No. 05-09-01478-CR
Opinion issued February 11, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F08-52330-L.
Before Justices MORRIS, FRANCIS, and MURPHY.
Opinion By Justice MORRIS.
A jury convicted Kelvin Maurice Smith of robbery. He now complains on appeal that the trial court erred in overruling his request for a lesser-included-offense instruction, in denying his request that the State be compelled to elect which offense it was proceeding under, in denying his motion for mistrial, and in overruling his hearsay objections. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
Denese Deadmon was picking up her seven-year-old daughter from her after-school care when appellant approached her car. Deadmon was outside the car with Edgar DeBoise, the school custodian, who was helping her put oil in her car. Deadmon's daughter and her five-year-old son were outside the car when appellant, mumbling, ran up to the car. He told Deadmon to get out of the way; she was blocking the door to the car so he could not get inside it. When Deadmon told him she would not move, appellant opened the car door in such a way that it knocked her to the ground. Meanwhile, DeBoise rushed the children into the school and called 911. Appellant got into the car and tried to put it in reverse. The hood was still up on the car. Deadmon pleaded with appellant not to take her car or at least leave her purse. Appellant became enraged and started running towards her. DeBoise let Deadmon inside the school then locked appellant out. Appellant beat on the door and yelled at Deadmon, threatening to kill her if she did not come out of the school. After a time, he returned to Deadmon's car. Deadmon exited the school and pleaded with appellant to leave her car alone. As appellant was trying to leave the school parking lot in the car (with its hood still up), a police officer approached the car, pulled out his gun, and ordered appellant to stop. Appellant put the car into gear and drove off. Approximately thirty minutes later, police drove Deadmon to identify her wrecked car and the person who committed the crime. She identified appellant at the scene. DeBoise's recollection of events was similar to Deadmon's, but he recalled thinking appellant was on drugs because he was foaming at the nose and mouth as he approached. The trial court sustained appellant's objection to DeBoise's speculation about whether appellant was on drugs and instructed the jury to disregard his testimony on the matter. Later on cross-examination, DeBoise again testified that when he first saw appellant, appellant was loudly talking to himself and foaming at the mouth. DeBoise also did not see Deadmon fall to the ground. While Deadmon was interacting with appellant, DeBoise was trying to rush the children into the locked school and call the police. The officer who attempted to stop appellant at the school parking lot testified that — with the hood still up on the car — appellant led the officer on a high speed chase, sideswiping a car at a stop sign, hitting a parked car, and then crashing into a tree. After he hit the tree, he got out of the car and fled on foot. The officer chased him down and handcuffed him. Appellant was not foaming at the mouth, but he appeared to be under the influence of PCP. Deadmon's car was no longer drivable after the offense, so it was towed to the pound. Discussion
In his first issue, appellant complains that the trial court erred in denying his request for a jury instruction on the lesser-included offense of unauthorized use of a motor vehicle. He contends he should have received the instruction because the jury had the power to disbelieve Deadmon's testimony that he had assaulted or threatened her. A defendant is entitled to an instruction for a lesser-included offense where the proof for the offense charged includes the proof necessary to establish the lesser-included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge, but the evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. See id. It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). No evidence in appellant's case contradicts Deadmon's testimony that appellant shoved her down with the car door. DeBoise testified that he did not see Deadmon fall, but his testimony also makes clear that he was unable to observe her entire interaction with appellant because he was trying to get the children inside the school and call the police. The trial court did not err in refusing appellant's request for the lesser-included-offense instruction. We resolve appellant's first issue against him. In his next issue, appellant complains the trial court erred in denying his request that the State be compelled to elect between the indictment allegations that he committed the robbery by striking Deadmon with a motor vehicle and by knowingly threatening and placing Deadmon in fear of imminent bodily injury. The State is allowed to anticipate variances in proof at trial by pleading multiple alternative manner and means in the indictment. See Alva v. State, 797 S.W.2d 957, 958 (Tex. App.-Houston [14th Dist.], pet. refused ( 799 S.W.2d 765 (Tex. Crim. App. 1990) (per curiam)). Moreover, the State need not elect between the various theories alleged in charging a single criminal act or event, and the jury may consider all theories and return a general verdict of guilty. See Franklin v. State, 606 S.W.2d 818, 821 (Tex. Crim. App. 1978). The indictment in this case alleged only one criminal event or offense. Although appellant may have assaulted and threatened Deadmon in the process of robbing her, only one robbery occurred. Therefore, no election was required. We resolve appellant's second issue against him. In his third issue, appellant complains the trial court erred in denying his motion for mistrial following DeBoise's testimony that when appellant approached him he saw foam coming out of appellant's nose and mouth and he "knew if he was on any type of drugs . . . he was going to be extremely strong." As noted previously, the trial court sustained appellant's objection. The trial court also instructed the jury to "disregard the last answer, last question." The trial court, however, overruled appellant's motion for mistrial. Mistrial is a device used to halt trial proceedings when an error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547 567 (Tex. Crim. App. 1999). The asking of an improper question rarely will call for a mistrial because in most cases any harm can be cured by an instruction to disregard. Id. A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Id. We review a trial court's denial of a mistrial under an abuse of discretion standard. See id. Here, the trial court promptly and completely instructed the jurors to disregard the witness's answer. We presume the jury followed the trial court's instruction. See Wesbrook v. State, 29 S.W.3d 103, 116, (Tex. Crim. App. 2000). The comment was not so flagrant that its effect could not be offset by the court's instruction. Moreover, appellant's actions alone likely gave the jurors cause to suspect that he was acting under the influence of drugs or alcohol. Accordingly, we conclude any error contained in the testimony was cured by the trial court's instruction to disregard. We resolve appellant's third issue against him. In his final two issues, appellant complains the trial court erred in permitting DeBoise and a police officer to offer hearsay testimony about what Deadmon said during and about the robbery. DeBoise testified that he observed Deadmon asking appellant not to take her car. The officer testified about what Deadmon had told him about how the offense happened, including that she had been hit with the car door and knocked down. Although the trial court initially permitted the officer's testimony as an excited utterance exception to the hearsay rule, after the defense took the witness on voir dire examination regarding the excited utterance ruling, the trial court then sustained appellant's hearsay objection to the testimony. Appellant did not then request an instruction to disregard the evidence or a mistrial. Any error in admitting DeBoise's testimony was harmless. The record made clear that Deadmon did not want appellant to take her car and made him aware of her feelings. Accordingly, any additional testimony about this fact did not affect appellant's substantial rights. See Tex. R. App. P. 44.2(b). We resolve appellant's fourth issue against him. The record is clear that the trial court ultimately sustained appellant's objection to the police officer's testimony. But appellant did not ask that the jury be instructed to disregard the testimony nor did he move for a mistrial. To preserve a matter for review, an appellant must obtain an adverse ruling at trial. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985); see also Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992). Here, appellant received the only relief he requested. His complaint about the officer's testimony has not been preserved. We therefore resolve appellant's fifth issue against him as well. We affirm the trial court's judgment.