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Douglas v. State

Court of Appeals of Texas, Fifth District, Dallas
Dec 21, 2006
No. 05-06-00198-CR (Tex. App. Dec. 21, 2006)

Summary

noting that a jury was free to decide if a witness testified truthfully or was influenced by his agreement with the State

Summary of this case from MUNN v. STATE

Opinion

No. 05-06-00198-CR.

Opinion Filed December 21, 2006. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F06-00011-X AFFIRM

Before Justices Whittington, Moseley, and O'Neill Opinion By Justice O'Neill


MEMORANDUM OPINION


Appellant Nicholas Frederick Douglas was convicted by a jury of capital murder for murder committed in the course of a robbery and received life imprisonment. In four issues, appellant argues (1) the evidence is legally and factually insufficient to establish he caused Frank Hargraves' death in the course of committing and attempting to commit robbery; (2) the trial court erred in overruling his objections to the State's attempts to impeach its own witness; and (3) the trial court erred in denying his request for self-defense in the application paragraph of the capital murder charge. We affirm the trial court's judgment.

Background

On December 3, 2004, Frank Hargraves and Byron Johnson traveled by bus to an area near The Bunk House on Ervay Street, which is known for drug use and drug sales. They sold crack throughout most of the afternoon and into the evening, with Johnson providing the drugs and Hargraves keeping the money. At some point, Johnson gave Hargraves back the unsold drugs. Later in the evening, appellant, along with another individual identified as "Red," approached Hargraves and asked "Who told you you could come down here and serve?" Then appellant told him to "drop out," which meant empty his pockets and give him anything of value. Although appellant had a gun, Hargraves responded "F — you. I ain't giving you nothing." Appellant cocked his gun and asked again, but Johnson and Hargraves ran away. Red tripped Johnson and then took anything of value from his pockets. Appellant shot Hargraves, and Johnson saw him rummage through Hargraves' pockets. Appellant then approached Johnson, pointed the gun at his head, and asked what he had on him. When Johnson showed him his empty pockets, he said "Get the f — out of South Dallas and don't ever come back." Appellant and Red then ran away. Hargraves died at the scene from the single gunshot wound. Following the shooting, a crowd of people gathered around the scene until the police arrived. Upon investigation, the police found Hargraves' wallet, which contained money, along with other items scattered around the scene. They did not, however, find any drugs on Hargraves. After several witnesses identified appellant in a photo array, he was arrested and charged with capital murder for murder committed in the course of a robbery. During trial, appellant's girlfriend provided alibi testimony and stated he was with her on December 3, 2004 and did not leave. After a jury convicted appellant of capital murder, the trial court assessed a mandatory life sentence. This appeal followed.

Sufficiency of the Evidence

In his first two issues, appellant contends the evidence is legally and factually insufficient to establish he caused Frank Hargraves' death in the course of committing and attempting to commit robbery. After reviewing the record, we cannot agree. The standard of review for legal and factual sufficiency of the evidence is well established. When deciding whether evidence is legally sufficient to support a conviction, we must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App. 2005). When reviewing the factual sufficiency of the evidence, we look at all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 416-17 (Tex.Crim.App. 2006). We will reverse a jury's verdict only if the record clearly shows a different result is required to prevent a manifest injustice. Id. at 417; Johnson v. State, 23 S.W.3d 1, 12 (Tex.Crim.App. 2000). Under either standard, the fact finder is the sole judge of witness credibility and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (legal sufficiency review); Johnson, 23 S.W.3d at 7 (factual sufficiency review). As the reviewing court, we must give deference to the fact finder's decisions about the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9. A person commits a capital murder offense if he intentionally causes the death of an individual while in the course of committing, or attempting to commit, certain felonies, including robbery. Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003), § 19.03(a)(2) (Vernon Supp. 2006). At a minimum, to show attempted robbery, the State must carry the burden of proving beyond a reasonable doubt appellant had the specific intent to commit robbery, and he committed an act amounting to more than mere preparation for robbing the victim. See Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003) (criminal attempt). Thus, if the State introduced evidence from which the jury could rationally conclude that appellant possessed the specific intent to obtain or maintain control of the victim's property either before or during the commission of the murder, it has proven that the murder occurred in the course of a robbery. Maldonado v. State, 998 S.W.2d 239, 243 (Tex.Crim.App. 1999); Dillard v. State, 931 S.W.2d 689, 696 (Tex.App.-Dallas 1996, pet. ref'd). In resolving the issue, the requisite intent may be inferred from circumstantial evidence and from appellant's conduct. Maldonado, 998 S.W.2d at 243. Appellant specifically contends the evidence is legally and factually insufficient because Johnson, who has a history of mental illness and was off his medication at the time of the murder, testified that the shooter had braids, which is contrary to Anthony Floyd's testimony, who was also present on the scene when the offense occurred. He also challenges Floyd's credibility because the State entered into a deal with Floyd regarding pending charges in exchange for his testimony. He further relies on Johnson's testimony that he did not actually see appellant take anything from Hargraves. He also relies on testimony that money was found in Hargraves' wallet and several other items, such as a hat and radio, were found at the scene indicating that a robbery did not occur. Further, he insinuates that any one of the many individuals who scattered around the scene before the police arrived could have taken the missing drugs from Hargraves. First, as to the credibility of Johnson's and Floyd's testimony, we must give deference to the jury's decisions about the weight and credibility of such evidence and may not substitute our own judgment. Johnson, 23 S.W.3d at 9. Johnson freely admitted to a history of mental illness requiring medication and that he hallucinates if he does not have it for more than a week. At trial, he testified that he had not had his medication in four months; however, this did not affect his memory of what occurred on December 3, 2004 or the veracity of his testimony at trial. Appellant questioned Johnson about these issues; however, the jury, as sole judge of witness credibility and the weight to be given his testimony, was free to believe him and conclude his mental illness did not affect his recollection of the night in question or his testimony at trial. Id. Likewise, as the reconciler of evidence, the jury was free to decide any factual discrepancies such as whether the person who shot Hargraves had braids. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). The same is also true for Floyd's testimony. The jury was fully aware of the deal between him and the State regarding a pending offense and his decision to testify. However, as the sole judge of his credibility, they were free to decide he testified truthfully regarding the events in question and was not influenced by his agreement with the State. Id. Although appellant claims no one testified they saw him take anything from Hargraves and money was later found in his wallet, this does not mean a robbery or attempted robbery did not occur. See Scott v. State, 934 S.W.2d 396, 401 (Tex.App.-Dallas 1996, no pet.) (holding it is not necessary for the State to show that any property was actually stolen in order to prove the victim was murdered in the course of a robbery). The jury heard specific testimony from two witnesses that appellant confronted Hargraves with a gun and told him to "drop out." Both witnesses testified this meant he was getting robbed. When Hargraves refused and ran away, appellant shot him and then rummaged through his pockets. Even though money was found in Hargraves' wallet and no one saw appellant actually take anything from him, the jury could infer from the evidence that appellant possessed the specific intent to obtain or maintain control of the victim's property either before or during the commission of the murder, and such actions amounted to more than mere preparation. Tex. Pen. Code Ann. § 15.01(a). Further, they could infer appellant had committed a robbery because the drugs Johnson gave Hargraves earlier in the evening were not found on him. Based on this evidence, a rational jury could have found the elements of the offense beyond a reasonable doubt. See Childs v. State, 21 S.W.3d 631, 635 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (concluding evidence was legally and factually sufficient to support murder committed in the course of a robbery where cab driver was shot and eyewitness testimony stated defendant pulled gun on driver and ordered him to hand over money and his keys to the cab). Accordingly, after applying the appropriate standards of review, we conclude the evidence is both legally and factually sufficient to support appellant's conviction. His first and second issues are overruled.

