Summary
holding that prosecutor's reference to complainant as "victim" during voir dire did not constitute reversible error
Summary of this case from CANO v. STATEOpinion
No. 14-04-00406-CR
Memorandum Opinion filed November 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 960,471. Affirmed.
Panel consists of Justices HEDGES, FOWLER, and FROST.
MEMORANDUM OPINION
Challenging his conviction for aggravated robbery, appellant, Ben Johnson, presents five issues on appeal. Appellant complains about various rulings made by the trial court during his jury trial and he also alleges the pretrial line-up procedures were impermissibly suggestive. We affirm appellant's conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the evening of September 2, 2003, the complainant, Roger Gregory, stopped at a pay phone in a well-lit strip center to call his sister and inform her not to make dinner as he had already eaten. While Gregory was talking to his sister, a man, later identified as appellant, pulled his vehicle into the parking lot and parked directly behind Gregory's vehicle. Appellant was accompanied by another man, later identified as Derrell Parker. Appellant and Parker exited their vehicle and approached Gregory. Appellant pointed a gun at Gregory and demanded his money and possessions, threatened to kill him, and struck his head with the gun. Gregory then lost consciousness for approximately a second. After Gregory regained his senses, appellant placed the gun to Gregory's head and directed him to Gregory's vehicle. Once appellant and Parker completed their search of Gregory's car, appellant placed his gun to Gregory's head, directed Gregory away from the vehicle, and told Gregory not to turn around. After noticing that the gun was no longer pointed at his head, Gregory turned around and saw appellant and Parker driving away in Gregory's vehicle and in the one in which they had arrived. Gregory immediately went across the street to a fire station for help. The police were called and after they arrived Gregory told them he had been robbed, and he gave a description of the assailants. The following morning, Sergeant Jim Schultea located Gregory's vehicle and immediately called for a patrol car. There were three people in the vehicle: appellant, Parker, and a female. When the patrol car arrived, Parker accelerated the vehicle and it slid into a muddy ditch. Parker jumped out and attempted to flee to an abandoned building. Both appellant and Parker were apprehended, arrested, and brought to the police station for a line-up. Gregory was brought to the police station to view the live line-up. Gregory immediately identified appellant and Parker as his assailants. Parker admitted at appellant's trial that he and appellant had robbed Gregory and stolen his vehicle. Appellant was charged with aggravated robbery, enhanced by two prior felony convictions. A jury found appellant guilty and assessed his punishment at fifty years' confinement in the Texas Department of Criminal Justice, Institutional Division.II. ISSUES PRESENTED
Appellant asserts the following issues on appeal:(1) The prosecutor committed reversible error by stating during voir dire that he prosecutes only cases in which he knows the defendant is guilty.
(2) The trial court erred in overruling appellant's objection to the prosecutor's alleged comment on appellant's failure to testify.
(3) The trial court erred in overruling his objection to the prosecutor's use of the word "victim."
(4) The pretrial line-up was impermissibly suggestive.
(5) The trial court erred in not allowing appellant to impeach the complainant with evidence of misdemeanor convictions.
