No. 14-07-00184-CR
Opinion filed February 28, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 178th District Court Harris County, Texas, Trial Court Cause No. 1078592.
Panel consists of Chief Justice HEDGES, Justice ANDERSON and Senior Justice Price.
Senior Justice Frank C. Price sitting by assignment.
FRANK C. PRICE, Senior Justice.
Appellant, Samuel Gus Brown, appeals a conviction for aggravated robbery on the grounds that: (1) the trial court erred by overruling his objection to irrelevant evidence that people in the area commonly do not call police when they find something like a gun; and (2) the trial court erred by overruling his objection to irrelevant evidence that it was common for Officer Woolley ("Wooley") not to find a weapon in other cases he had investigated. We affirm.
Background
On July 19, 2006, Octavio Rodas ("Rodas") was sitting near his mailbox when two males, one Black and the other Hispanic, approached him with a request for $2.00. When he complied with their request, the black man pulled out a gun and put it to his back, subsequently relieving him of his remaining ninety dollars. Following the robbery, Rodas quickly returned to his apartment, obtained a rachet wrench, and proceeded to follow his assailants. He did so without their being aware of it and while calling friends on his cell phone to come to his assistance. He followed them until they split up, near the Deerfield apartment complex (an apartment complex about five minutes walk from the scene of robbery). At that time Rodas and his friends began an open pursuit of the Hispanic male he escaped by jumping a fence. Rodas and his friends then returned to the Deerfield apartment complex and sighted appellant. After a brief pursuit, they apprehended him and held him until authorities arrived. Initially, appellant gave the arresting officer a false name, Brad Gene, and a false date-of-birth; he also said that the Hispanic male was the one with the gun. He later recanted his statements to the arresting officer concerning his role in the robbery, offering instead that he, himself, had been robbed by the other Hispanic male. While Rodas identified appellant as the one who had the gun, it is clear that appellant did not possess a gun at the time he was arrested. A search of the area surrounding the Deerfield apartments turned up no firearm, even though Rodas claims he maintained visual contact with appellant from the robbery to the apprehension, except for the brief moments when he returned to his apartment and when he and his friends initially chased the Hispanic male (between 3 and 6 minutes). During his observation, Rodas did not see appellant dispose of a gun, nor was a gun found on appellant's person when he was arrested. The prosecution helped allay the jury's concern about the absence of a deadly weapon by noting that the other male could have taken it, or that it might have been disposed of in an area were there were many hiding places. The Prosecution also opined that people in the area do not commonly call to notify police if they find something and that many times perpetrators attempt to dispose of a weapon, leading to cases where one is not recovered. Apppellant was charged with aggravated robbery with a deadly weapon. Appellant's counsel did not request the lesser-included charge of robbery, and the State did not request an instruction on the law of parties. During jury deliberations, the jury noted this when it asked: "For it to be Aggravated Robbery does the person charged have to be in possession of the weapon, or just in the party of the robbery?" The Court responded; "You are governed by the charge given." In spite of the failure of the State to introduce a firearm, the jury convicted appellant of aggravated robbery with a deadly weapon and sentenced him to 20 years imprisonment in the Texas Department of Criminal Justice, Institutional Division. No motion for a new trial was filed. Appellant gave notice of appeal on February 28, 2007. Standard of Review
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); Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2000). We will not reverse a trial court's ruling on the admissibility of evidence as long as it is within the zone of reasonable disagreement. Torres, 71 S.W.3d at 760; Burden, 55 S.W.3d at 615. As a general rule, 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. Evidence that is not relevant is not admissible. Tex R. Evid. 402. The determination of relevancy to an issue in the case lies within the sound discretion of the trial court and will be disturbed only upon a clear abuse of that discretion. See Chambers v. State, 866 S.W.2d 9, 27 (Tex.Crim.App. 1993); Johnson v. State, 698 S.W.2d 154, 160 (Tex.Crim.App. 1985), ( superceded on other grounds, Mayes v. State, 816 S.W.2d 79 (Tex.Crim.App. 1991)). In addition, there is no purely legal test for determining if evidence will tend to prove or disprove a proposition, and hence we are forced to rely on common sense and logic. Miller v. State, 36 S.W.3d 503, 507 (Tex.Crim.App. 2001). If evidence, as admitted, offends the rules of evidence, we must conduct a harm analysis. High v. State, 964 S.W.2d 637, 638 (Tex.Crim.App. 1998). Rule 44.2 dictates that if the error is a constitutional error, the appellate court must reverse the conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a); Aguirre-Mata v. State, 992 S.W.2d 495, 498 (Tex.Crim.App. 1999). For any other error, defect or variance, if it does not affect a substantial right, it must be disregarded. Tex. R. Evid. 44.2(b); Sauceda v. State, 162 S.W.3d 591, 597 (Tex.App.-Houston [14th Dist.] 2005 pet. ref'd). A substantial right is affected when: (1) the error had a substantial and injurious effect or influence in determining the jury's verdict; or (2) it leaves us in grave doubt as to whether it had such an effect. Davis v. State, 22 S.W.3d 8, 12 (Tex.App.-Houston [14th Dist.] 2000, no pet.). When erroneous evidence is admitted, but either does not substantially influence the jury, or only has a slight influence on the jury's decision to convict or assign punishment, it does not affect substantial rights. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002); Bass v. State, 222 S.W.3d 571, 578 (Tex.App.