Opinion
No. 05-05-01312-CR
Opinion issued March 15, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause No. F05-00507-TW.
Before Justices, WRIGHT, BRIDGES, and MAZZANT.
Opinion By Justice, MAZZANT
OPINION
Dana Abdolahi-Damaneh appeals his conviction for aggravated robbery. In three issues, he claims the evidence is factually insufficient and the trial court improperly excluded impeachment evidence and erroneously admitted a prior criminal conviction. We affirm the trial court's judgment.
Factual Sufficiency
In his first issue, appellant claims the evidence is factually insufficient to support the aggravated robbery conviction because the State failed to prove he committed a theft of the complainant's property. Standard of Review In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Id. at 417. We cannot conclude a conviction is "clearly wrong" or "manifestly unjust" simply because we would have voted to acquit the defendant. Id. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations but only "to a very limited degree." Marshall v. State, No. AP-75,048, slip op. at 7, 2006 WL 3733198, at *5 (Tex.Crim.App. Dec. 20, 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determinations). The jury is free to reject some or all of a witness's testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000) (en banc). When presented with an issue of witness credibility, we do not sit as jurors deciding which witnesses to believe; that is the jury's domain. Applicable Law As explained in the court's charge, a person commits the offense of robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 2003). "In the course of committing theft" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. Id. § 29.01(1). The offense is raised to aggravated status if, while committing a robbery, the actor uses or exhibits a deadly weapon. Id. § 29.03(a)(2). A firearm is a deadly weapon per se. See id. § 1.07(a)(17)(A). Theft is committed when one unlawfully appropriates property with intent to deprive the owner of the property. Id. § 31.03(a). Application of Law to Facts After being instructed that it could convict appellant of aggravated robbery either as the principal or as a party to the offense, the jury returned a general verdict of guilty. When a general verdict is returned and the evidence is sufficient to support a finding of guilt beyond a reasonable doubt under any of the theories submitted, the verdict will be upheld. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App. 1992); Edwards v. State, 106 S.W.3d 833, 839 (Tex.App.-Dallas 2003, pet. ref'd). Furthermore, we may examine the sufficiency of the evidence under both theories together because the evidence is sufficient if it supports either theory. See Rabbani, 847 S.W.2d at 558. In this case, there is factually sufficient evidence from which the jury could have concluded appellant was involved in the aggravated robbery as a principal or as a party. According to the record, Giridhar Mudili, also known as "Giri," spent the evening of August 4, 2004, drinking at a bar. After returning home, he invited a two-year acquaintance, Tonya Burgoon, who he knew as Shayne Wagner, to his apartment. They smoked crack cocaine for about fifteen minutes, after which Burgoon asked to borrow Giri's BMW so she could buy more crack. Giri refused. Burgoon then called appellant, her fiancé, and told him to come to Giri's apartment. Appellant arrived several minutes later wearing black BDU pants and a black jacket with a patch that read "Police." He was also carrying two guns in his trouser pockets. Appellant entered Giri's apartment claiming he was a police officer and that he was arresting Giri because he had crack cocaine in his apartment. He placed Giri in handcuffs that were secured behind his back, and then appellant and Burgoon led Giri down the stairs of the apartment and put him in the rear passenger-side seat of the BMW. After accomplishing this, Burgoon and appellant went back went back into the apartment for approximately five minutes. When they returned, Burgoon drove Giri's BMW to a nearby Exxon gas station while appellant followed in his own vehicle. At the gas station, Burgoon demanded Giri's identification number so she could use an automatic teller machine to access his bank account. Giri could not remember her exact words, but they were "really rude and aggressive." He gave her the PIN number. Burgoon went into the gas station and withdrew money from Giri's account while appellant waited with him outside. After Burgoon returned with the money, Giri's handcuffs were moved to the front of his body. After leaving the gas station, appellant and Burgoon took Giri to appellant's house at 231 Cove Drive. Giri sat on the couch and watched as appellant "took his guns out and started playing with them to kind of make a show to me that . . . they were real." Appellant also told him that if he did not give appellant any trouble, he would not have to use his guns. Meanwhile, Burgoon used Giri's credit card to order various items