III. ANALYSIS
A. Did the prosecutor commit reversible error in telling jurors that the Harris County District Attorney's Office prosecutes only cases in which it is convinced that the person charged is guilty of the offense? In his first issue, appellant contends that the prosecutor made an inappropriate comment during voir dire when he stated that the District Attorney's office prosecutes only cases in which the prosecutors are convinced of the defendant's guilt. Specifically, the prosecutor made the following statement:So, let me talk about something that prosecutors do. A common misconception that people have is that all we do is try and convict people, seek convictions, put everybody behind bars that get arrested. That's not true. Our job is to seek justice. That's codified in the code. The prosecutor's job is to seek justice. Now, just because the police investigate a case and hand it over to us doesn't mean the investigation stops there. We at the DA's office do our own investigations. We have investigators, police officers who work for us and we have them dig up additional evidence, go talk to more witnesses. We do not prosecute a case unless we think that person is guilty of the offense charged. We never prosecute a case unless we're convinced that the person is guilty of that offense. We dismiss cases everyday. Okay. And some just for lack of evidence. We may think a person is guilty but we don't think we can prove it. So I just want to clear up that misconception.(emphasis added.) Generally, a defendant's failure to timely object to an alleged error waives any complaint on appeal. See Tex.R.App.P. 33.1(a); Norris v. State, 902 S.W.2d 428, 446 (Tex.Crim.App. 1995). A defendant must object to a prosecutor's statement made during voir dire in order to preserve a complaint for appellate review. See Draughon v. State, 831 S.W.2d 331, 336-37 (Tex.Crim.App. 1992) (emphasis added); see also Hill v. State, 827 S.W.2d 860, 863-64 (Tex.Crim.App. 1992) (indicating that error related to racially-motivated jury strikes may be waived by failure to object timely); Jenkins v. State, 870 S.W.2d 626, 629 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (holding that appellant waived complaint by failing to object at trial that the prosecutor made an improper comment about appellant's failure to call witnesses during the trial); Day v. State, 784 S.W.2d 955, 957 (Tex.App.-Fort Worth 1990, no pet.) (concluding that defendant waived complaint related to juror's qualifications when appellate complaint differed from trial objection). Appellant makes this complaint for the first time on appeal. Because appellant failed to voice an objection to the prosecutor's statement at trial, appellant failed to preserve error and thus presents nothing for our review. Accordingly, we overrule appellant's first issue.
B. Did the trial court err in overruling appellant's objection when the prosecutor purportedly commented on appellant's failure to testify?
In his second issue, appellant contends the trial court erred in overruling his objection when the prosecutor allegedly commented on his failure to testify. More specifically, appellant complains of the following statement that the prosecutor made during his closing argument: "You've heard from two of the three people who are there that night, the victim, and the co-defendant." At trial, appellant objected that this statement was an improper comment on appellant's failure to testify. The trial court overruled the objection. We agree with the trial court's ruling. Though a prosecutor may not comment on the defendant's failure to testify, the comment which forms the basis of appellant's complaint does not rise to the level of an improper comment on appellant's decision not to testify. A prosecutor's comment to the jury on an accused's failure to testify violates the state and federal constitutional privileges against self-incrimination. Bird v. State, 527 S.W.2d 891, 893-94 (Tex.Crim.App. 1975). However, a remark by the prosecutor only amounts to a comment on defendant's failure to testify if the prosecutor manifestly intends the remark to be, or the remark is of such a character that a typical jury would naturally and necessarily take it to be, a comment on the defendant's failure to testify. See Wead v. State, 129 S.W.3d 126, 130 (Tex.Crim.App. 2004). It is not sufficient that the comment might be construed as an implied or indirect allusion to the defendant's failure to testify. See id. To violate the defendant's right against self-incrimination, the comment must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear. Bustamonte v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001). The comment in question in this case does not necessarily refer to appellant's failure to testify because there were actually four people present when the robbery occurred — appellant, Parker, Gregory (the complainant), and a female that accompanied Parker and appellant on the evening in question. Parker testified that while he and appellant robbed Gregory, the female remained in appellant's car, which was parked behind Gregory's vehicle. Therefore, other than appellant, there were three other witnesses to the events in question. As such, the prosecutor's comment, which suggests that the jury had not heard from "one" witness, does not necessarily refer to appellant as the missing witness, as the witness could have been the female who remained in the car. Even if the prosecutor's remark were improper, the remark does not demonstrate any willful or calculated effort on the part of the State to deprive appellant of a fair and impartial trial. See Biagas v. State, ___ S.W.3d ___, 2005 WL 267659 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (holding that prosecutor's statement during closing argument of guilt phase, in which prosecutor objected to statement made by defense counsel's during his closing argument that defendant "did not know what was going on" by stating that defendant has not "testified" concerning what he knew, while improper, did not deprive defendant of fair trial). Moreover, this comment does not constitute a comment on appellant's failure to testify. See Tenner v. State, 763 S.W. 877, 881-82 (Tex.App.-Fort Worth 1988, pet. ref'd) (holding prosecutor's comment on absence of any witnesses corroborating defendant's out-of-court description of how victim's injury occurred was not a comment on defendant's failure to testify since one other witness, other than defendant, witnessed the injury; comment could be a reference to the other witness' failure to testify). Accordingly, we overrule appellant's second issue.C. Did the trial court err in overruling appellant's objection to the prosecutor's reference to a complaining witness as a "victim" in the State's voir dire?
