Berry v. State

Full title: PAUL BERRY, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Apr 11, 2006

No. 14-04-01019-CR (Tex. App. Apr. 11, 2006)

Opinion

No. 14-04-01019-CR

Memorandum Opinion filed April 11, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 174th District Court, Harris County, Texas, Trial Court Cause No. 1001030. Affirmed.

Panel consists of Justices HUDSON, FROST, and SEYMORE.

MEMORANDUM OPINION

J. HARVEY HUDSON, Justice.

Appellant, Paul Berry, was convicted by a jury of robbery and sentenced by the trial court to 25 years in the Texas Department of Criminal Justice, Institutional Division. In his sole issue on appeal, appellant complains the trial court erred in permitting the State to impeach his testimony with evidence of prior felony convictions. We affirm.

BACKGROUND

On December 28, 2003, Segun Ayeniko was working the noon to midnight shift at the National Mini Mart on Cullen Boulevard in Southeast Houston. At 6:00 p.m., Ayeniko noticed appellant and a female companion, Theodora Hunter, enter the store. Appellant asked why Ayeniko was looking and pointing at him and said "I'm not here to do any stealing or anything." Ayeniko told appellant he was sorry and said he was not looking at him. Appellant brought beers from the beer cooler to the counter and asked for three different brands of cigarettes. Ayeniko put the cigarette cartons on the counter and rang them up with the beer. The total price of the items was more than $100. Ayeniko put the items in a bag. Appellant checked his pockets and said his money should be in the car and asked Hunter to check the car for the money. After going out to the car, Hunter returned and said there was no money in the car. Appellant then left the store stating the money was in the car. When appellant came back in, he did not have the money. When Ayeniko told him he needed the money, appellant said "I already gave you $200." Ayeniko told appellant he had not given him the money. Ayeniko called the police and appellant grabbed the bags off the counter, giving two of the bags to Hunter while he kept the last bag. When Ayeniko saw appellant and Hunter leaving, he dropped the phone and ran after appellant. Appellant hit Ayeniko in the neck with a closed fist. Ayeniko fell back, but struggled back up and grabbed appellant's shirt. Appellant and Ayeniko got into a scuffle and tore each other's shirts. When Ayeniko realized appellant was more powerful than he, he let go of appellant. Appellant went to his car with Ayeniko following him. Hunter had put the bags inside the car and was standing by the car. When appellant tried to get into the car, Ayeniko closed the car door. Appellant ran back into the store with Ayeniko in pursuit. Appellant threw a plastic gallon-sized milk jug at Ayeniko, hitting him in the head. The top of the jug broke off and milk splashed over Ayeniko and the floor. Appellant chased Ayeniko down the aisles and threatened to hurt him if he did not leave him alone. Appellant picked up 40-ounce beer bottles from the cooler and started throwing them at Ayeniko. The first bottle hit Ayeniko and the others broke on the floor. Ayeniko's leg was cut by broken glass. Appellant left the store with Ayeniko in pursuit. The police arrived soon thereafter. Officers Kyle Drey and Jon Thornburg of the Houston Police Department received a dispatch call to a gas station on the corner of Cullen and Yellowstone. As the officers approached the intersection, they saw two people fighting in the parking lot of the gas station. The officers separated and detained appellant and Ayeniko. Appellant told Officer Drey that he had paid for his items, but Ayeniko refused to give him change. Appellant's car was found across the street with Hunter sitting in it. Officer Drey directed Hunter back to the gas station. A bag containing beer and cigarettes was also in the car. Appellant testified he picked up two six-packs of beer, some wine, cold cut meat, and chips and took these items to the counter. Ayeniko told him he owed $105.44. Appellant testified he gave Ayeniko two $100 bills to pay for the items. Appellant, however, then asked Ayeniko to wait because he might have enough change in his car so that he would not have to break the second $100 bill. Hunter went to the car while appellant remained in the store. Hunter brought in appellant's bag from the car. It had $2 and 20 cents in change. Appellant told Ayeniko to take the two $100 bills because he did not have the enough change to cover the $5.44. Ayeniko then said appellant had not given him any money. They started fighting and appellant admitted that he threw the milk jug at Ayeniko. Appellant claims Ayeniko gave Hunter permission to put the bags in the car because the counter was cluttered up with the items he and Hunter were buying. The officers had Ayeniko "count the till down," i.e., check the amount of money in the cash register at that time compared to the amount of sales brought in and the amount that should have been in the register. All the money in the cash register was accounted for.

