TO THE HONORABLE COURT:

No. 05–08–00863–CR
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS
RICARDO ROBERTO SMITH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
Appeal from the 282d Judicial District Court
of Dallas County, Texas
Cause No. F07–47683
APPELLANT‘S BRIEF
Counsel of Record:
Lynn Richardson
Chief Public Defender
Katherine A. Drew
Chief, Appellate Division
Dallas County Public Defender‘s Office
Brian W. Portugal
Assistant Public Defender
Dallas County Public Defender‘s Office
State Bar Number: 24051202
133 N. Industrial Blvd., LB 2
Dallas, Texas 75207
(214) 653-3550 (telephone)
(214) 653-3539 (fax)
ATTORNEYS FOR APPELLANT
LIST OF PARTIES
APPELLANT
Ricardo Roberto Smith
DEFENSE COUNSEL AT TRIAL
Thomas W. Mills, Jr.
Teresa A. Cain
Attorneys at Law
5910 N. Central Expressway
Suite 900
Dallas, TX, 75206
APPELLANT‘S COUNSEL ON APPEAL
Brian W. Portugal
Assistant Public Defender
Dallas County Public Defender‘s Office
133 N. Industrial Blvd., LB 2
Dallas, Texas 75207
STATE‘S COUNSEL AT TRIAL
David Pitcher
Stephanie Councilman
Assistant District Attorneys
Dallas County District Attorney‘s Office
Frank Crowley Courts Building
133 N. Industrial Blvd., LB-19
Dallas, Texas 75207-4399
STATE‘S COUNSEL ON APPEAL
Craig Watkins
(or his designated representative)
Dallas County District Attorney‘s Office
Frank Crowley Courts Building
133 N. Industrial Blvd., LB-19
Dallas,
Texas
75207
ii
TABLE OF CONTENTS
LIST OF PARTIES ............................................................................................................. ii
INDEX OF AUTHORITIES .............................................................................................. iv
STATEMENT OF THE CASE ........................................................................................... 1
ISSUE PRESENTED .......................................................................................................... 1
The evidence was factually insufficient to support the verdict.
STATEMENT OF FACTS .................................................................................................. 1
SUMMARY OF THE ARGUMENT .................................................................................. 4
ARGUMENT....................................................................................................................... 4
PRAYER ............................................................................................................................. 6
CERTIFICATE OF SERVICE ............................................................................................ 7
iii
INDEX OF AUTHORITIES
Cases
Johnson v. State,
23 S.W.3d 1 (Tex. Crim. App. 2000) .............................................................................. 4
Marshall v. State,
210 S.W.3d 618 (Tex. Crim. App. 2006) ........................................................................ 4
Martinez v. State,
129 S.W.3d 101 (Tex. Crim. App. 2004) ........................................................................ 4
iv
TO THE HONORABLE COURT:
Appellant Ricardo Roberto Smith submits this brief in support of his appeal of the
judgment of the 282d Judicial District Court of Dallas County, Texas in cause number
F07–47683.
STATEMENT OF THE CASE
A grand jury charged Appellant by indictment with aggravated robbery by use of a
deadly weapon. (RR2: 27).1 Appellant pled not guilty and proceeded to trial. (RR3: 7).
A jury found Appellant guilty, and the trial court sentenced him to 12 years‘
imprisonment. (CR: 33; RR4: 34; RR5: 8). Appellant gave timely notice of appeal. (CR:
37).
ISSUE PRESENTED
The evidence was factually insufficient to support the verdict.
STATEMENT OF FACTS
Jose Benitez was robbed at gunpoint by two men in the alleyway behind his
apartment. (RR: 16). One suspect pointed a gun at him while the other demanded his
wallet, punching him in the face when he refused. Id. at 54. Mr. Benitez sustained no
injuries except a minor wound to his face. Id. at 22. An unidentified neighbor called the
police. Id. at 52. Police responded to the call, and Officer Allen took a statement from
Mr. Benitez. Id. at 66−67. No other witnesses were identified. Id. at 73. Mr. Benitez
gave some of his statement in English; however, an unidentified neighbor translated
1
The indictment was missing from the record. On Appellant‘s motion, the Court abated this appeal for a hearing
before the trial court to determine whether the State could prove up the missing indictment. The State did so.
