Opinion
No. 4-04-00059-CR
Delivered and Filed: August 3, 2005. DO NOT PUBLISH.
Appeal from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-1121, Honorable Sharon MacRae, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Emanuel Delmar Douglas appeals the trial court's judgment convicting him of aggravated robbery and sentencing him to fifty-five years confinement. We affirm. 1. Relying upon Gonzales v. State, 38 Tex. Crim. 62, 41 S.W. 605 (1897), Douglas first contends the trial court erred in denying his pro se motion for a new trial in his absence. We disagree. As Douglas recognizes, the right to be present can be waived. See id. at 605. And the right is deemed waived unless the record establishes that the defendant "desired to exercise [his] right to be present or that [he] was deprived of such right." Johnson v. State, 163 Tex. Crim. 101, 103, 289 S.W.2d 249, 251 (1956); see also, e.g., Lacy v. State, 374 S.W.2d 244, 245 (Tex.Crim.App. 1963) ("There is no showing that appellant desired to be present or was denied such right when the motion was presented and acted upon by the court."). "The mere fact that appellant was in custody did not prevent his attendance. Trial counsel could have requested a bench warrant." Coons v. State, 758 S.W.2d. 330, 339 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd). Here the record does not establish that Douglas desired to exercise his right to be present when his motion for new trial was heard and acted upon; indeed, he did not even ask for a hearing on his motion, much less the right to be present at a hearing. 2. Douglas next argues one of his trial counsel rendered ineffective assistance of counsel by actively representing conflicting interests, i.e., Douglas's interest in his freedom while out of jail on bond and his trial counsel's own interest in his role as the surety on Douglas's bond; and harm must be presumed. We again disagree. Because Douglas did not object in the trial court to his trial counsel acting as both his attorney and his surety, he "must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App. 1997). Douglas does not even argue that the alleged conflict of interest had an adverse effect on his attorney's performance. 3. Douglas next argues the trial court erred in denying his motion for a mistrial after Detective Garibay, when asked whether he showed a photo line up to a witness, testified nonresponsively that the witness was in "fear of [Douglas] retaliating, where he had a reputation of shooting people and rumor had it [he] had killed one person." We again disagree. Declaring a mistrial is an extreme remedy appropriate only when "an objectionable event . . . is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant." Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). Accordingly, a trial court's prompt instruction to disregard will ordinarily cure the error associated with improper questions and answers, even those regarding extraneous offenses. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). So it is here. Garibay's testimony was "uninvited and unembellished"; the trial court sustained Douglas's objection to the testimony and promptly instructed the jury to disregard it; and this aspect of Garibay's testimony was not mentioned again. See Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992) (holding trial court's prompt instruction to disregard cured error in admitting testimony that appellant had prior felony conviction when testimony was "uninvited and unembellished" and not mentioned during the remainder of the trial), cert. denied, 508 U.S. 918 (1993). This is particularly true in light of the overwhelming evidence of Douglas's guilt, as set forth below. See Paster v. State, 701 S.W.2d 843, 848 (Tex.Crim.App. 1985) (holding trial court's prompt instruction to disregard "rendered the testimony harmless, especially in light of the overwhelming evidence of appellant's guilt"), cert. denied, 475 U.S. 1031 (1986). 