from the internet for her upcoming wedding to appellant. While shopping on-line, she smoked crack cocaine with Giri. Shortly before 7:00 a.m., she used Giri's checkbook to write a blank check for $7,500, which she demanded he sign. Giri offered to sign the check if Burgoon and appellant would take him home, but they refused. Eventually, he gave in to their demands and signed the check. Appellant then drove to the bank in Giri's BMW and cashed the check while Burgoon, armed with a gun, stayed at appellant's house with Giri. Using Giri's credit card, she continued her on-line shopping. Appellant returned about "two or three" hours later with $7,500 cash. He and Burgoon counted the money, apparently "very happy that they pulled off something." After counting the money, appellant pointed one of the guns at Giri's head and told him that if he caused "any trouble for me or my wife, I will kill you." Burgoon wanted to take a bath, so she and appellant led Giri upstairs at gunpoint and shoved him into a closet. Although the closet door remained open, appellant and Burgoon threatened to lock Giri inside and place explosives outside that would detonate if he tried to move. Through the open door, Giri could see appellant sitting by the bathtub talking to Burgoon. After taking a bath, Burgoon left the house to do more shopping while appellant remained behind with Giri. The men laid on an upstairs bed and talked. Giri recalled that the conversation was "very friendly and very cordial," but he was still handcuffed and appellant would point his guns at him "every time [he] made a little movement." When Burgoon returned from the store, Giri noticed she had purchased more than "$500 worth of groceries." Appellant and Burgoon eventually removed the handcuffs from Giri's wrists. Because they wanted to go out again, appellant and Burgoon put Giri back into the closet, securing it with a lock Burgoon purchased at the grocery store. After he was placed in the locked closet and the couple left the house, Giri attempted to kick the door open but he was unable to do so. He remained in the closet, growing increasingly hot and sweaty. When appellant and Burgoon returned approximately five hours later, they allowed Giri to shower. Afterward, they went downstairs and sat on the couch while Giri sat on a nearby couch. Appellant and Burgoon were still armed. Later that evening, after they fell asleep, Giri fled to a neighbor's house and called 911. Officers from the Coppell Police Department's Special Operations Response Team were called to appellant's residence. After negotiating with appellant for "five or six hours," police used oleoresin capsicum gas to draw him out of the house, and he surrendered without further incident. During their search of his residence, police found, among other items, a grocery store receipt for $557.89, padlock, pair of handcuffs, fugitive recovery agent badge in a black folding wallet, nylon sheriff's patch, police patch, ski mask, .45 caliber pistol, pair of BDU pants, and Giri's wallet and cell phone. Appellant testified that his intention was to make a "citizen's arrest" of Giri because he believed he had been a "bad influence" on Burgoon and was responsible for supporting her drug addiction. He said he was "thinking like a police officer" when he arrested Giri and that he dressed in black and carried firearms because he wanted "to show the legitimacy of [his] action." Appellant claimed he took Giri's BMW for "evidence" and planned to drive it to the Dallas Police Department. He also said he did not want any of Giri's money and that he only cashed the check as a favor for Burgoon because she did not have identification. The indictment charged appellant with aggravated robbery based on the theft of "currency money of the United States of America, a cellular telephone, credit cards, an ATM card and a wallet and contents therein." Appellant claims the evidence is factually insufficient to show he committed a theft of Giri's property. Among other evidence, he calls our attention to testimony that he was not present when Burgoon wrote the $7,500 check and demanded Giri to sign it, to Giri's testimony that he was unsure who took his wallet and cell phone, and to evidence Giri was smoking crack cocaine at the time Burgoon demanded he sign the check. Although it was Burgoon who procured the $7,500 check, appellant participated in the theft by taking the check and cashing it. Evidence Giri was smoking crack with Burgoon at the time she demanded he sign the check, while not favorable to the State's case, does not render the evidence factually insufficient to support appellant's conviction for aggravated robbery. Furthermore, although Giri could not identify the person who actually took his wallet and cell phone, the evidence shows the wallet, cell phone, and checkbook were in appellant's and Burgoon's possession during the entire time Giri was held hostage. Burgoon also used Giri's bank card to make a withdrawal of money from his bank account through an automatic teller machine, and she used his credit cards to make purchases by computer. Anshuman Tewari, a co-worker of Giri's, testified that he placed a call to Giri's cell phone after receiving an e-mail message from him indicating he was being held hostage and asking Tewari to call the police. A man answered Giri's cell. When Tewari asked if Giri was available, the man said no and hung up. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing all of the evidence, that the great weight and preponderance of evidence contradicts the jury's verdict. See Marshall, 2006 WL 3733198, at *5. We therefore conclude the evidence is factually sufficient to support appellant's conviction. We resolve appellant's first issue against him.Impeachment Evidence