Appellant cites the Court to that portion of voir dire during which the State read the indictment to the venire panel.
Spanish for the police at the scene. Id. at 68.
The police report showed that Mr. Benitez described the suspects as two black
males, one over six feet tall, weighing 180 pounds, and the other about five feet eight
inches tall, weighing around 150 pounds. Id. Mr. Benitez described the gunman as
wearing a white shirt and black jeans. Id. at 81. At trial, he testified that in his original
report to the police, he described the gunman as wearing camouflaged pants and a black
shirt. Id. at 52−53. He also testified that the gunman was wearing a black ski cap. Id. at
46−49. Mr. Benitez told police that the gunman had no facial hair. Id. at 42. At trial, he
testified that the gunman had a mustache. Id. Mr. Benitez told the police that the other
suspect was wearing a white shirt and blue shorts. Id. at 83. Mr. Benitez described the
gun to the police as a square–shaped gun. Id. at 44.
The police report, however,
described the gun as a nine millimeter ―blue steel semiautomatic‖ due to limited options
provided on the report form. Id. at 78. No explanations or clarifications were made
about Mr. Benitez‘s description of either the suspects or the gun in the narrative sections
of the form. Id. The report also showed that Mr. Benitez identified the getaway car as a
―white, approximately mid-nineties Ford four door‖, possibly a Crown-Victoria. Id. at
89. At trial, Mr. Benitez testified that the car was a little white car. Id. at 41. Mr.
Benitez described the two suspects to the police as being about 25 years old. Id. at 142.
No suspects fitting that description were found that day. Id. at 69. Police were unable to
recover the gun or any of Mr. Benitez‘s stolen property. Id.
Twelve days later, Mr. Benitez saw someone he believed to be a suspect in the
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robbery. Id. at 97. He flagged down a patrol car and gave officer Karnes a description.
Id. Mr. Benitez described the suspect as a ―tall, skinny, black, male with a black shirt and
. . . army pants.‖ Id. No one fitting that description was found in the area. Id.
The next day, Officer Karnes responded to a disturbance call at a convenience
store near Mr. Benitez‘s apartment. Id. at 100. Appellant was present at the scene, and
Officer Karnes gave him a warning for criminal trespass. Id. at 114. Appellant also fit
the description that Mr. Benitez gave to Officer Karnes the previous day. Id. at 100.
Officer Karnes supplemented the original robbery report with this information and
notified Detective Lujan that she had identified a robbery suspect. Id. at 102.
About two months after the incident, Mr. Benitez was asked to identify a suspect
from a six-photo lineup. Id. at 29. Detective Lujans compiled the lineup using the
description taken at the scene of the crime and Officer Karnes‘s supplement to the report.
Id. at 125. At no time were the six suspects present for a live lineup. Id. at 61. Mr.
Benitez identified Appellant from the lineup as the gunman. Id. at 128. Based upon the
identification of the suspect in the lineup, Detective Lujans filed an affidavit and obtained
an arrest warrant for Appellant. Id. at 145. The affidavit stated that ―the complainant
positively identified [Appellant] as the person who pushed him to the ground, while the
other unknown suspect pointed a gun at his face and stole his property.‖ Id. at 146. Mr.
Benitez later denied the accuracy of this statement, saying that Appellant was the
gunman.
Id. The affidavit also stated that ―the suspects fled on foot‖ and made no
mention of either of the suspects wearing a ski cap. Id. at 147−49. Detective Lujans
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admitted at trial that he made a mistake regarding inconsistencies between the original
report and the information given in his affidavit. Id. at 151.
SUMMARY OF THE ARGUMENT
The complaining witness—the only witness to the robbery—gave such
inconsistent and contradictory testimony that Appellant‘s conviction, based on the
complainant‘s identification of him, is manifestly unjust, requiring a new trial.
ARGUMENT
The State‘s case turned entirely on the testimony of the complainant—testimony
so flawed and contradictory that a conviction resting on it is manifestly unjust.
