No. 05-05-01445-CR
Opinion Filed January 8, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F04-50643-J.
Before Chief Justice THOMAS and Justices O'NEILL and FITZ GERALD.
LINDA THOMAS CHIEF JUSTICE.
A jury convicted appellant of capital murder in the course of committing or attempting to commit a robbery. See Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003 Supp. 2007). The State did not seek the death penalty, and the trial court assessed punishment at life imprisonment. In five issues, appellant contends the evidence is legally and factually insufficient to support the verdict and the trial court erred by admitting appellant's written statement, failing to properly instruct the jury on reasonable doubt regarding self-defense, and denying appellant's motion for mistrial. We affirm.
Factual Background
On January 1, 2004, a fisherman discovered a body on South Loop 12 in Dallas County. Dallas Police Detective Mark Ahearn responded to the call. Ahearn testified the victim had obvious head injuries — part of the scalp had been lacerated and pulled away from the skull — as well as facial injuries. One ear was almost torn off. There was duct tape intertwined or wrapped around the victim's hands as if they had been bound. A piece of timber on the ground close to the body was stained with blood. The ground was damp, but there was no mud on the victim's shoes, leading Ahearn to believe the body had been carried or dragged to the location. There was no wallet on the body, but there was a ring containing keys and several grocery store savings cards. From one of the grocery stores, Ahearn learned the owner of the card was named Charles Nixon. He performed a driver's license search on the name and found an address in Lancaster. At Ahearn's request, Lancaster police officers went to the address and discovered the apartment door was unlocked. There was no one inside the apartment, and it was obvious items were missing. Keys from the body worked in the door to the apartment. Nixon's vehicle was abandoned approximately a mile-and-a-half from where his body was found. There appeared to be blood around the seal of the trunk, and the floor and the floor mats inside the trunk were soaked with blood. Ahearn found another piece of timber with red discoloration similar to the one found next to the body. He also found additional duct tape. Ahearn submitted samples from the vehicle and the two boards to the Southwest Institute of Forensic Sciences (SWIFS) for forensic testing. Ahearn learned Nixon's credit cards had been used after his death at a gas station, a 7-11 store, a Minyard's, and a Wal-Mart. One of Nixon's credit cards was also used to pay the cable account of Latoya Griffin. Griffin admitted to Ahearn she used the credit card to pay her cable bill. After being confronted with the security tape from the Wal-Mart transaction, Griffin admitted using the card at the Wal-Mart and said Francine and Quincy Glosson were there as well. Both Francine and Quincy admitted using the cards. Quincy said Christopher Donnell or "CC" gave him the credit cards. CC is appellant's cousin. Nixon's family provided Ahearn with a list of property missing from the apartment. Based on the serial number, a Bose radio owned by Nixon was located at a pawn shop in Garland. The pawn shop's records indicated Felicia Boggess pawned the radio, but, the security surveillance system showed a man and a woman pawning the radio. Boggess identified Edward Hall as the man with her in the pawn shop. Hall told Ahearn appellant gave him the radio. Periodically, Hall lived with appellant's sister, with whom he had a child, and appellant at appellant's mother's house. From CC and Hall, Ahearn learned appellant was the person who knew Nixon. Ahearn obtained Nixon's cell phone records and traced two of the numbers Nixon called regularly to appellant's mother's house and to appellant's pager. Ahearn met with appellant on April 2, 2004. After some preliminary questions, Ahearn read appellant his rights and asked about the murder. After initially denying he knew Nixon or was involved in the murder, appellant agreed to give a written statement. The statement was admitted into evidence, and Ahearn read it to the jury. In the statement, appellant admitted he met Nixon through an Internet chat line. Appellant gave Nixon both his pager and home telephone numbers, and Nixon called appellant a few times. Appellant met Nixon only two times, but spoke with Nixon over a six-to eight-week period. Nixon encouraged appellant to get into modeling. According to appellant, in late December 2003 Nixon called him at his mother's house and arranged a meeting. Nixon picked him up around 6:00 p.m. and gave him a contract for modeling. After appellant signed the contract, they went to the Picture Place in Big T Plaza to take pictures. They started driving to Nixon's Pleasant Grove apartment, but appellant decided he wanted to go home. Nixon refused to take him home and would not stop the car. Appellant grabbed the steering wheel and turned it to the right, causing the car to swerve down a ramp by a park. Appellant got out of the car, but Nixon jumped out and started coming towards him to force him back into the car. He ran, but Nixon followed. Appellant was "walking away from him" when he passed a stick. Appellant picked up the stick and hit Nixon. Nixon grabbed appellant, and appellant pushed him down on the ground and hit him. Appellant does not know how many times he hit Nixon, but hit him "a lot of times." Appellant then used Nixon's cell phone to call Hall and CC at appellant's mother's house. Appellant denied he was involved in robbing Nixon, but believed Hall and CC may have done so. Ahearn testified there was no evidence Nixon had been involved with photography or modeling. There was no evidence of a modeling contract signed by appellant. Nixon's cell phone records did not