No. 05-05-01590-CR.
December 6, 2006. DO NOT PUBLISH.
On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 23341-86 .
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
Opinion By Justice Wright.
Antonio M. Chavez appeals his conviction for aggravated robbery. After the jury found appellant guilty, it assessed punishment at fifty years' confinement. In two issues, appellant contends (1) the evidence is factually insufficient to support his conviction, and (2) the trial court erred by admitting certain extraneous offense evidence. We overrule appellant's issues and affirm the trial court's judgment.
Appellant does not specify if he is challenging the legal or factual sufficiency of the evidence. Nor does appellant cite to the standard of review under this issue. In his prayer for relief, appellant asks only that this Court reverse the trial court's judgment and remand for a new trial. Thus, we conclude appellant is challenging only the factual sufficiency of the evidence.
Background
Dewey Driggars testified that he was washing his silver Ford Taurus at the Kwik Kar Wash in Crandall when he was approached by two young Hispanic men asking him for change. After Driggars told the men he did not have any change, one of the men pulled out a gun, cocked it, and told Driggars to get in his car. Driggars put his hands up and told the man to take his car. After refusing to get into his car several times, Driggars finally pushed the man and began running. As he was running, Driggars heard two gunshots-one of which hit him in the buttock. The shooter then drove away in a Cadillac and the other man drove away in Driggars's Taurus. At trial, Driggars testified that it was possible that appellant was the shooter, but he could not positively identify him. Michael Ramirez testified he was working at Kwik Kar the day Driggars was shot. As he was driving a customer's car to check its brakes, Ramirez saw two men in a Cadillac drive into the car wash. Ramirez pulled into the bay to finish inspecting the customer's car. Because he was suspicious of the two men in the Cadillac, he pointed them out to his boss. A short time later, Ramirez heard two gunshots and saw Driggars's run from the car wash and fall to the ground. Ramirez then saw one man "speed away" in Driggars's car and the other in the Cadillac. Ramirez was unable to identify appellant in a photographic lineup. Travis Williams testified that he was driving by the Kwik Kar Wash when he heard two gunshots. He looked toward the car wash and saw a man fall to the ground. Williams also saw two Hispanic men, one of whom jumped in a mid-sized car and the other was running. Williams called 911 and followed the man in the mid-sized car as he drove away. After a time, the police arrived and stopped the man. Officer Steve Allen testified on the day Driggars was shot, Allen was a traffic officer for the Seagoville Police Department. He was notified there had been an aggravated robbery in Crandall and a suspect was being followed by a civilian witness. Shortly thereafter, he saw a silver Ford Taurus driving at a high rate of speed being followed by a pickup. The driver of the pickup pointed at the Taurus. Allen and other officers stopped the car and determined it was being driven by Saul Jurado. Jurado testified that he was arrested driving Driggar's car shortly after the robbery. According to Jurado, on the day of the shooting, appellant drove his gray Cadillac to Jurado's house. Jarado went "drinking and driving" with appellant. After driving for a time, they stopped at a car wash. Appellant got out of the car and approached a man washing his car. Appellant asked the man for money and the man "waved his hand to an area, to a direction." Appellant then pulled a gun from his pocket, cocked it, and pointed it at the man. Appellant tried to get the man to get into his car, but the man pushed appellant and ran away. Appellant shot at the man two times as he ran, and the man screamed and fell to the ground. Appellant then told Jurado to take the man's car. Jurado was stopped a short time later by the police. Officer Kelly White testified he is a patrol officer for the Dallas Police Department. According to White, about two weeks after Driggars was shot, White stopped a car that matched the description of a BOLO (be on the lookout for) that had been issued following an aggravated robbery in Crandall. Appellant was driving the car. Officer Carcone, who helped stop the car, asked appellant for a driver's license and proof of insurance. When appellant did not have either a license or proof of insurance, Carcone asked appellant to step out of the car. White took appellant to the rear of the vehicle. After appellant got out of the car, Carcone saw the "handle of a handgun that was sticking from underneath the seat in which [appellant] was sitting." He also found a magazine with eight bullets between the console and the driver's seat. Wade Thomas, a firearms and tool mark examiner for the State, testified that the gun found under appellant's seat fired the shell casings found at the Kwik Kar Wash. After hearing this and other evidence, the jury found appellant guilty of aggravated robbery. This appeal followed. Factual Sufficiency
