No. 09-09-00173-CR
Submitted on May 7, 2010.
Opinion Delivered August 18, 2010. DO NOT PUBLISH.
On Appeal from the 260th District Court, Orange County, Texas, Trial Cause No. D-080573-R.
Before GAULTNEY, KREGER, and HORTON, JJ.
DAVID GAULTNEY Justice.
On appellant's motion for rehearing, we withdraw the opinion of June 9, 2010, and substitute this opinion. A jury found Christopher Dean Bennett guilty of felony theft, and assessed his punishment at fifteen years of confinement. See TEX. PEN. CODE ANN. § 31.03(a), (e)(5) (Vernon Supp. 2009). He was fined $5,000. Bennett raises four issues on appeal. In his first issue, he argues the State's failure to disclose the criminal record of a witness deprived him of his due process rights. In his second and third issues, Bennett contends that the trial court erred in allowing references to Bennett's criminal past during the guilt/innocence phase and that, as a result of the references, he was denied his right to a fair and impartial trial. Bennett's fourth issue challenges the legal and factual sufficiency of the evidence supporting the jury's verdict. We conclude that the evidence is legally and factually sufficient, that the undisclosed information would not have affected the outcome, and that appellant was not denied a fair and impartial trial. The trial court's judgment is affirmed.
BACKGROUND
The owner of the stolen property, Jeff Buckley, parked his diesel truck at his residence in Orange, Texas. An all-terrain vehicle was on a lowboy trailer hitched to the truck. Early on the morning of July 30, 2008, around 4:00 a.m., Buckley heard someone start a truck, but he thought it was the neighbor's truck. When Buckley walked out of his house to leave for work, he noticed his truck and trailer were gone. The value of the property, including the A.T.V., exceeded $20,000. Buckley contacted the police. Early on the morning of July 30, 2008, around 5:00 a.m., Christopher Bennett arrived at Jessie Holmes's apartment in Orange. Holmes, Bennett's half-brother, lived with Amber McSham. McSham saw a truck, trailer, and A.T.V. parked outside the apartment. Bennett usually rode his bicycle. Bennett insisted on talking to Holmes. McSham testified that although Bennett did not tell her he stole the truck, she told Bennett that "[i]f he had anything stolen, he didn't need to be there[,]" and she called the Orange Police Department. Jessie Holmes testified Bennett arrived unexpectedly at the apartment. Bennett wanted to talk to Holmes outside. Holmes walked out onto the balcony and saw a truck with a trailer and A.T.V. Bennett indicated that he had arrived in the truck. Holmes had never seen the truck, trailer, or A.T.V. before. Bennett typically "g[o]t around town" on his bicycle, and it looked to Holmes like Bennett's bicycle was in the back of the truck. Bennett asked Holmes to ride with him to Holmes's grandmother's house. Holmes explained he could not go because he had to work. Holmes described his relationships with both Bennett and McSham as "rocky[.]" He also testified that McSham had a history of calling the police and making accusations against Bennett and himself. Holmes gave a statement to the police concerning the stolen property. One of the police sergeants told him that he would talk to the district attorney about getting an aggravated assault case dropped. Holmes's statement said Bennett asked him to go to a hunting lease, not to Holmes's grandmother's house. Holmes explained that, although he signed the statement, he did not write the statement, and that portion of the statement was incorrect. The police located Buckley's undamaged truck, trailer, and A.T.V. The police notified Buckley and he met the police at the truck's location. Apparently, the truck had run out of diesel. None of Buckley's personal items had been removed. Based on the report from McSham that Bennett had stolen the property, and Buckley's statement to the police, the police released the truck, trailer, and A.T.V. to Buckley. The police did not take photographs of the stolen property or attempt to obtain fingerprints. On his way back to his house, Buckley noticed a vehicle flashing its lights in an attempt to get his attention. Buckley pulled over. Buckley testified a woman named Amber introduced herself and apologized for "Christopher stealing my truck." Buckley did not know the woman or Bennett. McSham acknowledged at trial that she had a conversation with Buckley in Orange after she saw him driving the truck. She did not remember apologizing to Buckley, but she did remember asking him what happened, and if anything was missing from the truck. The police confronted Bennett, but Bennett told them that "if he thought he needed to talk to [the Orange Police Department] he would . . . get a hold of them." DUE PROCESS