show a call to appellant's mother's house on December 31, 2003. Further, although appellant had been to Nixon's apartment, the address given in appellant's statement was incorrect. Nixon lived in Lancaster, not in Pleasant Grove. Kermit Nixon, Nixon's brother, testified Nixon was forty-one and worked as a teller for Chase Bank. Nixon was not a violent person and never exhibited any type of aggressive behavior. Kermit repeatedly attempted to call Nixon on January 1, 2004 because they were supposed to have a family dinner. He became concerned when Nixon did not answer and went to Nixon's apartment at approximately 10:00 p.m. The police were at the apartment when he arrived. Kermit noted a Bose radio, two DVD players, a microwave, and two televisions were missing from the apartment. He also recalled Nixon having a collection of coins. He monitored Nixon's credit cards and informed Ahearn about the charges that were made after Nixon's death. Donna Hickson, a coworker and personal friend of Nixon's, testified Nixon was dating someone in November and December of 2003. Nixon received a telephone call at the bank between 1:00 and 2:00 p.m. on December 31, 2003. When she asked Nixon whether he was going to have company that night, he said yes. She assumed it was the person Nixon had been dating. She did not approve of Nixon meeting someone over the Internet and was concerned for Nixon's safety. Victor Green was Nixon's best friend for twenty years. Although he never met the person Nixon was dating in late 2003, he spoke to him several times on the telephone. The person was at Nixon's apartment and said his name was Aundre. Green made arrangements to meet Aundre several times, but something always came up. Green was concerned about the relationship because the person did not want to become intimate with Nixon and did not want to meet Nixon's friends. Nixon was not aggressive or violent and not the type of person to force himself on someone else. Nixon had no interest in photography or modeling. Arthur Christian testified he lived in the same apartment complex as Nixon and had been Nixon's friend for several years. Nixon was funny, mild-mannered, and gentle in spirit. Nixon was also "a bit naive" and trusting of everybody. Nixon was dating someone in November and December 2003 whom he met on a dating line. Christian met the person once and identified appellant as that person. On January 1, 2004, Christian went to Nixon's apartment because Nixon was not responding to his telephone calls. The door opened when he knocked, but he did not see any signs of a forced entry. He saw the television was gone. He entered the apartment and called Nixon's name. When he did not receive a response, he ran to his apartment and called the police. Quincy testified he knows CC, but does not know appellant. On December 31, 2003, CC came to his apartment late in the day with two credit cards. He recalls the name "Charles" on the cards. They bought gas using the credit cards and then filled up the tanks in other cars, using the credit cards and accepting cash from the driver of each vehicle. He kept the credit cards when CC took him home. Quincy used the cards the next day at a Wal-Mart and then threw the cards away. CC said it was good he got rid of the cards because "he thought the guy was dead or something." Sheila Spotswood, a medical examiner for Dallas County, testified she examined Nixon's body and, due to the number and locations of the contusions, could not determine how many contusions were on the body. Although she could not say exactly what caused the contusions, the injuries were consistent with Nixon being struck repeatedly by the two pieces of wood located by the body and the abandoned car. Nixon died as a result of blunt force head injuries, and any of the lacerations on Nixon's scalp could have been lethal. The cause of death was homicide. Spotswood was not aware of any physical evidence linking appellant to the offense. Tara Johnson, a forensic biologist at SWIFS, testified a complete DNA profile for Nixon was found on the steering wheel cover from the abandoned vehicle, both boards, the duct tape, and one of the floor mats from the trunk. Statistically, only one in 343 quadrillion unrelated individuals would have the same DNA profile as Nixon. Nixon was also a possible source of DNA found on the stained cloths from inside and outside the trunk of the automobile. Appellant was excluded as a source of DNA from the steering wheel cover, both boards, the duct tape, the floor mats, and the stained cloth from inside the trunk. Appellant and CC were a possible source of DNA from a stained cloth from outside the trunk. However, Johnson did not obtain a complete DNA profile from the cloth and located only one genetic marker that matched appellant's genetic markers. Out of 100 individuals, at least thirty-nine would have that genetic marker. Egypt Bradley, CC's estranged wife, testifed CC is appellant's cousin. Before she separated from CC, she found a letter from appellant to CC that had been sent to appellant's mother's house. The letter contained statements Hall and Boggess had given to the police and a line-up card with five other individuals who fit CC's description. The letter stated Hall was snitching and CC needed to take care of the situation or have Hall "knocked off" or killed. The letter also said since appellant was "taking the rap," CC should do at least that much for him. When she asked CC about the letter, he denied any involvement in the murder. In March 2005, she found another letter from appellant to CC in a phone book CC left in her car. It contained another line-up of men who looked like CC. She confronted CC about the letter. CC said he stomped and kicked Nixon, but did not kill him. However, she told her mother CC confessed to killing Nixon. CC said appellant was "not going to snitch" and "was going to do the