Opinion
No. 05-17-00064-CR
03-20-2018
RICKY ROBLEDO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F13-53839-T
MEMORANDUM OPINION
Before Justices Francis, Evans, and Boatright
Opinion by Justice Francis
Ricky Robledo appeals his conviction for aggravated robbery with a handgun, a deadly weapon. Appellant brings ten issues generally contending the trial court abused its discretion in admitting evidence of offenses he committed against a non-complaining witness. The State brings one cross-issue requesting modification of the judgment to reflect the correct amount of court costs. We overrule appellant's issues, sustain the State's cross-issue, and reform the judgment. We affirm the trial court's judgment as modified.
Alejandro Valdes is the owner and operator of a store in Dallas that sells car stereos and alarms. Roberto Balcazar rented space from Valdes where he operated a car window tinting business. Appellant visited Valdes's store on November 9 and 10, 2012 and spoke to Valdes and Balcazar. On both days, appellant asked about pricing, installation and shop hours.
On November 12, appellant returned to the shop in the late morning and then again around 5:30 in the evening accompanied by another man. During the evening visit, appellant asked Balcazar to install window tinting on his car. Appellant then left for around half an hour. When he returned, he asked Valdes to show him a radio and some speakers and Valdes placed several on the counter. Appellant selected one of the speakers to buy.
While appellant was speaking with Valdes, Balcazar came in and told him the window tinting on his car was finished. Appellant asked Balcazar to pull the car around to the front and leave it running. Balcazar did and appellant's companion got into the passenger seat.
As Valdes was writing the receipt for the speaker, he felt one of the stereos on the counter move. Valdes tried to grab the stereo but couldn't and looked up to see appellant pointing a gun at him. Appellant took the stereo and turned toward the exit, where Balcazar was standing. Balcazar put his hands up in a defensive measure and appellant shot him. Appellant then ran to his car and drove away. Balcazar was taken to the hospital by ambulance.
A detective called to the scene lifted fingerprints from several areas in the shop including an empty stereo box and a glass display case. A forensic fingerprint expert testified fingerprints identified as appellant's were on both the box and the display case. Based on the fingerprint identification, Valdes and Balcazar were shown photographic lineups that included a photo of appellant. Both men identified appellant as the person who committed the offense. Appellant was arrested and indicted for the aggravated robbery of Valdes.
During trial, appellant objected to the State's introduction of any evidence about the shooting of Balcazar arguing it was an extraneous offense. The trial court held the shooting was part of the facts of the offense charged, was a continuing course of conduct and admissible as evidence of common scheme, plan of action, and motive. Appellant's counsel acknowledged the shooting occurred during the same transaction and was contextual evidence, but requested a contemporaneous limiting instruction for "proper handling of the evidence." The trial court denied the request.
Appellant additionally objected to the admission of evidence showing theft of services, the window tinting, from Balcazar arguing it was an extraneous offense, was irrelevant, and was more prejudicial than probative. The trial court gave an oral instruction to the jury as to that evidence stating,
. . . if there is testimony before you in this case regarding the defendant having committed theft of service or some theft related offense against [Balcazar], you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such an offense, if any was committed, and even then . . . you can only consider it for determining the motive, opportunity, intent, preparation, plan, knowledge, or identity of the defendant, or an absence of mistake, or lack of accident by the defendant and no other purposes.A substantially similar written instruction was also included in the court's charge.
After hearing the evidence, the jury found appellant guilty and sentenced him to twenty years in prison. This appeal followed.
Appellant lists ten issues in his brief challenging the guilty verdict. The argument section of appellant's brief combines all ten issues. In addition, although appellant begins the argument section, on pages 8 to 10, with general citations to legal authority on the standard of review, relevance, prejudice, and extraneous offense evidence, he makes no attempt, on pages 10 to 23, to apply any legal authority to the facts of this case. In the interests of justice, we will consider appellant's arguments. Appellant argues his issues jointly and we address them in the same manner.
Appellant argues the evidence relating to his shooting Balcazar was inadmissible as evidence of an extraneous offense. We review the trial court's admission of extraneous offense evidence under an abuse of discretion standard. See Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial court's ruling falls within the "zone of reasonable disagreement," there is no abuse of discretion and we will uphold the ruling. Id.
Generally, evidence of an extraneous offense is not admissible to prove conduct in conformity with a bad character. See Segundo v. State, 270 S.W.3d 79, 87-88 (Tex. Crim. App. 2008). It has long been the rule in this State, however, that the jury is entitled to know all the relevant facts and circumstances surrounding the charged offense. See Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986). Where another offense or transaction is part of the case on trial, or blended or closely interwoven with it, proof of all the facts is proper. Id. The jury has the right to hear what occurred immediately prior to and subsequent to the commission of the act so that it may realistically evaluate the evidence. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Circumstances of the offense that tend to prove the allegations in the indictment are not extraneous offenses. See Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). When evidence of an extraneous offense is used to prove a main fact in the case, an instruction limiting the jury's consideration of this evidence is generally not required. See Wesbrook, 29 S.W.3d at 115.
