Mark Len Bennett v. The State of Texas--Appeal from 252nd District Court of Jefferson County

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State: Texas

Court: Texas Northern District Court

Docket No: 09-05-00035-CR

Case Date: 02/23/2005

Plaintiff: Samuel Earl Mosley

Defendant: The State of Texas--Appeal from 54th District Court of McLennan County

Preview:Samuel Earl Mosley v. The State of Texas--Appeal from
54th District Court of McLennan County
IN THE
TENTH COURT OF APPEALS
No. 10-05-00359-CR
Samuel Earl Mosley,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2004-1282-C
MEMORANDUM Opinion
A jury convicted Samuel Earl Mosley of aggravated robbery and assessed his punishment at 99 years based on an
enhancement as a habitual offender. The sole issue is Mosley s contention that the evidence is factually insufficient to
prove he used or exhibited a deadly weapon in the commission of a robbery. We will affirm.
When reviewing a factual insufficiency complaint, we ask, [c]onsidering all of the evidence in a neutral light, was a
jury rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.
Crim. App. 2004). The Court in answering this question must determine whether the evidence in support of the verdict
is too weak to support the finding of guilt beyond a reasonable doubt or whether the contrary evidence is so strong that
the beyond-a-reasonable-doubt standard could not have been met. Id.
Here, complainant Michael York, assistant manager of Whataburger, testified that Mosley, a maintenance worker at
the same store, came into his office brandishing a knife and demanding money from the restaurant s safe. York
complied, and Mosley then demanded York s cell phone and car keys. As he left, Mosley ordered York to remain in
his office. Another employee testified that he entered York s office later and found him afraid and shocked. The two
discovered the restaurant s phone line had been cut and York s car was missing from the parking lot. They used a cell
phone to notify police of the robbery. Police found York s car abandoned and later found Mosley, still wearing his
Whataburger uniform, with pockets full of cash. At trial, the State also offered evidence of Mosley s three previous
criminal convictions, two of which were robberies, and an arrest for another robbery.
In support of his sufficiency challenge, Mosley points to three pieces of evidence. First, Mosley contends the
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credibility of York s testimony was undercut by his admission that he would lose his job if the store safe were left open
and unattended as Mosley claimed. Second, Mosley claims that the lack of fingerprints in York s stolen vehicle makes
the automobile theft claim suspect. Finally, despite having testified regarding his previous convictions on direct
examination, Mosley complains of the State s characterization of him as an ex-convict and contends he was convicted
as a criminal generally rather than for the particular crime charged.
Mosley s complaint challenges the authority and weight given by the jury to the State s witnesses and evidence. The
jury is the sole judge of the weight and credibility of witness testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.
Crim. App. 2002). Great deference is owed to the credibility determinations reached in the trial court. See Guzman v.
State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1985). This degree of deference to the trial court s credibility and factual
determinations is required to ensure the appellate court does not substitute its own opinion for that of the jury in
violation of the defendant s constitutional right to a trial by jury. See Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim.
App. 1996).
By its verdict the jury chose to believe the State s version of events. See Parker v. State, 119 S.W.3d 350, 355 (Tex.
App. Waco 2003, pet. ref d). We must defer to the jury in its resolution of alternative theories of the case. Vasquez, 67
S.W.3d at 236. Thus, we cannot conclude that the State s evidence is too weak to support a guilty verdict nor is the
appellant s contravening evidence so strong as to preclude the beyond-a-reasonable-doubt standard from being met.
See Zuniga, 144 S.W.3d at 484-85.
With regard to the State s use of prior convictions as evidence in the crime charged and in the sentencing as an
habitual offender, this is not an issue which can be addressed in a factual sufficiency review. See Hanks v. State, 137
S.W.3d 668, 671 (Tex. Crim. App. 2004). A factual sufficiency review is appropriate only as to the sufficiency of the
State s evidence for each element of the crime charged, but not as to the admissibility of such evidence. Id.
Accordingly, we overrule Mosley s sole issue of factual insufficiency of the evidence and affirm the judgment.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed October 11, 2006
Do not publish
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