time for him." She took CC's statements as an admission he had a part in the murder. Alberto Canelo, the assistant manager for Top Dollar Pawn, testified a person is required to present identification in order to pawn an item. The pawn shop keeps a record of the model and serial number of the item and the date it was pawned. Appellant pawned a 27-inch RCA television on January 3, 2004 and a DVD player on January 15, 2004. Appellant did not reclaim the items, and they were sold. Shelia Donnell pawned a microwave on March 25, 2004. Detective Gary O'Pry testified he obtained fingerprints from the microwave pawned by Shelia. CC's and Hall's fingerprints were on the microwave. Tiffany Donnell, appellant's seventeen-year-old sister, testifed in December 2003 she lived in the same house as appellant, her mother, her sister, and sometimes Hall. Hall is the father of her youngest child. After midnight on December 31, 2003, Hall arrived at the apartment where she was "hanging out." Hall was "hyper" and had a number of gold coins. He gave her some of the coins, and she used them to buy food. She had never known Hall to have gold coins. Hall told her he saw "her brother beat a punk" on Loop 12. According to Tiffany, a "punk" is a homosexual man. By "her brother," Hall meant appellant. Hall had been trying to put the blame on appellant from "day one." Hall first denied he was at scene and said appellant "gave him the stuff," but later admitted he had a part in the murder. Hall said there were two cars at the scene, Nixon's car and another car. Hall first said he watched the attack from one of the cars, but later said he got out of the car. Although Hall also said he went by himself to steal things from Nixon's apartment, Tiffany knew he said before that both he and appellant went to Nixon's apartment and appellant opened the door with a key. She told the police she had heard her brother killed a homosexual man. She remembers telling the police her mother was trying to get her to lie and say she saw Hall with blood on his clothes early on January 1, 2004. She was not home at that time. Shelia Donnell testified she is appellant's mother. She recognized Nixon's picture as someone who brought appellant home one day. Appellant was not dating Nixon and, to her knowledge, appellant is not homosexual. Hall has lived at her house and, on December 31, 2003, had blood on his shirt. She got the microwave from Hall about three months before she pawned it on March 25, 2004. Hall also had a television. She did not see a television or DVD player in appellant's room and never saw appellant with a DVD player or a television. These were not items that were just around the house. Shameka Donnell testified she is appellant's sister. On December 31, 2003, Hall left about 7:00 p.m. He came back the next morning after it was daylight. He was wearing a blue sweater with blood on it. She woke up her mother because of the blood, and Hall left. Ahearn was recalled and testified he believed appellant, CC, and Hall participated in the murder. The previous Monday, Hall told Ahearn that shortly after the murder, CC took Hall to the locations where CC and appellant committed the offense. Hall took Ahearn to exactly where the body was found and where the car was abandoned. Hall also took Ahearn to another location on a dead-end street where the incident started. Hall said CC told him that appellant arranged to meet Nixon at an intersection near the Zumwalt School close to appellant's mother's house. Hall said CC and appellant beat Nixon at the first location and put him in the trunk of the car. Hall told Ahearn that appellant said "punk's not breaking bread anymore," which meant Nixon was no longer providing money to appellant, and appellant was terminating the relationship. Hall also said appellant told him CC was making a mistake by "passing out shit." Ahearn testified CC gave Nixon's credit cards to Quincy. Legal Sufficiency of the Evidence
In his second issue, appellant argues the evidence is legally insufficient to support the jury's verdict because there is no evidence corroborating appellant's confession, the State failed to carry its burden regarding appellant's self-defense claim, there is no evidence appellant murdered Nixon in the course of committing a robbery, and there is a variance between the State's allegation Nixon was killed with a board and the evidence Nixon was stomped or kicked. Standard of Review
In reviewing the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The standard is meant to give "full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. The standard of review is the same for direct and circumstantial evidence cases. Powell v. State, 194 S.W.3d 503, 506 (Tex.Crim.App. 2006). In a circumstantial evidence case, every fact does not have to point directly and independently to the guilt of the defendant. Id. at 507. Further, the jury is entitled to give probative value to inadmissible hearsay admitted without objection. Tex. R. Evid. 802; Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). It is sufficient if the finding of guilt is warranted by the cumulative force of all the incriminating evidence. Powell, 194 S.W.3d at 506. In conducting a sufficiency review, we cannot deny probative value to any evidence, whether admissible or inadmissible, weighed by the jury in the fact-finding process. Id. at 507; Poindexter, 153 S.W.3d at 406. Corrobation of Appellant's Confession
