Opinion
Nos. 05-10-00121- CR 05-10-00122-CR
Opinion issued February 18, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F08-41443-XR, F08-60889-KR.
OPINION
Appellant Ladarean Dewayne Stephens appeals two convictions for aggravated robbery. Appellant waived a jury and pleaded guilty to each offense before the trial court without the benefit of a plea bargain agreement. On appeal, appellant raises three points of error: (1) the extraneous offenses or bad acts upon which the trial court based its sentencing were not proven beyond a reasonable doubt, (2) he was denied due process under both state and federal law because the trial court imposed a predetermined sentence, and (3) the trial court refused to consider the full range of punishment. For reasons that follow, we overrule appellant's points of error and affirm each conviction. The two robberies to which appellant pleaded guilty were committed on September 10 and 16, 2008. At the plea hearing, the State offered, and the trial court admitted, a judicial confession in each case. The court found the evidence was sufficient to support findings of guilt and, further, that appellant used or exhibited a deadly weapon during the commission of each offense. However, the trial court made no findings of guilt and deferred the hearing for disposition at a later date. During a subsequent hearing, the trial court heard evidence from each side, found appellant guilty of aggravated robbery, and assessed punishment at eight years' imprisonment and a $2,000 fine in each case. The court ordered the sentences to run concurrently. Appellant filed a motion for new trial in each case, and requested a hearing on the motions. The trial court denied both appellant's request for a hearing and the motions for new trial.
Each motion for new trial alleged only that there was "good and sufficient reason that the verdict [was] contrary to the law and the evidence." None of the complaints made on appeal was presented to the trial court in the motions for new trial.
Evidence Presented
The evidence presented shows appellant was eighteen years old at the time of the offenses. His longtime girlfriend was expecting his child. Appellant had no juvenile record. He had worked "off and on" in the past, but he was not working at the time of the offenses. He attended school at Texas CAN Academy. Appellant testified he became involved with the "wrong crowd" and began taking drugs. He was under a lot of stress after his girlfriend became pregnant. When appellant saw Antonio Anderson with a lot of money, he talked with Anderson about how he got the money and learned it was from committing crimes. Appellant decided to join Anderson in his criminal activity. According to appellant, Anderson was the leader and told appellant what to do. The September 10, 2008 robbery occurred at a Walgreens. Appellant was on drugs at the time of the offense. Appellant said he would not have been able to commit the robbery without the drugs. Anderson gave appellant a gun. According to appellant, the gun was not loaded and he did not intend to harm anyone. Appellant took $700-$800 from the Walgreens cash register. During the robbery, another accomplice ordered Donald Flowers, the assistant manager, to take him to the safe. Flowers complied, opened the safe, and was ordered to put the money in a backpack the accomplice provided. Flowers did as he was told. After threatening Flower's life, the accomplice "fled the scene." Flowers called the police. The ensuing investigation, including viewing a surveillance video, showed three people robbed Walgreens: one robber was at the cash register, another robber was at the pharmacy, and a third robber accompanied Flowers to the safe. Flowers could not describe the man he took to the safe, but he remembered the man had a gold tooth. Flowers never saw appellant in person; he only saw appellant on the surveillance video. Flowers identified appellant as the man who was wearing dark clothing at the cash register on the surveillance video. Mariela Rangel testified that on September 10, 2008, she was working at the front cash register when she saw three "African-American boys" come into Walgreens at about 9:45 p.m. The first individual wore a red bandana over his face, and he pointed a gun at Rangel and ordered her to open the cash drawer and give him the money. Rangel did so. Then, this individual told Rangel to give him the money underneath the register. Rangel complied. After getting the money, the individual ran out the door. Rangel activated an emergency code to call the police. The September 16, 2008 robbery occurred after appellant had taken several Xanax pills and an Ecstacy pill. Again, a Walgreens store was the target. Although appellant had a gun when he went into the store, he testified he gave the gun to Anderson. Kerisha Hendrix, a Walgreens employee, testified that around 1 p. m. two "African-American males wearing bandanas or hoodies" came into the store. One man went to the cash register, pointed a gun at her, handed her a bag, and told