In this case, the State was required to prove appellant used or exhibited a handgun, a deadly weapon, during the course of his robbery of Valdes. As evidence of this element, the State presented the testimony of Valdes and Balcazar about the shooting, ambulance records showing Balcazar had a bullet lodged in his right thigh, a cartridge casing recovered from the scene, and a bullet that was expelled from Balcazar's body about one month after the incident. Not only does this evidence show appellant used or exhibited a deadly weapon in committing the offense, his use of the weapon while fleeing the scene additionally shows his intent to steal the stereo, the absence of mistake, and lack of accident. See TEX. R. EVID. 404(b)(2).
Appellant contends that, even if evidence of the shooting was relevant, it was unnecessary because the State only needed to present Valdes's testimony that he saw appellant point a gun at him during the robbery to establish the deadly weapon element of the offense. Appellant contends evidence of the shooting is substantially more prejudicial than probative because its only purpose was to inflame the jury with the facts of a more serious crime. See TEX. R. EVID. 403. When determining whether the prejudicial effect of extraneous offense evidence substantially outweighs its probative value, we consider: (1) how compellingly evidence of the extraneous offense serves to make a fact of consequence more or less probable; (2) the extraneous offense's potential to impress the jury in some irrational but indelible way; (3) the trial time the proponent will require to develop evidence of the extraneous misconduct; and (4) the proponent's need for the extraneous offense evidence. See Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002).
Evidence of the shooting in this case provided compelling evidence of appellant's use of a handgun during the robbery. Without this evidence, the State would have been forced to rely entirely on Valdes's testimony that he briefly saw appellant point a gun at him before grabbing the stereo and running for the door. The court refused to allow Balcazar to present his medical records or show his wound to the jury, but allowed the State to present the less inflammatory evidence of ambulance records, the cartridge casing, and the bullet. The ambulance records and cartridge casing corroborated Balcazar's testimony about the time and place he was shot. Indeed, the trial court informed counsel it would not allow the State to "hammer away" with evidence of the shooting but would permit the least prejudicial means of proving use of a deadly weapon.
Appellant does not contend the amount of time taken to develop the shooting evidence was prejudicial. He contends only that the evidence created "an impermissible tendency for the jury to make its decision on an emotional rather than a factual basis." Although the facts of a shooting may carry some additional emotional weight, the evidence presented here, under the trial court's instruction to counsel, was not unduly emphasized or graphic. Accordingly, we conclude the probative value of the evidence was not substantially outweighed by its prejudicial effect. The trial court's decision to admit the evidence was not an abuse of discretion. Id. at 899.
In addition to the evidence pertaining to Balcazar's injuries, the State presented evidence that the ambulance transporting Balcazar to the hospital broke down on the way. Appellant argues this testimony was irrelevant and presented solely to appeal to the jury's emotions. Even assuming error, we will not reverse unless a substantial right of appellant has been affected. TEX. R. APP. P. 44.2(b). A substantial right is not affected, and the error is harmless if, after reviewing the entire record, we determine the error did not influence, or had only slight influence, on the trial outcome. See Montez v. State, 975 S.W.2d 370, 373 (Tex. App.—Dallas 1998, no pet.). Given the significant evidence of guilt in this case, and the absence of significance placed on this evidence at trial, we do not view this evidence as being of such a nature as to have lead the jury to make its decision of guilt on an improper basis. See id.
Finally, appellant contends the trial court abused its discretion in admitting evidence he committed the offense of theft of services from Balcazar by not paying for the window tinting he received. Like the shooting, evidence of appellant's theft of services was intertwined with the evidence of the aggravated robbery. Appellant used the pretext of obtaining window tinting services from Balcazar to gain access to the shop for an extended period of time and have his car brought to the front of the store and left with the engine running. The complete history of the aggravated robbery necessarily required evidence of the window tinting ruse as it showed the manner and means by which the offense was committed. See Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996) (same transaction contextual evidence admissible when offense would make little or no sense without it). Furthermore, the evidence was relevant to show preparation and planning by appellant. TEX. R. EVID. 404(b)(2).
To the extent the jury might have been confused by the multiple offenses, the trial court gave an extensive limiting instruction informing the jury of the proper purposes for consideration of the evidence. Appellant makes no argument showing how he was harmed by the admission of this evidence. We conclude, therefore, the trial court did not abuse its discretion in admitting it. We resolve appellant's ten issues against him.
In a single cross-issue, the State contends the judgement should be reformed to reflect the proper amount of court costs. The judgment imposes costs of $224. The certified bill of costs, however, shows actual court costs of $249. We have the power to modify incorrect judgments when the necessary information is available to do so. See TEX. R. APP. P.43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Abron v. State, 997 S.W.2d 281, 282 (Tex. App.—Dallas, no pet.). We modify the trial court's judgment to reflect the correct amount of costs.
We affirm the trial court's judgment as modified.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 170064F.U05
JUDGMENT
On Appeal from the 283rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1353839-T.
Opinion delivered by Justice Francis. Justices Evans and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The amount listed under "Court Costs" is MODIFIED to read "$249." As REFORMED, the judgment is AFFIRMED. Judgment entered March 20, 2018.