the officers that he and his father
had tried to stop Appellant but he had already left. He told the police officers
that prior to their arrival, he and his father had seen Appellant a block away
at a corner store but he was no longer there. Micklo told the officers that he
could identify Appellant and he got into the police car. Appellant was found
three blocks away from the bakery. The police placed Appellant in front of the
vehicle and asked Micklo if he was sure it was the same individual. The witness
stated that when he identified Appellant at the scene, there was no doubt that
he was the individual he saw spray painting the wall.
On cross-examination, the witness was asked if earlier in the morning defense
counsel and another individual had shown him some photographs so that he could
pick out the individual who spray painted the wall. The witness replied
affirmatively and, on the stand, he was shown the photographs. Micklo indicated
that, earlier, he had picked out a photograph of an individual who was not the
Appellant sitting in the courtroom. The witness related that there was a picture
of Appellant included in the photos that he was shown. Micklo was queried if the
showing of the photographs caused him to question his identification of
Appellant at the scene. Micklo responded that when he was shown the photographs,
it had been three weeks since he had seen Appellant at the scene and he was
trying to remember Appellant's face but he could not. The witness stated that on
the day of the incident, he saw the individual clearly and he saw what he was
wearing, and that he was positive of his identification to the police. Micklo
was never asked to identify Appellant in the courtroom.
On re-direct examination, the witness stated that he was twenty feet from the
individual when he first saw him. He then got close enough to touch him. His
head was shaved. On recross-examination, Micklo stated that he did not observe
the individual's face when he attempted to grab him. The closest face-to-face
examination occurred at a distance from the witness to the jury bench. The
record does not reveal any measurement of this distance.
Daniel Arriaga ("Arriaga"), a police officer with the El Paso Police
Department, testified that he responded to a call at 2900 Magoffin Street
regarding a criminal mischief in progress. He spoke to a witness named Micklo.
Micklo got into the police vehicle and they went looking for the individuals
involved in the criminal mischief. The witness identified the Appellant as the
person involved in the offense. Arriaga identified Appellant in the courtroom as
the person Micklo identified at the scene. Arriaga stated the witness did not
hesitate in identifying Appellant and he appeared to be confident of his
identification.
After the State rested, Appellant testified in his own defense. He stated that
on the day of the incident, he was outside his house and he was stopped by some
police officers. He had intended to go to the store and he stopped to visit with
two friends for ten minutes. He was stopped by the police and taken to the
bakery. He denied spray painting the walls.
The court found that Appellant had engaged in delinquent activity by committing
the lesser-included offense of criminal mischief--a class B misdemeanor.
Held: Affirmed.
Opinion Text: In Point of Error No. One, Appellant asserts that the court erred
in finding Appellant guilty because the evidence presented was factually
insufficient to support the verdict. In reviewing a factual sufficiency of the
evidence challenge, this Court considers all of the evidence, but does not view
it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126,
129 (Tex.Crim.App.1996); Taylor v. State, 921 S.W.2d 740, 745 (Tex.App.--El Paso
1996, no pet.). We will set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis,
922 S.W.2d at 129; Taylor, 921 S.W.2d at 745. In conducting a factual
sufficiency review, the reviewing court cannot substitute its conclusions for
those of the fact finder. Davila v. State, 930 S.W.2d 641, 647 (Tex.App.--El
Paso 1996, pet. ref'd); Taylor, 921 S.W.2d at 746. It is not within the province
of this Court to interfere with the jury's resolution of conflicts in the
evidence or to pass on the weight or credibility of the witness's testimony.
Davila, 930 S.W.2d at 647; Taylor, 921 S.W.2d at 746. Where there is conflicting
evidence, the fact finder's verdict on such matters is generally regarded as
conclusive. Id. However, we must balance all of the evidence, both the evidence
which tends to prove the existence of a vital fact, as well as evidence which
tends to disprove its existence, to determine whether any rational trier of fact
could find the essential elements as alleged in the charging instrument beyond a
reasonable doubt. Chesnut v. State, 959 S.W.2d 308, 310-11 (Tex.App.--El Paso
1997, no pet.); Lozano v. State, 958 S.W.2d 925, 928 (Tex.App.--El Paso 1997, no
pet.). If we find factual insufficiency, we must vacate the conviction and
remand the case for a new trial. Clewis, 922 S.W.2d at 133-35.
Appellant maintains that as the eyewitness identified another individual as the
person who committed the offense from the photos shown to him prior to trial,
the evidence is factually insufficient. Appellant also contends that the witness
only identified Appellant from the clothes he was wearing and his shaved head,
and not from any observation of Appellant's face.
The State presented evidence that the eyewitness observed Appellant engaging in
criminal mischief. He first observed this activity from twenty feet away and he
approached Appellant to the point he could grab him. The witness stated that he
was positive that the individual he identified to the police was the same
individual that he saw spray painting the wall. The eyewitness stated that he
saw Appellant's face from an unknown distance-although a distance contained
within the courtroom. He testified that he saw Appellant clearly and saw what he
was wearing. The police officer stated that the witness did not hesitate in his
identification.
Appellant presented his testimony that he was not involved in the criminal
activity. Appellant also has evidence in the record that the witness identified
another individual in the photographs although those photographs are not before
this Court. Given all of the above, we do not find that the evidence is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust. Accordingly, Point of Error No. One is overruled.
In Point of Error No. Two, Appellant contends that the court erred in refusing
to admit the photographs used to impeach the eyewitness's prior identification
of the Appellant. At trial, Appellant offered the photographs used to impeach
the eyewitness into evidence. The State objected, arguing the lack of a proper
predicate. The court refused to admit the photographs. We note that these
photographs are not in the record before us. Nor is there any evidence regarding
the composition of the photographs or the manner in which they were demonstrated
to the eyewitness. Tex.R. Evid. 103 requires that in cases of rulings which
exclude evidence, the substance of the evidence was made known to the court by
offer, or was apparent from the context within which questions were asked.
Appellant asserts that the testimony of the eyewitness shows the reliability of
the pretrial identification process in that he was able to state that one of the
photographs was of the Appellant and the witness was able to so state. However,
absent the testimony or photographs, we are unable to determine the
admissibility of the offered evidence or what harm, if any, accrued from its
exclusion. We find that Appellant had failed to preserve error. Point of Error
No. Two is overruled.
Having overruled each of Appellant's points of error, we affirm the judgment of
the trial court.