Appellant first contends the evidence is legally insufficient because there is no evidence corroborating his written confession he murdered Nixon. Contrary to appellant's contention, it is not necessary for evidence to corroborate appellant's confession he killed Nixon. Salazar v. State, 86 S.W.3d 640, 644-45 (Tex.Crim.App. 2002) ( corpus delicti not intended to ensure suspect does not falsely confess to crime that did occur but for which he had no culpability); Herrero v. State, 124 S.W.3d 827, 831 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (identity of perpetrator of crime is not an element of corpus delicti). Rather, there must be some evidence apart from appellant's confession which, "considered alone or in connection with the confession, shows that the crime actually occurred." Salazar, 86 S.W.3d at 645; see Cardenas v. State, 30 S.W.3d 384, 390 (Tex.Crim.App. 2000). The identity of the perpetrator may be established by the confession alone. Gribble v. State, 808 S.W.2d 65, 70-71 (Tex.Crim.App. 1990). The corpus delicti of murder is established by evidence of the death of a human being caused by the criminal act of another. Fisher v. State, 851 S.W.2d 298, 303 (Tex.Crim.App. 1993). Here, a fisherman discovered a human body. Ahearn identifed the victim as Nixon through a grocery store savings card, driver's license records, and identification by friends and relatives. Nixon's photograph from the medical examiner's office was identified at trial by Kermit. Spotswood testified the autopsy report indicated Nixon died as a result of blunt force trauma to the head and the cause of death was homicide. The lacerations on Nixon's head were consistent with being struck by timber such as the boards found by the body and the abandoned automobile. This testimony provides sufficient evidence to establish the corpus delicti of murder. Emery v. State, 881 S.W.2d 702, 705 (Tex.Crim.App. 1994) (State offered independent evidence of corpus delicti of murder by proving identity of body and cause of death was stabbling); Herrero, 124 S.W.3d at 831. Appellant also argues there is no evidence linking him to Nixon's murder. Viewing the evidence in the light most favorable to the verdict, appellant was dating Nixon, but decided to terminate the relationship because Nixon was no longer buying appellant things. Nixon received a call at work on December 31 setting a meeting for that evening. Appellant and CC met Nixon near appellant's mother's house and took him to a dead-end street. Appellant beat Nixon with a stick, and CC stomped and kicked Nixon. Nixon died from head injuries consistent with being beat with a piece of timber. Nixon was put into the truck of his car and dumped at a location on Loop 12. Nixon's blood was in the trunk of the vehicle and on two pieces of timber recovered by the body and by Nixon's abandoned car. Appellant was a possible source of DNA from a stained cloth taken from outside Nixon's car. We conclude a rational fact finder could have found beyond a reasonable doubt that appellant was connected to Nixon's murder. Self-Defense
Appellant next contends the evidence is legally insufficient because the State failed to carry its burden of persuasion on appellant's claim he acted in self-defense. Once the evidence raises the issue of self-defense, the State has the burden of persuasion to disprove the defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). The State is not required to affirmatively produce evidence refuting the claim of self-defense, but is required to prove its case beyond a reasonable doubt. Id. The issue of self-defense is a factual issue to be determined by the jury. Id. at 913-14 On appeal, we determine whether any rational fact finder would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt. Id. at 914. The only evidence of self-defense was appellant's written statement. Many of the statements made by appellant were contradicted by other evidence. Further, Hall told Tiffany he saw appellant beating a "punk" and told Ahearn he saw appellant and CC beating Nixon. Appellant admitted hitting Nixon with a stick, and Nixon's blood was found on two pieces of timbers. The lacerations on Nixon's head were consistent with being beat by these two pieces of wood. The attack on Nixon was brutal. Kermit, Green, and Christian testified Nixon was not violent and never exhibited any aggressive behavior. Green confirmed Nixon would not force himself on anybody. Although appellant raised the issue of self-defense, the State offered evidence contradicting appellant's version of Nixon's murder. The jury, as the fact finder, determined the credibility of the evidence. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient for a rational fact finder to find the essential elements of murder beyond a reasonable doubt and to find beyond a reasonable doubt appellant did not act in self-defense. Murder in the Course of Robbery
Appellant next contends there is no evidence he murdered Nixon in the course of committing a robbery. The evidence is sufficient to prove murder in the course of committing a robbery if the State proves that the robbery occurred immediately after the murder. Cooper v. State, 67 S.W.3d 221, 223-24 (Tex.Crim.App. 2002); McGee v. State, 774 S.W.2d 229, 234 (Tex.Crim.App. 1989). As set out above, there is legally sufficient evidence connecting appellant to Nixon's murder. In his statement, appellant denied robbing Nixon, but indicated CC and Hall might have done so. Nixon's wallet and automobile were missing after the attack. CC gave Quincy Nixon's credit cards on December 31, 2003. Tiffany testified she knew Hall had said he and appellant went to Nixon's apartment, appellant had a key to the apartment, and appellant opened the door. A Bose radio, a microwave, two DVD players, and two televisions were taken from Nixon's apartment prior to the police arriving on January 1, 2004. Three days after the murder, appellant pawned a television. Two weeks later, he pawned a DVD player. Appellant's mother confirmed these were not items appellant had in his room or in the house. Boggess and Hall pawned the radio, and Hall told Ahearn appellant had given it to him. Three months after the murder, appellant's mother pawned a microwave she had owned for approximately three months. She claimed Hall gave her the microwave. We believe a rational person could have concluded appellant committed murder while in the course of robbing or attempting to rob Nixon. Variance Between Allegations and Proof