In his first issue, appellant contends the evidence is factually insufficient to support his conviction. Appellant does not dispute a robbery occurred or that Driggars was shot during the course of the robbery. Rather, he contends the State failed to show that he was the person who robbed and shot Driggars. According to appellant, this lack of identification testimony renders the evidence factually insufficient to support his conviction. We disagree. When reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light and ask whether a fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, No. PD-469-05, 2006 WL 2956272, at *7 (Tex.Crim.App. Oct. 18, 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the fact finder's verdict. Watson, 2006 WL 2956272, at *8. We cannot conclude a conviction is "clearly wrong" or "manifestly unjust" simply because we would have voted to acquit. Watson, 2006 WL 2956272, at *8. The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony and may draw reasonable inferences and make reasonable deductions from the evidence. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Additionally, we consider all of the evidence, whether properly or improperly admitted, in determining the factual sufficiency of the evidence. See Young v. State, 976 S.W.2d 771, 773 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). To obtain a conviction in this case, the State had to prove appellant committed robbery and used or exhibited a deadly weapon. See Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 2003). The State could prove identity through direct and circumstantial evidence and reasonable inferences from that evidence. See Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986); Hardesty v. State, 656 S.W.2d 73, 77-78 (Tex.Crim.App. 1983); Roberson v. State, 16 S.W.3d 156, 157 (Tex.App.-Austin 2000, pet. ref'd). Viewing the evidence under the appropriate standard, we conclude the evidence is factually sufficient to support the conviction. Juardo identified appellant as the shooter. And, Juardo's version of the incident was corroborated by Ramirez's, Williams's, and Driggars's testimony and by evidence that the gun used in the shooting was found two weeks later in appellant's possession. Although appellant maintains Juardo's, Williams's, and Driggars's testimony was not credible, this Court may not substitute its assessment of witness credibility for the jury's assessment. See Watson, 2006 WL 2956272, at *8; Jones, 944 S.W.2d at 647-48. Further, to the extent appellant complains we should not consider improperly admitted evidence of extraneous offenses, when conducting a sufficiency review we are to consider all the evidence, whether properly or improperly admitted. See Young, 976 S.W.2d at 773. We overrule appellant's first issue. Extraneous Offense Evidence
In his second issue, appellant contends that White's testimony about appellant's car being involved in an aggravated robbery and shooting in Dallas-not the Crandall robbery-should have resulted in a mistrial. According to appellant, we must reverse his conviction because the trial court's instruction to disregard the evidence was insufficient to cure the harm. We cannot agree. After White testified about a BOLO issued in connection with the Dallas robbery, appellant objected and asked for a hearing outside the presence of the jury. At the hearing, he complained about White's testimony violating his motion in limine. The trial judge asked appellant's attorney if "he had a suggested instruction to the jury? That they disregard it?" Appellant's attorney agreed he wanted the trial judge to instruct the jury. The trial judge then stated "In view of the fact the jury's been out for a few minutes I don't see any other way of instructing them to disregard it other than do it that way. If you have another suggestion, please let me know." Appellant's attorney asked for a discussion off the record. Thereafter, the jury was called back into the courtroom and was instructed to disregard the complained-of testimony. Appellant then sought a mistrial which was denied. We review a trial court's denial of a motion for a mistrial under an abuse-of-discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). A mistrial is an extreme remedy for prejudicial events that occur at trial and should be exceedingly uncommon. Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). A mistrial is required only when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999); Herrero v. State, 124 S.W.3d 827, 836 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Generally, a prompt instruction to disregard will cure error resulting from an improper question and answer regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000); see also Whitaker v. State, 977 S.W.2d 595, 600 (Tex.Crim.App. 1998) (instruction cured error when witness testified that appellant was physically and mentally abusive toward her); Paster v. State, 701 S.W.2d 843, 848 (Tex.Crim.App. 1985) (instruction rendered testimony concerning appellant's involvement in two extraneous murders harmless); Herrero, 124 S.W.3d at 836 (instruction cured error when witness stated he was testifying in exchange for government protection from death threat by appellant). After reviewing the record, we conclude the trial court did not abuse its discretion in denying appellant's motion for a mistrial because the improper testimony was not clearly calculated to inflame the jurors' minds nor was it of such a character as to suggest the impossibility of withdrawing the impression left upon the jury. The trial court's instruction to disregard was prompt and unequivocal, and was fully sufficient to cure any harm from any impression left upon the jury. We conclude the immediate instruction to disregard White's testimony cured any error, and the trial court properly denied the motion for mistrial. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.