In his third issue, appellant contends the trial court erred in overruling his objection to the prosecutor's reference to a complaining witness as a "victim" during voir dire. During a lengthy discussion of the venireperson's abilities to convict a defendant on the basis of one witness in a hypothetical case, the following exchange occurred:Venireperson: By witness are you meaning the person who was-the crime was perpetrated against that would be a witness that would be called a witness?
Prosecutor: Anybody who takes the stand is called a witness.
Venireperson: Okay. So again it could be one-on-one or one on one.
Prosecutor: But common sense you know and I'm going to put the victim on and they're the witness. They were there.
Defense Attorney: Your Honor, I'm going to object to that category. He's the complaining witness.The Court: That's overruled. (emphasis added). To preserve a complaint for appellate review, a person must voice an objection stating the grounds for the ruling he seeks with sufficient specificity to make the trial court aware of the complaint. See TEX. R. APP. P. 33.1(a)(1) (A). Regarding specificity, a defendant must let the trial court know what he wants, why he thinks he is entitled to it, and do so clearly enough for the judge to understand the request. Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992). On appeal, appellant states that the prosecutor should not have been allowed to refer to the complainant as the "victim" because it constituted an impermissible comment on the weight on the evidence. At trial, appellant's objection was different in that he objected to that "category." See Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003) (holding that an objection at trial not comporting with the complaint on appeal does not preserve error for appellate review). Presuming the trial court reasonably could have interpreted appellant's use of the phrase "that category" as a reference to the prosecutor's use of the term "victim," appellant's objection failed to inform the trial court why he thought this was a comment on the weight of the evidence. Appellant's objection lacked sufficient specificity to preserve any error. Absent a specific objection, appellant presents nothing for appellate review. Presuming without deciding that this comment was improper, any error was harmless. Non-constitutional error that does not affect substantial rights is subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b). See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998); Matz v. State, 21 S.W.3d 911, 912 (Tex.App.-Fort Worth 2000, pet. ref'd). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Substantial rights are not affected by the erroneous admission of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002) (citations omitted). Neither the appellant nor the State has any formal burden to show harm or harmlessness under Rule 44.2(b). See Burnett v. State, 88 S.W.3d 633, 638 (Tex.Crim.App. 2002). Rather, it is the appellate court's duty to assess harm after a proper review of the record. Id. In conducting the harm analysis, we consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the trial court's instructions to the jury, the State's theory, any defensive theories, closing arguments, and even voir dire if material to the appellant's claim. Motilla, 78 S.W.3d at 355-56; Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). In assessing harm, the factors to be considered are the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. Motilla, 78 S.W.3d at 355; Morales, 32 S.W.3d at 867. Whether the State emphasized the error can also be a factor. See Motilla, 78 S.W.3d at 356. We ask if a reasonable probability exists that the evidence, either alone or in context, moved the jury from a state of nonpersuasion to one of persuasion beyond a reasonable doubt. Wesbrook, 29 S.W.3d 103, 119 (Tex. (Tex.Crim.App. App. 2000). The existence of substantial evidence of the defendant's guilt may be the most significant factor in a harm analysis. Id. at 359. Here, the evidence of appellant's guilt is overwhelming. The complainant (Gregory) testified that he made eye contact with appellant when appellant and Parker approached and robbed him. Except for the few seconds that he was stunned from the blow to his head, Gregory was alert and conscious during the entire robbery. Gregory identified appellant as his assailant both out of court and in court. Moreover, Parker testified that he and appellant committed the robbery. Furthermore, unlike in the cases upon which appellant relies in support of his argument on this issue, it is undisputed that Gregory was a victim of a robbery. Most compelling, though, is the fact that appellant and Parker were found driving Gregory's stolen vehicle the following day and both men fled when the police tried to detain them. See Bigby v. State, 892 S.W.2d 864, 884 (Tex.Crim.App. 1994) (holding that flight evinces a consciousness of guilt). Appellant presented no defensive evidence. Finally, the State did not emphasize any alleged error; the State merely made the comment in response to a hypothetical posed during questioning of a potential juror. We conclude that there is not a reasonable possibility that the alleged error affected the jury's deliberations or moved them from a finding of not guilty to a finding of guilty. See Wimbrey v. State, 106 S.W.3d 190, 192 (Tex.App.-Fort Worth 2003, pet. ref'd). If the complaint had not been waived, any error would be deemed harmless. Accordingly, we overrule appellant's third issue.