Appellant finally contends the evidence is legally insufficient because, while the indictment alleges Nixon was beat to death with a board, the evidence showed CC kicked and stomped Nixon to death. Further, Spotswood testified only that Nixon's injuries could be consistent with Nixon being repeatedly struck by the pieces of wood found by Nixon's body and Nixon's car. Appellant admitted hitting Nixon with a stick "a lot of times." CC told Bradley he kicked and stomped Nixon, but did not kill him. While Spotswood testified she could not tell exactly what caused the contusions on Nixon's body, the injuries were consistent with him being struck by the two pieces of wood found by Nixon's body and car. Johnson testified Nixon was a possible contributor to the blood found on both pieces of wood and the statistical chance of finding an unrelated individual whose genetic profile matched the blood was one in 343 quadrillion. The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). It may accept or reject any or all of the testimony of any witness. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). We conclude a rational jury could have found Nixon was beat to death by a board as alleged in the indictment. Having concluded the evidence is legally sufficient to support the verdict, we overrule appellant's second issue. Factual Sufficiency
In his third issue, appellant contends the evidence is factually insufficient to support the jury's verdict. When reviewing a claim of factual insufficiency, we view all the evidence in a neutral light to determine whether a jury's finding of guilt beyond a reasonable doubt is rationally justified by the evidence. 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 the evidence contradicts the jury's verdict or that the verdict seems clearly wrong or manifestly unjust. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.), cert. denied, 128 S. Ct. (2007) (citing Watson, 204 S.W.3d at 417). In examining a factual sufficiency challenge, we are permitted to substitute our judgment for the jury's when considering weight and credibility of the evidence only "to a very limited degree." Id. (citing Watson, 204 S.W.3d at 417) (explaining factual sufficiency jurisprudence still requires appellate court to afford "due deference" to fact finder's determinations). As applicable to this case, a person commits the offense of capital murder if he intentionally causes the death of another while in the course of committing or attempting to commit a robbery. Tex. Pen. Code Ann. § 19.02(b)(1), 19.03(a)(2). The evidence showed appellant met Nixon over an Internet chat line in late 2003. Appellant claimed they had limited contact and discussed Nixon representing appellant in a modeling career. However, Green testified Nixon was dating "Aundre" and Christian identified appellant as the person Nixon was dating. Although there was conflicting testimony about whether Nixon or appellant scheduled the December 31 meeting, it is undisputed Nixon and appellant were together that day. Appellant claims the purpose of the meeting was to sign a modeling contract and to take photographs of appellant. However, there was no evidence of a contract. Hall told Ahearn that appellant told him appellant was terminating the relationship because Nixon was no longer buying him things. Hall also told Ahearn that CC said appellant and CC met Nixon near appellant's mother's house. Appellant admits he hit Nixon with a stick "a lot of times," but claims it was in self-defense. Appellant claims he was alone with Nixon during the altercation and then called CC and Hall on Nixon's cell phone to come get appellant. However, Hall told Ahearn he witnessed appellant and CC beating Nixon at the end of a dead-end road, and CC admitted to Bradley he stomped and kicked Nixon. Hall also told Tiffany he saw appellant "beat a punk." Further, there is no record of a telephone call to appellant's mother's house on Nixon's cell phone records. Nixon's blood was found on two pieces of timber discovered by the body and by the abandoned car. The lacerations on Nixon's skull were consistent with being beat with these two pieces of wood. Appellant was a possible contributor of DNA on the outside of Nixon's vehicle. Hall told Ahearn that Nixon was placed in the trunk of his car and the body was abandoned on Loop 12. Nixon's blood was found in the trunk of the vehicle. Shameka and Shelia testified Hall had blood on his shirt on January 1, 2004. Nixon's wallet and car were stolen. CC had Nixon's credit cards late on December 31, 2003, and Quincy and CC used the cards at gasoline stations. Quincy used the cards at a Wal-Mart the next day, and Griffin used one of the cards to pay her cable bill. CC told Quincy it was good he got rid of the cards "because the guy was dead or something." Hall told Ahearn that appellant said CC was making a mistake by handing out the cards. A Bose radio, a microwave, two DVD players, and two televisions were taken from Nixon's apartment before the police arrived on January 1, 2004. There was no forced entry into the apartment, and Tiffany knows Hall at one point said appellant had a key to the apartment and opened the door. Three days after the murder, appellant pawned a television. He pawned a DVD player two weeks after the murder. Appellant's mother was unaware appellant had a television or a DVD player. Boggess and Hall pawned the radio, and Hall told police appellant gave it to him. In March 2004, appellant's mother pawned a microwave she had owned for approximately three months. Appellant's mother claimed Hall gave her the microwave, and Hall's and CC's fingerprints were on the microwave. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude the evidence is factually sufficient to support the conviction. Therefore, we overrule appellant's third issue. Appellant's Statement