her to give him the money, including the money underneath the cash register. When Hendrix complied, the man ran out the door. A second man took the gun from the first man, then guided the manager to the office and demanded money. A scuffle ensued over the gun, during which the second man dropped his cellular telephone. The cashier and some customers ran and locked themselves in the bathroom. The dropped cellular telephone led the police to Anderson, who implicated appellant in the robberies. Through information provided by Anderson, the police secured a search warrant for appellant's residence. The search of appellant's residence resulted in the seizure of the shirt appellant wore during the robbery and a round of ammunition. Following his arrest, appellant gave two voluntary statements to Detective Brad Meyer of the Mesquite Police Department. In one statement, according to Meyer, appellant admitted his role in the September 16 robbery and "several other offenses in Dallas." Meyer testified appellant was the person who took money from the cash register during the September 16th robbery. Appellant was the person wearing a red-or orange-colored jacket who pulled out a handgun, pointed it at the cashier, and demanded money. During the trial, Meyer was asked, "Did they admit to any other Walgreens robberies?" Meyer replied, "Yes, as soon as I began investigating this offense I learned that there had been a string of violent aggravated robberies in Dallas, I believe three or four other stores had been robbed, and [appellant] admitted his role in several of those offenses as well." One of those robberies involved Flowers and Rangel. When asked on cross-examination about his testimony that appellant admitted to multiple other offenses, Meyer stated, "He admitted to the one in Mesquite, and I don't recall exactly which ones he admitted to in Dallas, but I know that he was aware of the other offenses and admitted to his role in at least one of those." When asked if that was "one other besides this incident" Meyer replied, "Yes, sir." When asked if it was one or more than one other robbery, Meyer replied,"I'd have to review the statement. I believe he said that he went in on one and he may have been the driver on one. There were four co-defendants in this case, I may be getting their statements confused. I'd have to review before I could tell you for sure, I apologize."Meyer was never asked to review the statements. He did testify that appellant was cooperative and not combative with him. Appellant testified in his own defense. He admitted to committing the robberies on September 10 and 16, 2008, and said his role was to take money from the cash registers. Appellant admitted he put a gun in the faces of two women during the robberies, but he said the gun was not loaded. He apologized to the victims. Appellant testified about volunteer work he had done at church and at the Scottish Rite Hospital for Children before he got into trouble. He testified he was training for a career in air conditioning, heating, and refrigeration, and he planned to stay out of trouble and take care of his child. Appellant said he began smoking weed at age fourteen and "popping pills" at age fifteen. He was "sniffing powder cocaine" when he committed the robberies. Appellant said he told Anderson after the second robbery that it was his last time. Appellant denied he was involved in any other robberies. Appellant's father, Kenneth Stephens, testified that he had not been involved in his son's life for about ten years. After appellant got out of jail, Kenneth and appellant's mother got back together. Appellant had been helping him do yard work. Although Kenneth hoped the judge would put appellant on probation, he testified that if someone put a gun in his face he would want the person "locked up." However, Kenneth thought his son's age, being with the wrong crowd, and using drugs at the time of the offenses were reasons not to lock up appellant. Appellant's girlfriend testified she was the mother of his child, and said appellant had helped a lot with their daughter. She said appellant had matured since he got out of jail, and she hoped he would be able to continue to play a role in his daughter's life. Appellant's mother also testified that since appellant got out of jail, his demeanor had changed. He was more mature and responsible. After hearing the evidence and arguments of counsel, the trial judge stated:
Mr. Stephens, after hearing the testimony, it's a very difficult decision, but given the gravity of the offenses, and the fact that you had a gun in both cases and threatened to kill another human being over some money and they were just doing their job working, and given the fact that you were doing this with other individuals, and it seemed to be a continuing scheme, the Court is going to find you guilty beyond a reasonable doubt based on your plea and the evidence and sentence you to eight years confinement in state prison. Also order you to pay a fine of $2,000 in each case."[Emphasis supplied].
