Opinion
No. 08-99-00063-CR.
August 8, 2001. DO NOT PUBLISH.
Appeal from the 243rd Judicial District Court of El Paso County, Texas (Tc# 980D06589).
Before Panel No. 4: BARAJAS, C.J., LARSEN, and McCLURE, JJ.
OPINION
This is an appeal from a conviction for burglary of a habitation. The jury found Appellant guilty and made an affirmative deadly weapon finding. Appellant was sentenced to thirty-two (32) years' confinement in the Institutional Division of the Texas Department of Criminal Justice. For the reasons stated, we affirm.
I. SUMMARY OF THE EVIDENCE
Appellant, Lloyd Drake, was indicted for the offense of burglary of a habitation with intent to commit aggravated assault. The victim testified that she was awakened around 3 a.m. by her barking dog. She walked through her house, looked out the doors, checked several rooms, and went outside to latch a gate that was banging. She then went back to bed and was trying to go back to sleep when her cat stood up and began hissing and her dog started barking again. She stated that she knew someone was in the house and that she was very frightened. She grabbed a baseball bat and looked down her hallway. She saw someone standing there and asked, "Who are you? What are you doing in my house?" Before she knew what was happening, Appellant was in her face and she started swinging the bat. The victim was struck several times with a flashlight and she dropped her bat. She was hit in the face and Appellant pushed her head into a glass frame, causing the glass to shatter. She tried to fight back and was able to dial 9-1-1, but Appellant continued to hit her. She testified that she feared for her life. She was finally able to flee and she ran to her neighbor's house. She sustained numerous injuries, including a broken arm and a severe laceration to her head, which required fifty-seven (57) staples and a series of stitches.II. DISCUSSION
Appellant presents six issues on appeal. In Issue No. One, Appellant asserts that the trial court erred in denying his motion to suppress. In Issue No. Two, Appellant attacks the sufficiency of the evidence. In Issue Nos. Three, Four, and Five, Appellant complains of error in excluding or admitting evidence. In Issue No. Six, Appellant asserts that the State made improper jury argument. We begin with the sufficiency issue.A. Legal Sufficiency Standard of Review
In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 156-57 (Tex.Crim.App. 1991); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex.App.-El Paso 1997, no pet.). We do not resolve conflicts of fact or assign credibility to witnesses, as it was the function of the trier of fact to accept or reject any, part, or all of any witness's testimony. See Lucero v. State, 915 S.W.2d 612, 614 (Tex.App.-El Paso 1996, pet. ref'd). Our duty, rather, is to determine only if the explicit and implicit findings of the trier of fact are rational by viewing all the evidence in a light most favorable to the verdict. See id. In doing so, we resolved any inconsistencies in the evidence in favor of the verdict. See id. In Issue No. Two, Appellant argues that the evidence was legally insufficient to support the judgment of guilt regarding the elements of deadly weapon and serious bodily injury. Specifically, Appellant argues that the State did not offer expert testimony to prove that the flashlight was a deadly weapon and that the complainant suffered serious bodily injury. The State maintains that expert testimony regarding the nature of the object used to inflict injuries and the severity of those injuries is not required. We agree. See Denham v. State, 574 S.W.2d 129, 130-31 (Tex.Crim.App. 1978). When determining whether a weapon is "deadly," the jury may consider the presence and severity of any wounds. See Williams v. State, 477 S.W.2d 24, 25 (Tex.Crim.App. 1972); Jackson v. State, 668 S.W.2d 723, 725 (Tex.App.-Houston [14th Dist.] 1983, pet. ref'd). Other factors are the use or intended use of the weapon, its size and shape, and its capacity to produce death or serious bodily injury. See Denham, 574 S.W.2d at 130; Jackson, 668 S.W.2d at 725; see also Granger v. State, 722 S.W.2d 175, 177 (Tex.App.