D. Were the pretrial line-up procedures impermissibly suggestive?
In his fourth issue, appellant contends that Gregory's in-court identification of him was tainted by impermissibly suggestive line-up procedures. More specifically, appellant contends that the line-up was impermissibly suggestive because he was the only person in the line-up wearing muddy clothes, and only minutes before this line-up, the complainant (Gregory) viewed his vehicle as it was recovered from a muddy field. The morning after the robbery, the police saw appellant and Parker in Gregory's stolen vehicle. Parker sped away and a chase ensued. The chase ended when Parker drove into a muddy field. Appellant was apprehended and in the course of his arrest, he was placed on the muddy ground. As a result, there was apparently a light coating of mud on this clothing. After appellant and Parker were arrested and taken to jail, the police allowed Gregory to view his vehicle. Immediately thereafter, the police transported Gregory to the police station to view a live line-up, in which appellant and Parker were both participants. Appellant was apparently wearing the same clothing that he was wearing at the time of his arrest. There was a slight, but unnoticeable coating of mud on appellant's shirt and pants. Gregory, without hesitation, identified appellant and Parker as his assailants. Gregory testified that there was nothing suggestive about appellant or the line-up that compelled him to identify appellant. His identification of appellant was based on his memory from the robbery. The State argues that appellant waived the complaint about the muddy clothing because his objection at trial was not specific enough to encompass the complaint he voices on appeal. We disagree with the State's waiver argument, but conclude that appellant waived this complaint for failure to obtain an adverse ruling from the trial court regarding this objection. To preserve error for appellate review: (1) a party must make a timely, specific objection; (2) the objection must be made at the earliest possible opportunity; (3) the complaining party must obtain an adverse ruling from the trial court; and (4) the issue on appeal must correspond to the objection made at trial. See TEX. R. APP. P. 33.1(a); Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998). An objection is sufficient to preserve error for appellate review if it communicates to the trial court what the objecting party wants and why the objecting party thinks himself entitled to relief, and does so in a manner clear enough for the court to understand the objection at a time when it is in the best position to do something about it. See Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992). But when it appears from the context that a party failed to fairly and effectively communicated to the trial court the objection, its basis, or the relief sought, the appellant's complaint has not been preserved. Id. Here, appellant did not file a written motion to suppress the evidence based on allegedly impermissible line-up procedures. Instead, appellant asserted an oral motion to suppress the in-court identification based on appellant's contention that the pretrial line-up procedures were impermissibly suggestive. At the end of the trial court's pretrial hearing on this motion to suppress, the following exchange occurred:The Court: Ya'll have any authority you want me to consider?