-Houston [14th Dist.] 2007, pet. filed). Appellate courts will not overturn the conviction for non-constitutional error if the court, after a review of the entire record, is convinced that the error had minimal influence on the jury's verdict in other words, that evidence proffered in error must be found to have substantially swayed the jury. See Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App. 2001); Davis, 22 S.W.3d at 12; Umoja v. State, 965 S.W.2d 3, 11 (Tex.App.-Fort Worth, 1997, no pet.). In making this assessment, we review the entire record, including testimony, physical evidence, the nature and character of the evidence supporting the conviction, jury instructions, theories of guilt and innocence, arguments made to the jury and even relevant voir dire. See Schutz, 63 S.W.3d at 444-45. In short, for it to be reversible error, the evidence must have some bearing on the outcome of the trial. Davis, 22 S.W.3d at 12. Analysis
In his appeal, appellant contends that: (1) the trial court erred by overruling his objection to irrelevant evidence that people in the area commonly do not call police when they find something (impliedly referencing a gun); and (2) the trial court erred by overruling his objection to irrelevant evidence that it was common for officer Woolley not to find a weapon in other cases he had investigated. The State contends that the comments concerning the recovery of a firearm are relevant because they are related to the investigation and to the element of "a firearm." The State contends that this evidence helped to explain why no weapon was recovered during the arrest — a point of contention discussed as early as voir dire when the State asked jurors if the failure to recover a firearm would preclude any of them from a finding of guilt. Appellant counters that Wooley's comments "[were] not relevant to appellant's guilt or innocence in this particular case, and the only possible purpose was to bolster the testimony of the complaining witness that appellant used a gun . . ." Appellant then cites Torres v. State and Irizarry v. State, for the proposition that testimony unrelated to innocence and guilt is inadmissible. 92 S.W.3d 911, 919 (Tex.App.-Houston [14th Dist.] 2002 pet. ref'd); 916 S.W.2d 612, 616 (Tex.App.-San Antonio 1996, pet. ref'd). While the facts of the cases cited are different from the facts at hand, we find the trial court nonetheless abused its discretion when it admitted the evidence at trial. The fact that people in the area do not commonly call police when they find something, like a gun, is irrelevant. It does not tend to prove or disprove any of the facts in the case. However, even though the testimony of Officer Wooley was erroneously admitted, we do not believe that the error affected appellant's substantial rights that is, given all of the evidence before the jury, we believe it unlikely that his two comments had a substantial effect on the jury's verdict. See Ladd v. State, 3 S.W.3d 547, 568 (Tex.Crim.App. 1999) (finding no abuse of discretion in admitting the evidence but still addressing the admission under harm analysis). The State points to the fact that the defendant ran when confronted, that he gave Wooley incorrect identification information, that he admitted to involvement when he indicated, initially, that the other perpetrator actually had the gun, and that the victim, Rodas, identified him. Appellant's own admission confirms that a gun was used, and Rodas' testimony places the gun squarely in appellant's hands during the robbery. While this evidence is not overwhelming, it is substantial enough to warrant a conviction. See Motilla, 78 S.W.3d at 359. Ths State contends that it is upon this evidence that appellant was convicted. Appellant counters, in stark contrast, that the jury convicted him only because of Wooley's irrelevant comments, making it possible for the jury to convict him of aggravated robbery without having to produce the gun with which he allegedly committed the robbery. In this case, the State's argument is more persuasive. Wooley's comments merely restate the possibility that the gun was likely disposed of by appellant after the robbery, that there are myriad locations in which he could have disposed of the gun, that while Rodas had visual contact with appellant for most of the pursuit, there were significant episodes where that contact was suspended, and that it is possible the second assailant left the scene with the gun. Again, even though Wooley's comments were irrelevant, the State refrained from emphasizing them in its closing argument, obviously not relying on them to obtain a conviction (nor did the jury seek to have this testimony read back to it as part of its deliberations). See Torres v. State, 92 S.W.3d at 919 (holding that the State's reliance upon this evidence in closing makes it more likely that it was pivotal to the conviction); see also Motilla, 78 S.W.3d at 359 (holding the same). It would be highly speculative on our part to assume that the jury premised its decision about whether to believe Rodas' or appellant's version of events on Wooley's comments concerning the missing weapon. The jury's question proves that it considered the element of gun possession carefully, making sure in its note to the court that aggravated robbery was contingent upon the defendant's being the one who possessed the firearm. It did not convict him based upon the law of parties, but rather on an affirmative finding that appellant did, in fact, possess a gun during the commission of the robbery. That a gun was used was not at issue only which of the two assailants possessed the gun. On this matter, the jury found appellant to have been culpable, and did so in only 47 minutes. Hence, while appellant makes much of not asking for a lesser-included offense charge, this speaks more to the State's confidence that it could obtain a conviction for aggravated robbery notwithstanding its failure to recover the weapon. The State felt it had enough to go forward with aggravated robbery, and while the defense could have tempted the jury with a lesser-included offense, it made no such request. It is clear the jury understood its verdict. Accordingly, the judgment of the trial court is affirmed.