In his first issue, appellant argues the trial court erred in admitting his written statement because it was the result of a custodial interrogation and appellant was not timely provided with the Miranda warnings. Applicable Facts
Only Ahearn testified at the hearing held outside the presence of the jury regarding the admissibility of appellant's statement. He testified appellant was arrested and brought to the police station for questioning on April 2, 2004 at 9:15 p.m. Ahearn had obtained a warrant for appellant's arrest and believed appellant was one of the individuals who murdered Nixon. When appellant arrived at the police station, Ahearn asked him if he knew why he was there. Appellant said he thought he was under arrest on an outstanding warrant from a prior incident. Ahearn briefly told appellant he was under arrest for Nixon's murder and that Ahearn wanted to talk to him. Ahearn then left the interview room to retrieve some paperwork. Ahearn returned and started the interview at 9:50 p.m. For twenty to twenty-five minutes, Ahearn talked to appellant about why he was there and a "little bit" about appellant and his family. Ahearn went over a witness contact sheet with appellant to obtain personal information. They talked about appellant's employment and associates. Ahearn testified that he did not discuss the case with appellant prior to giving the Miranda warnings. At 10:17 p.m., Ahearn read appellant his Miranda rights and told appellant he was a suspect in the murder. Appellant initially denied knowing Nixon and denied he was involved in the murder. Ahearn then told appellant they had discovered the use of Nixon's credit cards and that he had talked to CC. He also told appellant he had received information from Hall and had recovered some of Nixon's property from a pawn shop. Ahearn began taking appellant's statement at 11:45 p.m. Prior to taking the statement, Ahearn again advised appellant of his rights. Appellant indicated he understood and was willing to waive those rights. Appellant asked Ahearn to write the statement as appellant dictated it. Ahearn then read the statement to appellant, and appellant made some corrections to the statement. Standard of Review
We will consider appellant's objection to the admission of his written statement as an oral motion to suppress. We review the trial court's ruling on a motion to suppress for an abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We give almost total deference to the trial court's determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id.; see Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). When the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court's ruling. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000). We sustain the trial court's ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App. 2003). Applicable Law
Under Miranda, the State may not use statements, exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U. S. 436, 444 (1966); Wilkerson v. State, 173 S.W.3d 521, 526 (Tex.Crim.App. 2005). Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444; Wilkerson, 173 S.W.3d at 526. The State does not dispute appellant was in custody. The question is whether the initial twenty to twenty-five minutes of the interview prior to Ahearn reading appellant his rights was custodial interrogation. Appellant argues this case falls under the "question first" technique prohibited by Missouri v. Seibert, 542 U.S. 600 (2004). However, the technique used in Seibert was to question the defendant until a confession was obtained; read the defendant his Miranda rights; and then obtain a second confession consistent with the first one. Id. at 609-10. This technique essentially renders " Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed." Id. at 611. In this case, the uncontroverted evidence shows that, although appellant made a general statement about a prior incident, there was no attempt by Ahearn to obtain a confession from appellant prior to reading appellant his Miranda rights. Accordingly, we conclude Seibert is not dispositive in this case. The State argues the interview prior to the reading of the Miranda rights was not custodial interrogation. We agree. Not all post-arrest police questioning constitutes an interrogation. Jones v. State, 795 S.W.2d 171, 174 (Tex.Crim.App. 1990); Ruth v. State, 167 S.W.3d 560, 571 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Routine questions incident to booking such as the defendant's name, address, height, weight, eye color, date of birth, and current age do not meet the definition of custodial interrogation. Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990); Cross v. State, 144 S.W.3d 521, 524 n. 5 (Tex.Crim.App. 2004); Jones, 795 S.W.2d at 174 and n. 3; Ruth, 167 S.W.3d at 571 (general and routine questions not interrogation). Ahearn testified that prior to reading appellant his Miranda rights, he questioned appellant about the information needed on the contact sheet and general information such as appellant's employer, family, and friends. Ahearn testified he did not question appellant regarding Nixon's murder until after he gave appellant the Miranda warnings. We conclude the interview prior to appellant receiving his rights involved general background information and routine questions relating to booking and was not custodial interrogation. The trial court did not abuse its discretion in admitting appellant's statement. Therefore, we overrule appellant's first issue. Jury Charge Error
In his fourth issue, appellant contends the trial court erred by failing to instruct the jury to acquit appellant if it had a reasonable doubt regarding whether he acted in self-defense. When reviewing a complaint about the charge, we determine if error actually exists in the charge and, if we find error, whether it harmed appellant. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). Charge Error