In his second issue, appellant contends the trial court abused its discretion when it refused to allow him to cross-examine the complainant about specific instances of conduct. Appellant claims he was improperly prevented from presenting evidence of the complainant's motive, bias, or interest to testify in this case. The State argues appellant waived this issue for appellate review and, in the alternative, that the trial court did not abuse its discretion. After the State rested its case, defense counsel recalled Giri to the stand and tried to question him about alleged conversations with appellant's father which concerned the payment of money to Giri and an offer to drop the charges against appellant. When defense counsel asked Giri whether appellant's parents "have your cell phone number," the State objected. Outside the presence of the jury, defense counsel argued that his line of questioning was relevant for impeachment purposes because it concerned post-offense "actions that are not consistent with the" behavior "of a victim of a robbery." The State argued the testimony was irrelevant and would violate rule 608(b) of the Texas Rules of Evidence because it "would constitute a specific instance of conduct." Out of the jury's presence, Giri testified that after the offense had occurred, he spoke with appellant's father by telephone on perhaps "four or five" occasions. He said he only responded to calls from appellant's father and did not initiate contact. According to Giri, appellant's father called him at work on multiple occasions, requesting meetings and threatening to kill Giri if he testified against appellant. He eventually met with appellant's father several times at a bar in an effort to "make peace" and explain that he was required to testify and there was nothing he could do about the pending criminal case. When defense counsel asked Giri whether they ever discussed the possibility of not testifying in this case and leaving the country in exchange for a payment of money, he said such conversations never took place and that he "didn't take a penny from [appellant's father], [and he] never asked [appellant's father] for a penny." Appellant's father had offered to pay back the money that was stolen but Giri told him he "didn't want his money" and that he should instead "use it towards [appellant's] defense." Giri insisted he only wanted appellant's father to know he could not refuse to testify against appellant, and appellant's father "never understood that." After counsel finished the proffer of evidence, the State renewed its objection that the testimony was irrelevant and constituted improper impeachment under rule 608(b). The trial court sustained the State's objection. Defense counsel also sought to elicit similar testimony from appellant's father. When questioned outside the presence of the jury, he testified that, following appellant's arrest, Giri called him approximately two hundred times and they met at a bar on three occasions. He also said Giri asked him for money in order to "drop the case." The State objected to this testimony on the grounds it constituted impermissible impeachment under rule 608(b). Defense counsel again argued the line of questioning was relevant for impeachment purposes because it went to the issue of whether "the complainant has acted inconsistently with the actions of someone who is the victim of a crime." In response to the court's questions, defense counsel conceded that neither appellant's father nor Giri would testify that Giri told appellant's father he had fabricated the charges. The trial court sustained the State's objection. The State argues appellant failed to preserve error for review because his second issue presents a different basis for admitting the evidence on appeal than was raised in the trial court. Specifically, the State claims defense counsel argued at trial that the solicited testimony from the complainant and appellant's father was relevant to prove Giri's credibility, while his brief argues the testimony was necessary to prove Giri was biased or had a motive to testify in a particular way. The issue raised on appeal should comport with the objection made at trial, and the trial judge should have an opportunity to rule on the issue — otherwise nothing is presented