IMPEACHMENT EVIDENCE

In his sole point of error on appeal, appellant asserts the trial court erred in permitting the State to impeach his testimony with evidence of his prior felony convictions. On cross-examination, appellant testified he was convicted of (1) unauthorized use of a motor vehicle on June 13, 1996, (2) burglary of a building in 1997, (3) robbery on March 11, 1999, (4) delivery of a controlled substance on March 29, 1999, and (5) robbery on September 28, 2001. A complaint on appeal cannot vary from the objection made at trial. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004). At trial, appellant moved to exclude only his two prior convictions for robbery, not any of his other convictions.¹ Therefore, appellant has waived any complaint on appeal about the admission of his prior convictions for unauthorized use of a motor vehicle, burglary, and delivery of a controlled substance. Accordingly, we shall address appellant's complaint in the context of his two prior convictions for robbery. We review a trial court's evidentiary rulings under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). As long as the trial court's evidentiary ruling was at least within the zone of reasonable disagreement, an appellate court may not disturb it. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). Rule 609 of the Texas Rules of Evidence provides for impeachment evidence:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

TEX. R. EVID. 609(a). Prior to admitting impeachment evidence against the defendant, the trial court must find the probative value of such evidence outweighs its prejudicial effect. Theus v. State, 845 S.W.2d 874, 880 (Tex.Crim.App. 1992). There are a number of factors relevant to weighing the probative value of a conviction against its prejudicial effect, including (1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness' subsequent history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. Id. Because some of the factors cut in different directions, these factors are not applied with mathematical precision. Id. With respect to the first factor, i.e., the impeachment value of the prior crime, the impeachment value of crimes involving deception is higher than for crimes involving violence, which have the higher potential for prejudice. Id. at 881. When a party seeks to impeach a witness with evidence of a crime that relates more to deception than not, the first factor weighs in favor of admission. Id. Appellant argues the first factor weighs against admission because the convictions used by the State were, for the most part, crimes of violence, which have a higher potential for prejudice. Appellant does not limit his argument only to his prior robbery convictions. As addressed above, we shall only address his complaint as it concerns his two prior robbery convictions. While robbery is clearly dishonest and involves the threat or use of violence, it is not clear whether it necessarily includes the element of deception. Simpson v. State, 886 S.W.2d 449, 452 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Thus, the first factor favors neither admitting nor excluding the prior robbery convictions. See Davis v. State, No. 14-94-01205-CR, 1997 WL 295591, at *4 (Tex.App.-Houston [14th Dist.] June 5, 1997, pet. ref'd) (not designated for publication) (stating that because it is unclear whether robbery necessarily involves an element of deception, the first factor favors neither party). The second factor, i.e., the temporal proximity of the past crime relative to the charged offense, will favor admission if the past crime is recent and if the witness has demonstrated a propensity for running afoul of the law. Theus, 845 S.W.2d at 881. Appellant concedes the second factor weighs in favor of admissibility because his convictions, including his robbery convictions, were less than ten years old. Both robbery convictions were within six years of appellant's testifying at his trial and within five years of his committing the charged offense. Thus, the second factor favors the admission of his prior robbery convictions. The third factor, i.e., the similarity between the past crime and the offense being prosecuted, will militate against admission if the past crime and the charged crime are similar. Id. The admission for impeachment purposes of a crime similar to the crime charged runs the risk of the jury convicting on the perception of a past pattern of conduct rather than on the facts of the charged crime. Id. The current offense is for robbery and the two convictions subject to this appeal were also for robbery. Appellant argues the third factor weighs against admission and the State similarly concedes that the third factor weighs against admission of the prior robbery convictions. The fourth and fifth factors, i.e., the importance of the defendant's testimony and the importance of the credibility issue, depend on the nature of the defendant's defense and the means available to him of proving his defense. Id. For example, when the defendant presents an alibi defense and can call other witnesses, the defendant's credibility is not likely to be a critical issue. Id. Indeed, the defendant may not need to testify because other witnesses will testify in his defense. Id. However, when the case involves the testimony of only the defendant and the State's witnesses, the importance of the defendant's credibility escalates, as will the State's need for an opportunity to impeach the defendant's credibility. Id. Appellant argues the fourth and fifth factors cancel each other out. Because appellant was the only witness to testify in his defense, the fourth factor weighs against admission. Because credibility was central to determining the factual conflicts between testimony, the fifth factor weighs in favor of admission. We disagree. Appellant and Ayeniko, the only two testifying witnesses to the offense, described competing versions of the offense. Appellant testified that he gave Ayeniko $200 for the beer and cigarettes, while Ayeniko testified that appellant never gave him any money. Therefore, appellant's credibility was important to his defense and the State had a significant need to impeach his testimony. Accordingly, the fourth and fifth factors weigh in favor of the admission of the prior convictions for robbery. Appellant argues the comparative analysis of the overall weight of the evidence weighs against admission and, therefore, the trial court abused its discretion by admitting evidence of his prior convictions for impeachment under Rule 609(a). Three factors weigh in favor of admission, one factor weighs against admission, and one factor does not favor either admission or exclusion of the prior robbery conviction. Because the admission of the prior robbery convictions falls within the zone of reasonable disagreement, we conclude the trial court did not abuse its discretion. As set forth below, even if the trial court erred in admitting the prior robbery convictions, we do not believe such error warrants reversal.