Bennett argues the State deprived him of his due process rights by failing to disclose Buckley's record. Bennett contends his conviction was caused by the State's Brady violation. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Bennett had filed a motion for the trial court to order the State to disclose the arrest and conviction records of the State's witnesses. The trial court issued a discovery order that required the State to provide Bennett with items including "[a]ll known convictions which are admissible for impeachment concerning any of the State's proposed witnesses[,]" and "[a]ll exculpatory evidence pursuant to Brady vs. Maryland and related cases." The State filed discovery responses listing Buckley as one of the State's potential witnesses and stating that "[t]he State is not aware of any criminal history of any of the civilian witnesses listed above." After the presentation of the evidence but before the jury reached a verdict, someone in the courthouse informed State's counsel that Buckley had a felony conviction for drug possession. Bennett moved for a mistrial based on the State's failure to disclose. The trial court denied the request. Bennett filed a motion for new trial, which the trial court denied. After Bennett filed his appeal, the State filed a motion to supplement the record in the trial court. At the hearing on the motion to supplement, State's counsel presented an affidavit. The trial court granted the motion to supplement the record with information concerning Buckley's record. At the time the trial court held the hearing to consider the State's motion to supplement the record, the trial court lacked jurisdiction. The reporter's record and clerk's record were already filed in this appeal. See TEX. R. APP. P. 25.2(g) (once record filed in appellate court, trial court proceedings are suspended until trial court receives mandate); Farris v. State, 712 S.W.2d 512, 514 (Tex. Crim. App. 1986) (holding trial court's power to act in a given case ends when the appellate record is filed in appellate court, except for matters concerning bond, and trial court's attempt to supplement record after appellate record was filed was invalid). No effort was made by the State to obtain an abatement of the appeal and a remand to the trial court for purpose of the hearing. See Farris, 712 S.W.2d at 514 n. 2 (citing Duncan v. Evans, 653 S.W.2d 38 (Tex. Crim. App. 1983)). While an appellate record may be supplemented with a record of proceedings that occurred while the trial court had jurisdiction, that is not what happened here. See id. Any proceeding which occurred when the trial court lacked jurisdiction is not part of the appellate record. See Green v. State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995). Under the Due Process Clause of the Fourteenth Amendment, a prosecutor has an affirmative duty to turn over material exculpatory evidence. Brady, 373 U.S. at 87-88; Ex parte Kimes, 872 S.W.2d 700, 702 (Tex. Crim. App. 1993). The prosecution violates due process when it suppresses evidence in its possession favorable to an accused "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. Impeachment evidence, as well as exculpatory evidence, is included within the scope of the Brady rule. See U.S. v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Evidence withheld by a prosecutor is "material" if there is "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 682. A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Id. A due process violation has occurred if a prosecutor (1) fails to disclose evidence, (2) favorable to the accused, (3) which creates a probability of a different outcome. See Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992). In this case, Bennett has failed to show that the outcome of the proceedings would have been different had the jury known of Buckley's record. See id. He has not demonstrated that Buckley had a conviction that would have been admissible as evidence. Furthermore, even if Buckley's record should have been admitted, the evidence linking appellant to the theft does not turn on Buckley's credibility. During trial, Buckley testified that his property had been stolen, and he testified to the value of the property. He did not attempt to directly identify the person who took the property. He did testify that once the vehicle was returned to him he was approached by a woman named Amber, who apologized for Bennett's theft of the truck, but this testimony was largely confirmed by McSham, and the evidence establishing that Bennett took the truck came from sources other than Buckley. McSham testified the truck, trailer, and A.T.V. were parked at her apartment on the same morning Buckley reported them missing. McSham told Bennett to leave if he had stolen something. She called the police to report Bennett was in possession of the truck, trailer, and A.T.V. Holmes testified Bennett indicated he had arrived in the truck with the trailer and A.T.V., which Holmes had never seen him drive. The bicycle Bennett typically rode appeared to be in the back of the truck. Holmes testified Bennett wanted him to travel on the same highway where the stolen property was ultimately recovered. We conclude that there is no reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. See id. Issue one is overruled. REFERENCES TO BENNETT'S CRIMINAL PAST