for appellate review. Johnson v. State, 803 S.W.2d 272, 292 (Tex.Crim.App. 1990) (appellant failed to make proper objection at trial regarding admission of extraneous offense evidence), overruled on other grounds by Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App. 1991). However, the objection will be considered sufficiently specific as long as the appellant's legal basis is "clear from [the] context" so "that both the judge and the prosecutor understood" the nature of his objection. Heidelberg v. State, 144 S.W.3d 535, 539 (Tex.Crim.App. 2004); see also Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977) ("where correct ground of exclusion was obvious to judge and opposing counsel, no waiver results from a general or imprecise objection"). In this case, appellant's issue is preserved because it is clear from the context of the exchange between the prosecutor and defense counsel that the overall credibility of the witnesses was being tested through their bias and motive to testify. The basis for defense counsel's argument was obvious to the district court and the State in this context. We therefore conclude appellant's complaint is preserved for appeal. Standard of Review Turning to the merits of appellant's issue, we review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002). We will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). Applicable Law The constitutional right of confrontation is violated when appropriate cross-examination is limited. Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996). Generally, specific instances of misconduct are inadmissible for the purpose of attacking a witness' general character for truthfulness. Tex. R. Evid. 608(b). Specific instances of misconduct are, however, admissible to demonstrate that a witness is biased or has an interest in the outcome of the case. Tex. R. Evid. 613(b); Dixon v. State, 2 S.W.3d 263, 271 (Tex.Crim.App. 1999). While great latitude should be allowed in cross-examining witnesses to reveal possible bias, prejudice, or self-interested motives to falsify testimony, appellant bears the burden of demonstrating the relevance of the proffered evidence to the issue of bias or prejudice. Chambers v. State, 866 S.W.2d 9, 26-27 (Tex.Crim.App. 1993). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. In order to demonstrate that the proffered testimony is relevant to the issue of bias or prejudice, appellant must establish a specific connection between the witness's testimony and an actual bias or interest. Willingham v. State, 897 S.W.2d 351, 358 (Tex.Crim.App. 1995). Application of Law to Facts We conclude appellant has failed to show the relevance of the excluded testimony to the merits of the case and to the issue of bias or prejudice. The evidence appellant sought to have admitted would not have demonstrated Giri had a bias, prejudice, or motive to falsify his testimony. Defense counsel asked Giri whether he ever discussed the possibility of not testifying in the case or leaving the country in exchange for a payment of money, and Giri denied such conversations ever occurred. Neither appellant's father nor Giri testified that Giri told appellant's father that appellant and Burgoon did not take Giri hostage and rob him. The jurors also could have viewed evidence that appellant's father discussed payment in exchange for dropping the charges against his son as an implicit admission that appellant was guilty of the charged offense. Therefore, the trial court acted within its discretion when it sustained the State's objections. Appellant's second issue is overruled. Prior Criminal Conviction In his third issue, appellant claims the trial court erred in admitting a prior conviction for unlawfully carrying a weapon in Navarro County because the State did not prove he was the same person convicted in that case. The State claims appellant's trial objection to the admissibility of the conviction records based on lack of fingerprints and signature does not comport with the issue he raises on appeal. Alternatively, the State contends that even if appellant's complaint is not waived, appellant's testimony during the punishment phase of the trial was sufficient to link him to the conviction. During the punishment phase, the State introduced certified copies of judgments which showed appellant had four prior misdemeanor convictions. One of these convictions was for unlawfully carrying a weapon in Navarro County on March 22, 2002. Because the conviction documents did not contain appellant's fingerprints, the State attempted to prove the Navarro County conviction — the only one to which defense counsel objected — through cross-examination of appellant. The prosecutor began by asking appellant whether he had ever been to Navarro County. Appellant replied he had been to Corsicana with his father "maybe once." On further cross-examination, appellant admitted his name appeared on the certified documents reflecting a Navarro County conviction for unlawfully carrying a weapon. He initially denied he