HARM ANALYSIS

Any nonconstitutional error "that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence 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 a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). In determining whether the jury's decision was adversely affected by the error, the reviewing court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). The appellate court may also consider the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire, if applicable, and whether the State emphasized the error. Id. at 355-56. Finally, evidence of the defendant's guilt is a factor to be considered in any Rule 44.2(b) harm analysis. Id. at 358, 360. Appellant argues that by emphasizing his prior convictions, the State used that evidence to discredit his version of the events as compared to Ayeniko's version. Therefore, according to appellant, the error in the admission of his prior convictions had more than a slight effect on the jury's verdict. The prosecutor argued, in relevant part:

The other thing is that he's a five-time convicted felon.

* * *

You basically have the complaining witness' story, a person that has no reason to lie to you. . . . And on the other hand, you have Paul Berry, who has every reason in the world to lie to you. You know he's good at lying.

Look at his deceitful history. Unauthorized use of a motor vehicle, burglary of a building, robbery, robbery. And you know he has another real good reason to lie to you, because he admitted it up there that he knows what the effect of admitting the truth will have on him. He's on parole. He knows what that can mean for him.

* * *

So, you have the testimony of a five-time convicted felon against Segun Ayeniko's testimony. . . . They kept this five-time convicted felon from escaping this robbery.

* * *

. . . The cops did everything that they could to stop him, to stop five-time convicted felon from getting away with robbery.

Appellant complains of the prosecutor's referring to him as a "five-time convicted felon." However, three of appellant's prior convictions, i.e., unauthorized use of a motor vehicle, burglary of a building, and delivery of a controlled substance, were admitted without objection. Of those prior convictions, burglary is a crime involving deception and has high impeachment value. White v. State, 21 S.W.3d 642, 647 (Tex.App.-Waco 2000, pet. ref'd). Also, in his closing argument, the prosecutor emphasized the reasons Ayeniko had no motive to lie about appellant's not paying for the beer and cigarettes.² Furthermore, only the fact of the convictions was in evidence. There was no testimony about the details of the prior offenses. Moreover, the trial court's charge instructed the jury that evidence of appellant's prior convictions could not be considered as evidence of guilt in the current case, but only as an aid in determining the weight to be given his testimony.³ We must presume the jury followed the trial court's charge. Gamez v. State, 737 S.W.2d 315, 324 (Tex.Crim.App. 1987). Finally, while Ayeniko and appellant testified as to competing versions of the events, i.e., whether appellant gave Ayeniko two $100 bills, other evidence, including the fact that beer and cigarettes from the store that were found in appellant's car and the fact that no unaccounted for money was found in the cash register, support the jury's finding of guilt. We conclude the admission of appellant's two prior robbery convictions did not influence the jury or had only a slight effect. Appellant's point of error is overruled. Accordingly, the judgment of the trial court is affirmed.