Opinion
No. 05-04-00239-CR
Opinion Filed June 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 366th Judicial District Court Collin County, Texas, Trial Court Cause No. 366-80017-03. Affirmed.
Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
OPINION
Justin Everett Marzette appeals the trial court's judgment convicting him of aggravated robbery. The jury found appellant guilty and, after hearing evidence on punishment, the trial court assessed his punishment at 20 years of confinement. Appellant brings three issues on appeal: (1) the State committed reversible error during closing argument by pleading for the jury's sympathy; (2) the evidence is legally and factually insufficient to support his conviction; and (3) the trial court erred when it denied his motion for a mistrial after a witness testified to an extraneous offense. We decide appellant's issues against him. The trial court's judgment is affirmed. Tex.R.App.P. 43.2(a).
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant, Isaac Cook, and Adrian Calhoun were driving around and "[j]ust hanging out," when they decided to go to Cook's friend's apartment. Calhoun parked the car and waited, while appellant and Cook went to get Cook's friend. Eloy Terrazas and his teenage son were attempting to enter their apartment when Terrazas heard someone tell him to stop. He turned around and saw two men, appellant and Cook. Appellant was wearing black pants and a jacket with long red sleeves, and Cook was wearing blue denim jeans and a plaid shirt. The men told Terrazas to turn back around and he complied. Appellant pointed a handgun at Terrazas, while Cook took his wallet and $120 out of his pockets. Terrazas watched appellant and Cook run away through a flowerbed. He called 9-1-1. Calhoun saw appellant and Cook running back toward the street. Calhoun drove to the 7- Eleven and Cook waved at him, indicating that he should park. Cook got into the back seat of the car. He was acting jittery and strange, so Calhoun asked him what was wrong. Cook told him to go get appellant, so Calhoun drove back around the apartment complex and picked up appellant. Appellant got in the car and took off his gray sweatshirt, wearing the short-sleeved red shirt he had on underneath. Meanwhile, Sergeant Andrews was filling his patrol car with gas at a Texaco station near Terrazas's apartment. He noticed appellant, who was wearing a gray sweatshirt, walk past the front doors of a 7-Eleven that was across the street. He also saw Cook following appellant. Appellant stopped and made eye contact with Sergeant Andrews, then he turned around and hurried back in the direction he came from. At the same time, police dispatch announced an armed robbery in the area and gave a general description of the two male suspects. Sergeant Andrews drove behind the businesses near the 7-Eleven searching for appellant and Cook. Sergeant Andrews turned into a nearby apartment complex and passed a red Ford Probe with an expired inspection sticker and no license plate light. Sergeant Andrews pulled the car over, shined his spotlight on the car, and saw two more heads come up inside the car. When the police drove up behind them and turned on their lights, Cook told Calhoun not to stop. But appellant told him to pull over or it would look like they were guilty. Calhoun stopped the car. Sergeant Andrews recognized the passengers as the men he had seen in front of the 7-Eleven. The police identified the driver of the car as Calhoun, the front seat passenger as appellant, and the back seat passenger as Cook. The police removed the men from the car, searched it and found Terrazas's wallet, a blue jacket with long red sleeves, and one or two sweatshirts. The police also found a handgun hidden beneath the front passenger seat. As the police relayed this information over the radio, within earshot of the men, Cook got up and took off running. After Cook was apprehended, the police saw mud on his shoes and found $120 cash in his possession. The police brought Terrazas and his son to the place where the appellant, Cook, and Calhoun were being held. Terrazas and his son identified Cook and Terrazas stated appellant looked like the other robber. The police arrested the men. Appellant gave the police a written statement, admitting that he handled the handgun during the robbery. Appellant was indicted for aggravated robbery. After the trial, the jury found him guilty of the charged offense. After hearing evidence on punishment, the trial court sentenced appellant to 20 years of confinement.II. PLEA FOR JURY SYMPATHY DURING CLOSING ARGUMENT
In his first issue on appeal, appellant argues the State committed reversible error during closing argument by pleading for the jury's sympathy. The State responds that appellant failed to properly preserve this complaint for appellate review. In the alternative, the State responds that its comments during closing argument were not reversible error and, even if they were, appellant was not harmed.A. Preservation of Issue for Appeal
Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an error for appellate review. Tex.R.App.P. 33.1. Pursuant to Rule 33.1, appellate review is waived unless the party makes a timely specific objection and obtains an adverse ruling from the trial court. See Tex.R.App.P. 331.(a)(2). A defendant's failure to object to a jury argument or to pursue his objection to an adverse ruling forfeits his right to complain about the argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); see also Dooley v. State, 65 S.W.3d 840, 842 (Tex.App.-Dallas 2002, pet. ref'd).B. Application of the Law to the Facts
During closing argument, appellant objected when the State asked the jury to "imagine what that must have felt like for [Terrazas], walking up to his own apartment . . ." and the trial court sustained his objection. Appellant also objected when, immediately afterward, the State argued "[t]he helplessness of being in front of your own door, having a gun pulled on you, with a fourteen year old child — or with his fourteen year old child." Again, the trial court sustained appellant's objection. Appellant did not seek any further relief from the trial court and failed to obtain an adverse ruling. We conclude no error is presented because appellant failed to preserve the issue for appellate review. See Tex.R.App.P. 33.1. We decide appellant's first issue on appeal against him.III. LEGAL FACTUAL SUFFICIENCY
In his second issue on appeal, appellant argues the evidence is legally and factually insufficient to support his conviction for aggravated robbery. The State responds that a rational jury could have found all of the elements of aggravated robbery beyond a reasonable doubt and the contrary evidence is not so strong that the beyond-a-reasonable-doubt burden of proof could not have been met.A. Standards of Review 1. Legal Sufficiency of the Evidence
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42, 109 S.Ct. 285, 291, 102 L.Ed.2d 265 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).2. Factual Sufficiency of the Evidence
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering 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, 485 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 481; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.B. Applicable Law
A person commits robbery if he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death while committing theft. Tex. Pen. Code Ann. § 29.02 (Vernon 2003 Supp. 2004-05). A person commits theft, if he unlawfully appropriates property with the intent to deprive the owner of that property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004-05). A robbery is aggravated when the person uses or exhibits a deadly weapon. See Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 2003 Supp. 2004-05).C. Application of the Law to the Facts
Appellant contends that there are serious concerns relating to the evidence identifying him as one of the perpetrators, specifically, the difference between the description of what the perpetrator was wearing and what he was wearing when he was arrested. Appellant argues that Terrazas stated he was robbed by a man wearing a long-sleeved jacket with red sleeves, Sergeant Andrews initially saw appellant wearing a gray sweatshirt, and he was wearing a red short-sleeved T-shirt at the time of the traffic stop. The record shows that the various types of clothing witnesses reported seeing appellant wearing around the time of the robbery were found in the car. Sergeant Andrews first saw appellant wearing a gray sweatshirt, but, after the traffic stop, noticed appellant had removed his gray sweatshirt and was wearing a short-sleeved red T-shirt. Also, Calhoun testified at trial that when appellant got back into the car, he took his gray sweatshirt off and wore the red T-shirt he had on underneath. Further, both a sweatshirt, like the one observed by Sergeant Andrews, and a blue jacket with long red sleeves, matching the description given by Terrazas, were found in the car. The record also shows appellant was seen with Cook at a 7-Eleven store near Terrazas's apartment immediately after the robbery was reported and, after making eye-contact with Sergeant Andrews, appellant hurried away. After stopping the car, Sergeant Andrews recognized appellant and Cook as the men he had seen at the 7-Eleven. Terrazas reported that his wallet and $120 were taken from him at gun point. Terrazas's wallet and a handgun were found in the car, and $120 was found on Cook's person. Terrazas identified Cook and stated that appellant "looked like" the other man who robbed him. Viewing the evidence in the light most favorable to the verdict, there was evidence identifying appellant as the robber. Terrazas's and other witnesses' identification of appellant as the robber was not undermined by the variance in the witnesses' testimony relating to appellant's clothing. Reconciliation of conflicts and contradictions in the evidence is within the province of the jury, and such conflicts will not require reversal if there is enough credible evidence to support the conviction. See Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982). There was sufficient evidence for a rational jury to find the essential elements of the crime beyond a reasonable doubt. Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that appellant was guilty of aggravated robbery. Appellant's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The evidence was neither so obviously weak that appellant's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. After reviewing all of the evidence under the appropriate standards of review, we conclude that the evidence is legally and factually sufficient to support appellant's conviction for aggravated robbery. We decide appellant's second issue on appeal against him.IV. MISTRIAL
In his third issue on appeal, appellant argues the trial court erred when it denied his motion for a mistrial. He contends a mistrial was warranted because the State's witness interjected evidence of an extraneous offense during his testimony. The State responds that the trial court's instruction to disregard was sufficient to cure any error.A. Standard of Review
An appellate court reviews a trial court's decision to deny a mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999) (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993)). The decision to deny a motion for mistrial is within the discretion of the trial court. Edwards v. State, 106 S.W.3d 833, 838 (Tex.App.-Dallas 2003, pet. ref'd) (citing Rousseau v. State, 855 S.W.2d 666, 684 (Tex.Crim.App. 1993)).B. Applicable Law
A mistrial is an appropriate remedy for a narrow class of highly prejudicial and incurable errors. See Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). A mistrial is only required when the impropriety is of a character that suggests that it would be impossible to withdraw the impression produced on the minds of the jury. See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). An instruction to disregard the improper statement will, in most instances, cure any error. See Martinez v. State, 17 S.W.3d 677, 691 (Tex.Crim.App. 2000) (en banc); Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996). Ordinarily, a prompt instruction to disregard will cure error associated with an improper question or answer, even one regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000); Kipp v. State, 876 S.W.2d 330, 339 (Tex.Crim.App. 1994). A reference to an extraneous offense, which is vague, did not directly implicate the defendant, and did not include any facts giving credence to the extraneous offense, is not so calculated to inflame the minds of the jury or of a character that suggests that it would be impossible to withdraw the impression produced on the minds of the jury. See Kipp, 876 S.W.2d at 339.C. Application of the Law to the Facts
Appellant complains about the following testimony of one of the police officers:STATE: Did you have an opportunity to help out on a case involving [appellant].?
OFFICER: Yes, I did.
STATE: What did you do on that case?
OFFICER: I had come on duty that — it was a Saturday morning — and was told that — that he and a couple of other individuals had been arrested, and I was told that if I wanted to I could go down to the jail and interview them. We had had series of armed robberies against Hispanics in our —
DEFENSE: Your Honor, at this point I'm going to object to the relevance to this case.
STATE: I'll withdraw that question.
DEFENSE: Your Honor, we ask that the jury be instructed to disregard.
COURT: Jury will disregard.
DEFENSE: Ask for a mistrial.
COURT: Overruled.The record shows that after appellant's objection and the State's withdrawal of the question, the trial court promptly instructed the jury to disregard the police officer's reference to extraneous offenses. See Martinez, 17 S.W.3d at 691; Shannon, 942 S.W.2d at 597. Also, the police officer's reference to extraneous offenses was vague, did not directly implicate appellant, and did not include any facts giving credence to appellant's involvement in the extraneous offenses. See Kipp, 876 S.W.2d at 339. We conclude that the trial court did not abuse its discretion by denying appellant's motion for a mistrial because the statement appellant complains about was not of a character that suggested it would have been impossible to withdraw the impression it produced on the minds of the jury. See Hinojosa, 4 S.W.3d at 253. We decide appellant's third issue on appeal against him.