4. Douglas next argues the evidence is legally and factually insufficient to establish that he placed the complainant, Thomas Moses, in fear of bodily injury or that Douglas was in the course of committing a theft. We again disagree. Douglas was indicted for the aggravated robbery of Thomas Moses, the assistant manager of the Quality Pawn Shop. According to Moses, he knew Douglas was going to rob him when he saw Douglas pause at the entrance to the pawnshop and, on a bright, warm, and sunny day, put on a hood. Suspicious, Moses took out a gun. As Douglas entered the pawn shop, he said "Drop, Pops, you're dead." When Moses displayed his gun, Douglas exclaimed "Oh, shit!" and then "pulled his gun up and started firing and turned and started going out the door, continuing to fire until he emptied his clip and out the door." Moses testified that one of the bullets passed within a foot of him; and he felt threatened when Douglas pointed the gun at him. Moses' testimony was echoed by the pawnshop's clerk, Teresa Cook. Douglas's displaying his gun and pointing it at Moses, in and of itself, constituted a threat of the required imminent harm necessary to prove this element of aggravated robbery. See Robinson v. State, 596 S.W.2d 130, 133 n. 7 (Tex.Crim.App. 1980). And entering the pawnshop — a cash business with registers containing approximately $500.00 to $900.00 — with a gun in one hand and wearing a hood over his head on a warm and sunny day, commanding Moses to "drop," aiming his gun at Moses, discharging all the bullets in the gun, and fleeing the pawnshop constituted sufficient evidence from which a jury could reasonably infer that Douglas was in the course of committing theft, even in the absence of a specific demand for or removal of money or property. See, e.g., Autry v. State, 626 S.W.2d 758, 762 (Tex.Crim.App.) (holding actual commission of theft is not prerequisite to commission of robbery), cert. denied, 459 U.S. 882 (1982); Johnson v. State, 541 S.W.2d 185, 187 (Tex.Crim.App. 1976) (holding "[a] verbal demand is not the talisman of an intent to steal"; "[s]uch intent may also be inferred from actions or conduct"). We therefore hold the evidence is legally sufficient to permit a rational fact finder to determine beyond a reasonable doubt that Douglas placed Moses in fear of bodily injury while in the course of committing theft; and, viewing all the evidence in a neutral light, the State's evidence is neither so obviously weak nor so greatly outweighed by contrary proof as to undermine confidence in the jury's determination. See Sells v. State, 121 S.W.3d 748, 753-54 (Tex.Crim.App.) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (legal sufficiency standard), cert. denied, 540 U.S. 986 (2003); Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004) (factual sufficiency standard). 5. Douglas next argues the evidence is insufficient to support the jury's enhancement finding of a previous felony conviction in Illinois because the State failed to show he waived indictment. We disagree. In a collateral attack such as this, the burden is on the defendant to show the prior conviction is void. See West v. State, 720 S.W.2d 511, 519 (Tex.Crim.App. 1986), cert. denied, 481 U.S. 1072 (1987). 6. Finally, Douglas argues the trial court erred in admitting two Illinois penitentiary packets because they contain "improper and invalid certifications" since the "space for filling in the name of the judge" of the convicting court "is blank." We disagree. As Douglas recognizes, because neither party attempted to prove up Illinois law, we presume it is the same as Texas law. Smith v. State, 683 S.W.2d 393, 406 (Tex.Crim.App. 1984). Until 1991, Texas law required that "the copy of the judgment and sentence in the pen packet, in order to be admissible as self-authenticated document(s), . . . reflect that the original copy received by TDCJID was certified by the district clerk of the convicting court." Reed v. State, 811 S.W.2d 582, 583 (Tex.Crim.App. 1991) (citing Dingler v. State, 768 S.W.2d 305, 306 (Tex.Crim.App. 1989)). In 1991, however, the court overruled Dingler. Reed, 811 S.W.2d at 584. Since Reed, a pen packet is admissible if it complies with either Rule 901 or, for self-authenticating documents, Rule 902. Id. at 586. If the State opts to proceed under Rule 901, as it did here, all that is required is "extrinsic evidence that the matter in question is what its proponent claims." Id. Indeed, this point is so well settled that it is properly the subject of a memorandum opinion. See, e.g., Carkin v. State, No. 04-01-00582-CR, 2002 WL 1285160, at *1 (Tex.App.-San Antonio 2002, no pet.) (mem. op.). Douglas does not argue this general requirement was not met. Rather, in support of his argument, Douglas cites Mitchell v. State, 669 S.W.2d 349, 350-51 (Tex.App.-Houston [14th Dist.] 1984, no pet.). However, Mitchell preceded Reed and does not correctly reflect Texas law. Accordingly, we overrule Douglas's seventh and final point of error. The trial court's judgment is affirmed.
After Douglas violated a condition of his release on bond, his trial counsel surety filed his Affidavit of Surety to Surrender seeking to be relieved as the surety and surrendering Douglas into the sheriff's custody.