-Beaumont 1986, pet. ref'd). Further, testimony from the victim that she feared for her life can also give a weapon "deadly" characteristics. See Denham, 574 S.W.2d at 131. A deadly weapon is defined as:(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.TEX. PENAL CODE ANN. § 1.07(a)(17)(A)(B) (Vernon 1994). A serious bodily injury is defined as "[B]odily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." TEX. PENAL CODE ANN. § 1.07(a)(46) (Vernon 1994). Since a flashlight is not a deadly weapon per se, the State was required to prove that the flashlight was capable of causing death or serious bodily injury in the manner of its use by Appellant. Officer Jesus Payan Jr., the crime scene technician, testified that the blood-stained flashlight was found in Appellant's car. Detective Joseph Valle testified that a flashlight used to hit the head or body could cause death or serious bodily injury. The jury also heard testimony regarding the severity of the victim's injuries and saw pictures of the injuries, including her broken arm and the laceration to her head which required fifty-seven (57) staples. Finally, the jury heard testimony from the victim that she feared for her life. Viewing all of the evidence in the light most favorable to the verdict, we find there is sufficient evidence to support the jury's finding that the flashlight was a deadly weapon and that it was used to cause serious bodily injury. Issue No. Two is overruled.
B. Abuse of Discretion Standard of Review
In reviewing a trial court's ruling for an abuse of discretion, this Court views the evidence in the light most favorable to the trial court's ruling. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Davis v. State, 829 S.W.2d 218, 220 (Tex.Crim.App. 1992). A trial court has broad discretion in determining the admissibility of evidence, and we will not reverse absent a clear abuse of discretion. See Allridge v. State, 850 S.W.2d 471, 472 (Tex.Crim.App. 1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68, 62 U.S.L.W. 3245 (1993). On a motion to suppress evidence, the trial judge is the sole and exclusive trier of fact and judge of the credibility of witnesses, including the weight to be given their testimony. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990); Cannon v. State, 691 S.W.2d 664 (Tex.Crim.App. 1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986); Laca v. State, 893 S.W.2d 171, 177 (Tex.App.-El Paso 1995, pet. ref'd); Lee v. State, 893 S.W.2d 80, 84 (Tex.App.-El Paso 1994, no pet.); Chavarria v. State, 876 S.W.2d 388, 391 (Tex.App.-El Paso 1994, no pet.). In that regard, the trial court is free to believe or disbelieve the testimony of each of the State's witnesses as well as the evidence of the accused, if any. This Court must view the record evidence and all reasonable inferences therefrom in the light most favorable to the trial court's ruling. See Romero, 800 S.W.2d at 543. We dare not engage in our own factual review, but merely decide whether or not the trial judge's findings of fact are supported by the record. If the findings are supported by the record, we are not at liberty to disturb them. Thus, on review, we only address the question of whether the trial court improperly applied established law to the facts. See Romero, 800 S.W.2d at 543; Laca, 893 S.W.2d at 177; Lee, 893 S.W.2d at 84. Should the trial judge's determination be correct on any theory of law applicable to the case, it will be sustained. See Romero, 800 S.W.2d at 543; Laca, 893 S.W.2d at 177; Lee, 893 S.W.2d at 84. This principle holds true even if the trial court should give the wrong reason for its decision, especially when that decision concerns the admission of evidence. See Romero, 800 S.W.2d at 543; Dugard v. State, 688 S.W.2d 524 (Tex.Crim.App. 1985).1. Motion to Suppress