Witness Impeachment

In his third issue, appellant claims the trial court erred in overruling his objections to the State's attempts to impeach its own witness because the State failed to lay a proper predicate. During a hearing outside the presence of the jury, appellant objected to the witness testimony because the State was attempting to call an individual for the sole purpose of impeaching him with a prior inconsistent statement. The trial court allowed the witness to testify. During his testimony, appellant objected for the reason "stated in the earlier hearing outside the presence of the jury" and that the testimony was "improper impeachment." Appellant also requested a running objection to the witness's testimony because it was improper impeachment. He never objected to the trial court that the State failed to lay a proper predicate under Texas Rule of Evidence 613(a). As a prerequisite to presenting a complaint on appeal, the record must show appellant made the complaint to the trial court by a timely objection that states the grounds with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. Tex. R. App. P. 33.1(a). If the trial court objection does not comport with the issue raised on appeal, then the issue is not preserved for review. Rice v. State, 195 S.W.3d 876, 882 (Tex.App.-Dallas 2001, pet. ref'd). Here, appellant's complaint on appeal does not comport with his trial court objection. See In re A.B., 133 S.W.3d 869, 875 (Tex.App.-Dallas 2004, no pet.) (holding appellant failed to preserve issue when he did not object at trial that the proper predicate had not been laid to impeach witness). Further, appellant's objection regarding the State calling an individual for the sole purpose of impeaching him with a prior inconsistent statement and then his later general objection of improper impeachment was not specific enough within the context to inform the trial court that he was actually objecting to the State's failure to lay a proper predicate. See, e.g., Sandow v. State, 787 S.W.2d 588, 596 (Tex.App.-Austin 1990, pet. ref'd). As such, appellant has not properly preserved his complaint for review. Saldano v. State, 70 S.W.3d 873, 889 (Tex.Crim.App. 2002) (failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence). His third issue is overruled.

Jury Charge Instruction

In his fourth issue, appellant alleges the trial court erred in denying his request for self-defense in the application paragraph of the capital murder charge. The charge included self-defense in the application paragraph for the lesser-included offense of murder, but not in the application paragraph for capital murder. It is well established that a robber has no right of self-defense against his victim. Tex. Pen. Code Ann. § 9.31(b)(4) (Vernon 2003) (the use of force against another is not justified if the actor provoked the other's use or attempted use of unlawful force); Westley v. State, 754 S.W.2d 224, 230 (Tex.Crim.App. 1988) ("It would be ludicrous to consider the victim's justified actions as provocation for the appellant's illegal act."); Childs, 21 S.W.3d at 635-36 (applying general rule that an actor who provokes the difficulty is not entitled to assert self-defense). Appellant has provided no compelling argument for ignoring this well established precedent. As such, we overrule appellant's fourth issue. Having overruled all of appellant's issues, we affirm the trial court's judgment.


Summaries of

Douglas v. State

Court of Appeals of Texas, Fifth District, Dallas
Dec 21, 2006
No. 05-06-00198-CR (Tex. App. Dec. 21, 2006)

noting that a jury was free to decide if a witness testified truthfully or was influenced by his agreement with the State

Summary of this case from MUNN v. STATE
Case details for

Douglas v. State

Case Details

Full title:NICHOLAS FREDERICK DOUGLAS, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Dec 21, 2006

Citations

No. 05-06-00198-CR (Tex. App. Dec. 21, 2006)

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