[defense counsel]: Your honor, there's no authority for you to consider in terms of — you're the Judge of the facts here. If you do not believe the line-up was prejudicial or suggestive then we get to the next step. You believe it was suggestive then it's whether or not the in-court identification that was made today was tainted by it and that's test of —
The Court: I didn't think it was suggestive. It didn't look that way to me.(emphasis added). The record must clearly reflect that the trial court, in fact, overruled the defendant's objection or error is waived. See Ramirez v. State, 815 S.W.2d 636, 643 (Tex.Crim.App. 1991). The record contains no ruling on the motion to suppress. The trial court's comment, italicized above, was not an adverse ruling. Because this was the only time appellant objected to the pretrial line-up procedures and because appellant failed to pursue his objection to an adverse ruling, we hold that he failed to preserve any error for our review. See Dixon, 2 S.W.3d at 265; Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); Rogers v. State, 653 S.W.2d 122, 127 (Tex.App.-Houston [1st Dist.] 1983, pet. ref'd) (holding that trial court's admonition to stay inside the record and proceed was not an adverse ruling and error was waived). In any event, even if the complaint had been preserved, we would find no merit in appellant's argument. Appellant challenged the line-up identification process in a pretrial hearing. During this hearing, appellant argued that the line-up was impermissibly suggestive. Appellant argues the trial court should have suppressed Gregory's in-court identification because it was tainted by the pretrial line-up in which he had mud on his clothing. He argues that the line-up was impermissibly suggestive because appellant was the only person who had mud on his clothing, and the complainant (Gregory) viewed the line-up shortly after he had viewed his stolen vehicle, which had mud on it and from which the suspects were arrested. Appellant contends that if it were not for the allegedly impermissibly suggestive line-up, Gregory would not have identified him. We disagree. An in-court identification is inadmissible if it has been tainted by an impermissibly suggestive pretrial identification procedure. Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App. 1999). We perform a two-step analysis to determine whether the trial court erroneously admitted in-court identification testimony, inquiring: (1) whether the pretrial procedure was impermissibly suggestive; and (2) if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidentification at trial. Delk v. State, 855 S.W.2d 700, 706 (Tex.Crim.App. 1993). It is appellant's burden to prove the in-court identification is unreliable by proving both of these elements by clear and convincing evidence. See id. If the indicia of reliability outweigh the influence of an impermissibly suggestive pretrial identification, the identification testimony is admissible. Id. We first must determine whether the pretrial line-up procedure used was impermissibly suggestive. The manner or the content of a pretrial identification procedure may render it impermissibly suggestive. See Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995). Gregory immediately identified appellant and Parker as his assailants. Appellant states that he would not have been identified had he not had mud on this clothing. However, the police officer who conducted the line-up procedures, Officer Jim Schultea, testified that there was not much mud on appellant's clothing. The trial judge, who viewed the videotape of the line-up, agreed that there was nothing suggestive about it. Moreover, Gregory testified that there was nothing unique about appellant's appearance at the line-up that suggested appellant should be chosen. Gregory testified that he identified appellant because he remembered him distinctly from the night of the robbery. In addition, after viewing the videotape of the line-up, we agree that there was not any noticeable mud on appellant's clothing nor was there anything else about the pretrial line-up that made it impermissibly suggestive. See Bethune v. State, 821 S.W.2d 222, 228 (Tex.App.-Houston [14th Dist.] 1991), aff'd, 828 S.W.2d 14 (Tex.Crim.App. 1992) (holding that photospread was not impermissibly suggestive despite defendant wearing distinctive clothing); Epps v. State, 811 S.W.2d 237, 244 (Tex.App.-Dallas 1991, no pet.) (holding that pretrial photographic line-up was not so unnecessarily suggestive and conducive to irreparable mistaken identification that it denied defendant due process due to fact that defendant was only subject wearing jacket or jacket and red shirt); Bickens v. State, 708 S.W.2d 541, 545 (Tex.App.-Dallas 1986, no pet.) (concluding that photographic line-up was not impermissibly suggestive despite defendant being the only individual wearing a suit, which the victim described his assailant as wearing). We conclude that the pretrial identification procedures were not impermissibly suggestive and thus we need not address the second prong to determine whether the pretrial procedures gave rise to a substantial likelihood of irreparable misidentification. See Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995); see also Santos v. State, 116 S.W.3d 447, 453 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (holding that while pretrial procedures were suggestive, the trial court did not abuse its discretion in allowing witness to make in-court identification because it did not give rise to a substantial likelihood of irreparable misidentification). Accordingly, we overrule appellant's fourth issue.