In Issue No. One, Appellant asserts that the trial court erred in denying his motion to suppress. Specifically, Appellant argues that there was no reasonable suspicion or probable cause for his arrest and that the evidence obtained as a result should have been suppressed. The State maintains that the facts and circumstances surrounding Appellant's arrest were more than sufficient to find probable cause. We agree. The State has the burden to prove the existence of probable cause to justify a warrantless arrest or search. See Torres v. State, 868 S.W.2d 798, 801 (Tex.Crim.App. 1993). In Texas, the courts look at the "totality of the circumstances" for determining probable cause for a warrantless search and seizure. See id. Probable cause exists where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that a particular person has committed or is committing an offense. See Torres, 868 S.W.2d at 801; Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App. 1991); Woodward v. State, 668 S.W.2d 337, 344 (Tex.Crim.App. 1982) (op. on reh'g), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985). In reviewing a warrantless arrest to determine the existence of probable cause, we look to the facts known to the officers at the time of the arrest. See Torres, 868 S.W.2d at 801. At the suppression hearing, Officer Martin Moncada testified that on July 6, 1998, he was called to the scene of a burglary. When he arrived at the scene, he witnessed the victim being escorted away by EMS. Officer Moncada stated that she had injuries to her head and face. He learned from officers at the scene that she had been assaulted with a flashlight by someone described as a Hispanic male wearing glasses, and he had broken into her house and fled the scene. While he was there, several witnesses pointed to a car that was driving through the area and told him that it was the same car that was at the scene earlier. The car was described as a golden-yellowish 1980's model car. Officer Moncada pursued the car and located it a block from the scene. Since it matched the description given by the witnesses, he exited his patrol car, approached the vehicle, and found Appellant hiding inside. He stated that the person in the car matched the description given by the witnesses. Officer Moncada also noticed a bloody flashlight on the front seat next to Appellant. When he ordered Appellant out of the vehicle, he noticed bloodstains on Appellant's clothing. Appellant was then placed under arrest. In viewing the evidence and all reasonable inferences therefrom in the light most favorable to the trial court's ruling, we find that the trial court did not abuse its discretion in denying Appellant's motion to suppress. The facts known to Officer Moncada at the time of the arrest were sufficient to establish probable cause. Issue No. One is overruled.2. Exclusion and Admission of Evidence
In Issue No. Three, Appellant complains that the trial court erred in excluding proper impeachment evidence. Specifically, Appellant complains that the trial court erred in excluding the testimony of Officer Christopher Stephen McGill that the investigation of the case was poor. He argues that the officer's opinion of the investigation would have assisted the jury in its determination as to whether Appellant actually committed the offense. Officer McGill was a witness for the State. His testimony regarded his role as a crime scene officer in the investigation of the offense. On cross-examination, Officer McGill was questioned about the investigation performed by another officer. The following exchange occurred:Defense Counsel: You said that one of the purposes that Crime Scene Units are dispatched is to collect all pertinent evidence?
Officer McGill: Yes, sir.
Defense Counsel: And do I take it that all pertinent evidence was not collected by the first attempt?
Officer McGill: No, sir.
Defense Counsel: To your knowledge, what evidence had not been discovered by the first attempt?
Officer McGill: Basically, the bat and the picture.
Defense Counsel: What about the underwear and the tennis shoes?
Officer McGill: I wouldn't have any knowledge of that, sir. It was shown me by the detective at the scene.
Defense Counsel: Is it your opinion that the detective that had previously investigated the scene had not done a complete and thorough job?
Prosecutor: Objection. Calls for speculation.
The Court: I'll sustain that objection.
Defense Counsel: Were are you able to locate evidence that had not been located by the previous investigator?