Section 2.03(d) of the penal code requires the trial court to instruct the jury it must acquit the defendant if it has reasonable doubt on the existence of a defensive issue. Tex. Pen. Code Ann. § 2.03(d) (Vernon 2003). Although the trial court instructed the jury to acquit appellant of both capital murder and murder if it found appellant was acting in self-defense, the charge did not instruct the jury to acquit appellant if it had a reasonable doubt about whether appellant was acting in self-defense. The trial court erred by failing to include the reasonable doubt instruction. See Tex. Pen. Code Ann. § 2.03(d); Barrera v. State, 982 S.W.2d 415, 417 (Tex.Crim.App. 1998); Russell v. State, 834 S.W.2d 79, 82 (Tex.App.-Dallas 1992, pet. ref'd). Harm to Appellant
The failure to include in the charge a reasonable doubt instruction as to self-defense is subject to a harm analysis under Almanza. Barrera, 982 S.W.2d at 417. Because appellant did not object to the charge, we will reverse for the charge error only if the record shows egregious harm to appellant. Olivas v. State, 202 S.W.3d 137, 143 (Tex.Crim.App. 2006) (citing Almanza, 686 S.W.2d at 171). To cause egregious harm, the error must affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Almanza, 686 S.W.2d at 172. We review the entire record to determine if appellant suffered actual, not theoretical, harm. Id. at 171. We consider the entire jury charge; the state of the evidence, including the contested issues and the weight of the probative evidence; arguments of counsel; and any other relevant information revealed by the record of the trial as a whole. Olivas, 202 S.W.3d at 144. 1. Entire Jury Charge
We first review the jury charge as a whole to determine the effect the erroneous instruction may have had on the jury. The jury was generally instructed (1) the burden of proof was on the State; (2) each element of the offense had to be proved beyond a reasonable doubt; and (3) appellant was not required to prove his innocence or to produce any evidence. In the application paragraphs, the trial court instructed the jury it must acquit appellant of capital murder and murder unless it found all elements of the offense beyond a reasonable doubt or if it had a reasonable doubt appellant committed the offense. The jury was then instructed "[i]f you should find from the evidence that [appellant] is guilty of neither capital murder nor murder, or if you have a reasonable doubt thereof, you will find [appellant] not guilty." Finally, the trial court, after explaining the law of self-defense, instructed the jury: If you have found [appellant] guilty of either capital murder or murder but you find from the evidence that [appellant's] actions which caused either capital murder or murder were taken in self defense as previously defined you will find [appellant] not guilty. The State's burden to prove its case beyond a reasonable doubt was repeated throughout the instructions in the charge. There was no mention of any other burden of proof or that appellant might have some burden of proof on any issue. The jury is presumed to have acted rationally and to have followed the trial court's instructions. Resendiz v. State, 112 S.W.3d 541, 546 (Tex.Crim.App. 2003); Richardson v. State, 879 S.W.2d 874, 882 (Tex.Crim.App. 1993). We conclude the charge as a whole adequately conveyed to the jury it was required to acquit appellant if it had a reasonable doubt the State failed to prove all elements of the offense. 2. State of the Evidence
We next look at the state of the evidence and the contested issues. The only evidence of self-defense was appellant's written statement, which appellant attempted to suppress. However, several events set out in appellant's statement were contradicted by other evidence. There was also evidence Nixon was not a violent or aggressive man. Accordingly, this factor is not determinative. 3. Arguments of Counsel
We next consider the arguments of counsel. The jury was charged on capital murder, murder, robbery, and theft. The State's argument initially focused on the possible verdicts set out in the charge. The State, without discussing the burden of proof, briefly argued the general law of self-defense. After addressing the inconsistencies between appellant's written statement and the physical evidence, the State argued appellant's claim of self-defense was "so ridiculous that you cannot even consider that" due to the "sheer morbid brutality in this case." Appellant argued the State had not proved capital murder because the evidence did not support a planned robbery or a planned, intentional killing. Appellant pointed out the instruction in the charge telling the jury that if it found beyond a reasonable doubt appellant was guilty of either capital murder or murder, but had a reasonable doubt as to which offense appellant was guilty, it was required to resolve that doubt in appellant's favor and find appellant guilty of murder. Appellant then argued: The State's shown you-all this, and I still don't think they've shown you a capital murder case. Planned, premeditated, it's just not there. It's just not there. I don't know whether [appellant] used self-defense. That's what he says in the statement. I don't know. I wasn't there. But for you-all to find that he planned this thing and intentionally took him and killed him, that's not what the evidence shows. * * *