In his second and third issues, Bennett asserts that during the guilt/innocence phase of the trial, the trial court erred in allowing repeated references to Bennett's criminal past, and those inadmissible references resulted in a denial of his right to a fair and impartial trial. The trial court granted Bennett's motion in limine requesting an order instructing the State and its witnesses not to mention, allude to, or refer to, in the presence of the jury, any prior conviction or alleged violation of law by Bennett. Bennett claims the testimony of Holmes and Buckley included references to Bennett's criminal past in violation of the motion in limine. Holmes testified that he has known Bennett his "whole life" and when asked by the State how he would describe their relationship, he responded, "He's been in prison most of my life." Bennett objected and argued the testimony violated the motion in limine. The trial court denied his request for a mistrial but instructed the jury to disregard the statement. Later, when the State asked Holmes whether "there were also some good times in [Holmes's] relationship with [Bennett]," Holmes responded, "Yeah. I'm the one that got him out of jail the first time." Bennett made no objection to this testimony. The third statement challenged on appeal by Bennett was Buckley's testimony that Amber told Buckley that "she was upset with the situation and . . . he had done this before, stuff similar; and they were just tired of it." Bennett objected to the testimony on the ground that it violated the motion in limine granted by the trial court. The trial court overruled the objection. We review the denial of a motion for mistrial under an abuse-of-discretion standard. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999). A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex Crim. App. 2004). A motion in limine does not preserve error. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994). To preserve error regarding the admission of evidence in violation of a motion in limine, an objection should be made at the time the evidence is offered. Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972); see also TEX. R. APP. P. 33.1(a). If the court sustains the objection, the objecting party must then ask the court to instruct the jury to disregard the testimony. If the court instructs the jury to disregard the testimony, the party must then move for a mistrial to preserve error. See Koller v. State, 518 S.W.2d 373, 375 n. 2 (Tex. Crim. App. 1975). The party objecting to the testimony must obtain an adverse ruling from the court; otherwise, he has received all the relief he requested. See generally Adams v. State, 685 S.W.2d 661, 670 (Tex. Crim. App. 1985). The trial court instructed the jury to disregard Holmes's statement that Bennett had been in prison most of Holmes's life. When a trial court instructs a jury to disregard certain testimony, we generally presume that the jury follows the trial court's instructions. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); cf. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (noting that a trial court is required to grant a motion for mistrial 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."). The trial court did not abuse its discretion in denying the motion for mistrial. See, e.g., Tennard v. State, 802 S.W.2d 678, 685 (Tex. Crim. App. 1990) (prompt limiting instruction given after a witness referred to the defendant's prior prison time cured any error); Barney v. State, 698 S.W.2d 114, 125 (Tex. Crim. App. 1985) (instruction to disregard a reference to defendant's status as an "ex-con" sufficiently cured any error). Bennett did not object to Holmes's comment that he got Bennett "out of jail the first time[,]" and therefore did not preserve error. Brazzell, 481 S.W.2d at 131; see also TEX. R. APP. P. 33.1(a). Bennett's objection that Buckley's testimony was in violation of the motion in limine was not a specific objection sufficient to preserve error. See TEX. R. APP. P. 33.1(a)(1); TEX. R. EVID. 103(a)(1). Issues two and three are overruled. SUFFICIENCY OF THE EVIDENCE
In his fourth issue, Bennett challenges the legal and factual sufficiency of the evidence to support his conviction for felony theft. In a legal sufficiency review, we consider the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Young v. State, 283 S.W.3d 854, 861 (Tex. Crim. App. 2009), cert. denied, 130 S.Ct. 1015, 175 L.Ed.2d 622 (2009) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The factfinder resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. Id. "[I]n analyzing the legal sufficiency, we will determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence, both direct and circumstantial, when viewed in the light most favorable to the verdict." Id. at 861-62 (footnote omitted). We may not re-evaluate the credibility and weight of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). In a factual sufficiency review, we consider the evidence in a neutral light rather than in the light most favorable to the verdict. Young, 283 S.W.3d at 862. Evidence is factually insufficient (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, or (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id. A person commits the offense of theft "if he unlawfully appropriates property with intent to deprive the owner of property." TEX. PEN. CODE ANN. § 31.03(a). The jury was free to weigh the evidence, resolve any conflicts in the evidence, and draw reasonable inferences from the evidence. See Young, 283 S.W.3d at 862-63. Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Viewing the evidence in a neutral light, and recognizing the jury's function in weighing the evidence and resolving any conflicts, we conclude that the evidence supporting the verdict is not outweighed by the great weight and preponderance of the evidence, and not so weak as to render the verdict clearly wrong and manifestly unjust. See id. Issue four is overruled. The judgment is affirmed. AFFIRMED.