had been arrested for such an offense but later admitted he had an accident in Navarro County which resulted in his arrest. He also admitted he spent three days in jail due to this incident. The prosecutor then offered State's exhibit 250, which included a certified copy of the Navarro County judgment, for admission. The trial court overruled defense counsel's objection and the exhibit was admitted. Continuing his cross-examination, the prosecutor asked appellant whether he had been arrested "another time" for unlawfully carrying a weapon. Appellant testified he had been convicted in Dallas County for carrying a sword and that he had been twice arrested for unlawfully carrying a weapon. He also admitted that when he had the accident in Navarro County he had a Japanese "Katana Sword" in the back seat of his car. The State first argues appellant's complaint on appeal is not preserved because his trial objection does not comport with his appellate issue. After the prosecutor asked appellant whether he had ever been to Navarro County, defense counsel asked for permission to approach the bench. The record of the bench conference is as follows:[DEFENSE COUNSEL:] I believe the State has previously been prohibited from attempting to introduce a prior conviction because of a lack of fingerprint and a lack of signature. I just want to make sure that they weren't gonna try and get into it unless it was going to be admissible.
THE COURT: Well, they got to serve — they have certified copies. That's not the issue. The issue is whether or not they can prove it up. He's on the stand. They can prove it up through him if they want to.
[DEFENSE COUNSEL:] Um, well, if he denies, I guess, then, involvement with —
[PROSECUTOR:] Then I get stopped.When the State subsequently offered exhibit 250 for admission, defense counsel objected without providing any basis for the objection. On appeal, appellant argues that "[t]he trial court erred in admitting a conviction for unlawfully carrying of a weapon when the State did not prove the appellant was the same person convicted in that case." Although defense counsel did not mention the sufficiency of the State's proof, it is clear from the record that the trial judge and prosecutor understood that the nature of counsel's objection actually concerned whether the State could prove appellant was the same person described in the conviction documents. We conclude the defense's objection was sufficient to bring the matters now raised on appeal to the trial court's attention. See Heidelberg, 144 S.W.3d at 539; Zillender, 557 S.W.2d at 517. Turning to the merits of appellant's claim, we need not determine whether the trial court erred in admitting the conviction because our review of the record persuades us that the error, if any, committed by the trial court in overruling defense counsel's objection was harmless. Therefore, for purposes of this analysis, we will assume error and address appellant's contention that the error was harmful. Error in the admission of evidence is subject to a harm analysis under rule 44.2(b) of the rules of appellate procedure. Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). A violation of the evidentiary rules that results in the erroneous admission of evidence is non-constitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Any non-constitutional error "that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b); see also Tex. R. Evid. 103(a) (error may not be predicated on admission or exclusion of evidence unless substantial right of party affected). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. See King, 953 S.W.2d at 271. A criminal conviction should not be overturned for non-constitutional error 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 slight effect on its verdict. See Johnson, 967 S.W.2d at 417. In the present case, the Navarro County conviction was not reiterated or emphasized by the State during the remainder of the trial or in closing arguments. The jury also received evidence of three other misdemeanor convictions, including a March 2003 conviction for unlawfully carrying a weapon, a November 2003 conviction for driving with a suspended license, and a December 2003 conviction for assault domestic violence. These convictions were admitted without objection from defense counsel. Furthermore, since appellant was facing a potential sentence of five to ninety-nine years or life in prison for aggravated robbery, see Tex. Pen. Code Ann. §§ 12.32(a), 29.03 (Vernon 2003), the forty-year sentence imposed by the jury, which is near the middle of the sentencing range, hardly supports appellant's argument that admission of the Navarro County conviction "inflamed the jury against" him and "led to the imposition of" the forty-year sentence. Given the number of convictions and considering the record as a whole, we conclude any error in the admission of the complained-of documents was harmless. See Tex. R. App. P. 44.2(b). We overrule appellant's third issue. We affirm the trial court's judgment.