Applicable Law
When deciding whether the evidence is factually sufficient, the reviewing court
examines all the evidence without the prism of the light most favorable to the verdict and
will set aside the verdict where it is ― ‗clearly wrong or manifestly unjust‘ or ‗against the
great weight and preponderance of the evidence.‘ ‖ Marshall v. State, 210 S.W.3d 618,
625 (Tex. Crim. App. 2006). In a factual sufficiency review, a reviewing court is
authorized to disagree with the fact finder‘s determination of guilt. Martinez v. State, 129
S.W.3d 101, 106 (Tex. Crim. App. 2004). While ―due deference‖ must be given to the
fact finder‘s determinations concerning the weight and credibility of the evidence,
reversal of the fact finder‘s determination is appropriate when the evidence of guilt is so
weak that allowing a conviction to stand would be a manifest injustice. Id.; Johnson v.
State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).
4
Application of Law to the Facts
Jose Benitez, the complainant, was the only witness to the robbery and did not
identify Appellant in a photographic lineup until two months after the robbery. (RR3: 29,
73). And what he described to the police after the robbery diverged substantially from
his trial testimony:
The police report described the gunman as wearing a white shirt and black jeans,
but at trial Benitez testified that he had described the gunman as wearing
camouflaged pants, a black shirt, and a black ski cap. (RR3: 68, 46–49,
52–53).
He told the police that the gunman had no facial hair,
but at trial he testified that the gunman had a moustache. (RR3: 42).
He described the getaway car to the police as ―approximately mid–nineties Ford
four door‖ possibly a Crown-Victoria,
but at trial he testified that it was a little car. (RR3: 41, 89).
Detective Lujan‘s arrest warrant affidavit recited that Benitez identified Appellant
as the person who pushed Benitez to the ground,
but the day before trial, Benitez told the Detective that Appellant was the
gunman. (RR3: 146).
When coupled with the fact that there were no other witnesses and neither the gun nor
Benitez‘s property was recovered, these inconsistencies are too great to lend any
probative value to Benitez‘s testimony. What the inconsistencies are probative of is a
5
desire by Benitez to make the description of a man he saw on the street conform to his
memory of what one of his robbers looked like.
On this record, Appellant‘s conviction is thus manifestly unjust. The Court should
therefore reverse the trial court‘s judgment and remand this cause for a new trial.
PRAYER
Appellant prays that the Court reverse the trial court‘s judgment and remand this
cause for a new trial.
Respectfully submitted,
Lynn Richardson
Chief Public Defender
Dallas County
Katherine A. Drew
Chief, Appellate Division
Dallas County Public Defender‘s Office
_______________________________
Brian W. Portugal
Assistant Public Defender
Dallas County Public Defender‘s Office
State Bar Number: 24051202
133 N. Industrial Blvd., LB 2
Dallas, Texas 75207
(214) 653-3550 telephone
(214) 653-3539 fax
Attorneys for Appellant
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CERTIFICATE OF SERVICE
A copy of this brief has been hand-delivered to the Dallas County Criminal
District Attorney‘s Office, Appellate Division, 133 N. Industrial Blvd., Dallas, Texas
75207 on May ___, 2010.
_______________________________
Brian W. Portugal
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CERTIFICATE OF COMPLIANCE
I certify that this submitted CD or e-mail attachment of the brief complies with the
following requirements of the Court:
1. The brief is submitted on a CD or by e-mail attachment;
2. The CD or e-mail attachment is labeled with the following information:
A. Case Name: ___________________________________
B. The Appellate Case Number: _____________________________
C. The Type of Brief: _________________________________________
D: Party for whom the brief is being submitted:
_________________________________________________
E. The Word Processing Software and Version Used to Prepare the Brief:
_________________________________________________
3. The CD or e-mail attachment contains only an electronic copy of the brief and
the appendix. The documents in the appendix conform to the requirements of
Texas Rules of Appellate Procedure 9.8 and 38.1(k).
4. The CD or e-mail attachment is free of viruses or any other files that would be
disruptive to the Court=s computer system. The following software, if any, was
used to ensure the brief is virus-free: ____________________________ .
5. I understand that a copy of this brief may be posted on the Court’s website and
that the electronically filed copy of the brief becomes part of the Court’s record.
6. Copies have been sent to all parties associated with this case.
_________________________________
(Signature of filing party and date)
_________________________________
(Printed name)
_________________________________
(Firm)
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