Extraneous Offenses
In his first point of error, appellant argues the trial court abused its discretion in considering extraneous offenses of a "continuing scheme" as a factor in sentencing when it had not been proven beyond a reasonable doubt. The State responds that appellant waived any error by failing to object to the admissibility of evidence of extraneous offenses, and even if error is not waived, the trial court did not err because this evidence was proven beyond a reasonable doubt. We first address the issue of waiver. Appellant recognized in his brief, "The State may argue that Appellant did not preserve his complaint." However, appellant contends that whether an extraneous offense or bad act was established beyond a reasonable doubt is a question of fact for the trier of fact, not a preliminary question of admissibility for the trial court. Thus, appellant argues, his failure to object and obtain a ruling to the admission of such evidence does not preclude the review of this issue. The State contends the cases appellant cites are inapplicable because they do not address the issue of waiver of error and, moreover, are jury trials. This case is a trial before the court. Thus, argues the State, appellant's failure to object should waive any error because here the trial court is sitting as the trier of fact, not determining the admissibility of evidence. For purposes of this appeal, we assume but do not decide that error was not waived by appellant's failure to object. We review a trial court's decision to admit an extraneous offense during the punishment phase under an abuse of discretion standard. Arzaga v. State, 86 S.W.3d 767, 781 (Tex. App.-El Paso 2002, no pet.) (citing Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996) (plurality op.)). During the punishment phase, the State may offer evidence as to any matter the court deems relevant to sentencing, including evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible. Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007); Arzaga, 86 S.W.3d at 781 (citing Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2010)). Before admitting extraneous misconduct evidence at the punishment stage, the trial court must make a preliminary determination that the evidence would support a finding beyond a reasonable doubt that the defendant committed the acts in question. Craig v. State, 82 S.W.3d 451, 455 (Tex. App.-Austin 2002, pet. ref'd.) (citing Mitchell, 931 S.W.2d at 954); see also Harrell v. State, 884 S.W.2d 154, 160-61(Tex. Crim. App. 1994). Here, the challenged evidence regarding appellant's participation in extraneous offenses came into evidence, without objection, in a trial before the court. This evidence followed appellant's open pleas of guilty to two aggravated robberies during which a deadly weapon, a firearm, was used or displayed. This evidence, together with any reasonable deductions or logical inferences drawn therefrom, was sufficient to allow the trial court to find appellant committed at least one other crime in addition to the two aggravated robberies to which he pleaded guilty. We conclude the trial court did not reversibly err in concluding the evidence of extraneous offenses was sufficient to show a "continuing scheme." The unobjected-to testimony of Meyer was sufficient to show appellant committed not only the two aggravated robberies in these cases, but also at least one additional robbery. The trial court was free to disbelieve appellant's denial that he participated in additional offenses beyond those charged. Moreover, even if error can be said to have occurred, we conclude any error was harmless, and the trial court did not abuse its discretion in considering the extraneous offenses as a factor in sentencing. We overrule appellant's first point of error.Due Process and Punishment Range
In his second and third points of error, appellant contends his due process rights were violated because the trial court imposed a predetermined sentence, and the trial court failed to consider the full range of punishment. Appellant argues the trial court failed to consider probation because it based its sentencing determination solely on the aggravating factors essential to the elements of the offense, and failed to consider mitigating evidence. The only "evidence" to which appellant points are the comments of the trial judge at sentencing:[G]iven the gravity of the offenses, and the fact that you had a gun in both cases and threatened to kill another human being over some money and they were just doing their job working, and given the fact that you were doing this with other individuals, and it seemed to be a continuing scheme, the Court is going to find you guilty beyond a reasonable doubt based on your plea and the evidence, and sentence you to eight years confinement in state prison. Also order you to pay a fine of $2,000 in each case.These comments were contemporaneous with the proceeding and were not proof the trial court had predetermined the sentence. In fact, we note that preceding those remarks, the trial court stated: "Mr. Stephens, after hearing the testimony, it's a very difficult decision, but . . ." [Emphasis supplied]. Appellant conspicuously omitted that comment by the trial judge in his brief. That comment alone refutes appellant's argument that the trial judge predetermined his sentence. Otherwise, his decision would not have been difficult. We conclude that no due process violation has been shown. Moreover, there is simply no evidence the trial court did not consider the full range of punishment in assessing appellant's punishment. Further, appellant was sentenced within the punishment range for the offenses. Appellant was convicted of two aggravated robberies, which are first-degree felonies. Tex. Pen. Code. Ann. § 29.03(b) (West 2003). The punishment range for a first-degree felony is five to ninety-nine years or life confinement, plus an optional fine of up to $10,000. Tex. Penal Code Ann. § 12.32 (West Supp. 2010). Here, the trial court assessed punishment in each case at eight years' confinement, which is three years above the minimum prison sentence. The trial court ordered the two sentences to run concurrently. See Tex. Code Crim. Proc. Ann. Art. 42.08(a) (West Supp. 2010) (when a defendant has been convicted in two or more cases, a trial court may order the judgment and sentence imposed in the second conviction to run concurrently with previous judgment and sentence or begin to run after the previous judgment and sentence has ceased to operate). We overrule appellant's second and third points of error. We affirm the trial court's judgments.