I think if you think about is, you've got to find there's a reasonable doubt. You absolutely have to find there's a reasonable doubt as to whether [appellant] is guilty of the offense of capital murder. The other things, I don't know. That's for you-all to decide. Appellant then argued nothing in his statement proved a planned intentional killing and the evidence was consistent with a fight taking place between appellant and Nixon and then Hall and CC deciding to take advantage of the situation by robbing Nixon. Appellant concluded: I'm not trying to beat a dead horse, folks — but they haven't proven intentional killing, they haven't proved a planned robbery. Maybe they've proven some other things, but they haven't proven capital murder. Neither side addressed the burden of proof on self-defense in their closing arguments. The State focused on the credibility of appellant's statement. The defense spent little time on self-defense, instead choosing to argue appellant was not guilty of capital murder. Nothing in the closing arguments indicated to the jury it could find appellant guilty on anything other than beyond a reasonable doubt. 4. Any Other Relevant Information
Finally, we consider any other relevant information. During deliberations, the jury requested appellant's statement and "the pawn ticket." There were three pawn tickets introduced into evidence — one in appellant's mother's name and two in appellant's name. There is no indication in the record regarding what information, if any, was provided to the jury in response to this request. The jury made no additional requests, and there is nothing in the record to indicate the jury was confused about the burden of proof or that the State was required to prove every element of the offense beyond a reasonable doubt. Application
Although appellant's written statement raised the issue of self-defense, appellant did not rely strongly on that defense in his closing argument. Rather, appellant's counsel argued there was no evidence of an intentional killing or a planned robbery and appellant should, therefore, be acquitted of capital murder. Further, appellant's self-defense claim was controverted by the State. The jury's decision turned on credibility and in our view was not influenced by the mistake in the charge. See Parsons v. State, 191 S.W.3d 862, 864 (Tex.App.-Waco 2006, pet. ref'd). Finally, the record does not reflect the jury was confused about the applicable burden of proof or about the State's burden to prove all elements of its case beyond a reasonable doubt. Applying the individual Almanza factors to a review of the record in this case, we conclude appellant has failed to show egregious harm. Accordingly, we overrule appellant's fourth issue. Motion for Mistrial
In his fifth issue, appellant contends the trial court erred by denying his motion for mistrial based on Hickson testifing Nixon was dating someone named "Aundre." Applicable Facts
During direct examination, the State asked Hickson if Nixon was dating anyone in November and December 2003. After Hickson responded affirmatively, the State asked for the name of the individual. Appellant objected the question called for hearsay because it could be based only on a statement made by Nixon. Although the record does not contain a ruling on the objection, after a bench conference, the State asked a different question without obtaining an answer from Hickson. Several questions later, the State asked Hickson if she knew how Nixon met the person he was dating. Hickson responded "[h]e had mentioned to me that he was dialing a chat line, and he met — the name he used was Aundre on the chat line." Appellant again objected, and the trial court sustained the objection. At appellant's request, the trial court instructed the jury to "[d]isregard the part of the answer." The trial court denied appellant's motion for a mistrial. Standard of Review
We review the trial court's refusal to grant a mistrial under an abuse of discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004); Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). We must affirm the trial court's decision if it is within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim App. 2004). A mistrial due to an improper question is required 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.'" Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003) (quoting Wood, 18 S.W.3d at 648). Generally, an instruction to disregard cures any prejudice resulting from an improper question or a nonresponsive answer. Id.; Ridyolph v. State, 545 S.W.2d 784, 787 (Tex.Crim.App. 1977). Application
Appellant claims the instruction to disregard was insufficient because it did not instruct the jury as to which part of the anwer it should disregard. Further, the answer was incriminating because it linked appellant to Nixon and could not be disregarded by the jury. Hickson's testimony was cumulative of other evidence in the case. Appellant admitted he met Nixon over a chat line and talked to and spent time with Nixon in late 2003. Later in her testimony, Hickson testified, without objection, that Nixon was dating someone he met over the Internet. Christian confirmed Nixon met someone on a chat line. Green testified he spoke over the telephone with the person Nixon was dating and that person said his name was "Aundre." Christian met the person Nixon was dating at Nixon's apartment and identified appellant as that person. Appellant's mother testified she recognized Nixon's picture because Nixon brought appellant home one day. The extent of other evidence appellant knew Nixon and met Nixon over the Internet precludes any harm from Hickson's testimony. Estrada v. State, 945 S.W.2d 271, 274 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Accordingly, we overrule appellant's fifth issue. Conclusion
We conclude the evidence is legally and factually sufficient to support the jury's verdict. The trial court did not err in admitting appellant's written statement or in denying appellant's motion for a mistrial. The trial court erred by failing to include in the charge a reasonable doubt instruction as to self-defense, but the error did not egregiously harm appellant. Therefore, we affirm appellant's conviction.