Officer McGill: Yes, sir.When a party complains that a trial court erred by denying admission of evidence, the party is required to provide that evidence for our review through a bill of exception or some similar method. Appellant did not make either a formal or informal bill of exception, and did not attempt to make an offer of proof reflecting what Officer McGill would have testified to. Accordingly, error was not preserved for review. See Love v. State, 861 S.W.2d 899 (Tex.Crim.App. 1993); Tatum v. State, 798 S.W.2d 569 (Tex.Crim.App. 1990); see also TEX. R. EVID. 103; TEX. R. APP. P. 33.1, 33.2. Issue No. Three is overruled. In Issue No. Four, Appellant argues that the trial court erred in admitting improper punishment evidence. Appellant complains that the trial court erred in admitting the testimony of the complainant's boyfriend, Aaron Kravetz, that he had missed several days of work while he cared for the victim following the attack and his business suffered as a result. Appellant objected, claiming that the testimony was irrelevant. The trial court overruled his objection. Appellant now argues that admitting the testimony was error because it allowed the jury to assess punishment based on an injury to a complainant not alleged in the indictment. The State argues that Appellant's complaint on appeal does not comport with his trial objection and thus the issue is waived. We agree. To preserve error, the complaint must be made to the trial court by a timely request, objection, or motion that states the grounds for the ruling that the complaining party seeks from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. See TEX. R. APP. P. 33.1(a)(1)(A). Moreover, the complaint on appeal must match the complaint raised in the trial court. See Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.), cert. denied, 502 U.S. 870, 112 S.Ct. 202, 116 L.Ed.2d 162, 60 U.S.L.W. 3263 (1991). Since Appellant's complaint on appeal does not comport with his trial objection, Appellant has waived his contention on appeal. Accordingly, Issue No. Four is overruled. In Issue No. Five, Appellant asserts that the trial court erred in admitting evidence of an extraneous offense because the State had not provided notice to the defense. Specifically, Appellant contends that the trial court erred by admitting the testimony of Appellant's mother. During the punishment phase, Appellant called his mother as a character witness. She testified that she had a very good relationship with Appellant. On cross-examination, she was asked if Appellant had ever assaulted her. She responded, "Not physically." Appellant objected, arguing that he had not been provided notice under Article 37.07 of the Code of Criminal Procedure. The trial court overruled his objection, reasoning that the questioning was being used to impeach Appellant's mother's statement that they had "a very good relationship," and thus the notice rules were inapplicable. The State then proceeded to ask Appellant's mother about his assaults on her. Appellant's mother continued to deny that the assaults had occurred. Article 37.07 section 3(g) provides that if a defendant makes a timely request to the State for notice of its intent to introduce evidence of extraneous offenses, the State is required to provide that information. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (Vernon Supp. 2001). The article further provides that notice of intent to introduce such evidence "shall be given in the same manner required by Rule 404(b), Texas Rules of Criminal Evidence." See id. Rule 404(b) provides that notice must be "given in advance of trial of intent to introduce in the State's case-in-chief. . . ." TEX. R. EVID. 404(b). Rule 404(b) does not govern the admissibility of character evidence at the punishment stage of trial. See Rojas v. State, 986 S.W.2d 241, 251 (Tex.Crim.App. 1998); Vuong v. State, 830 S.W.2d 929, 942 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533, 61 U.S.L.W. 3400 (1992). Accordingly, Issue No. Five is overruled.
3. Improper Jury Argument
In Issue No. Six, Appellant asserts that the State made an improper jury argument. Specifically, Appellant complains (1) that the State improperly attacked counsel for the defense and (2) that the State improperly argued facts outside of the record. There are four areas of permissible jury argument: (1) summations of the evidence; (2) reasonable deductions from the evidence; (3) responses to the defendant's argument; and (4) pleas for law enforcement. See Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App.), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235, 66 U.S.L.W. 3281 (1997). Counsel may draw all inferences from the facts in evidence that are "reasonable, fair, and legitimate," but he may not use jury argument, either directly or indirectly, to get evidence before the jury that is outside the record. See Sawyer v. State, 877 S.W.2d 883, 887 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). However, even if an argument is outside one of these areas, it may not necessarily require reversal. An instruction to disregard the remarks will normally cure the error, unless "`in light of the record as a whole [the argument] was extreme or manifestly improper, violative of a mandatory statute, or injected new facts harmful to the accused,'" in which case, the error is reversible. See Cooks v. State, 844 S.W.2d 697, 727 (Tex.Crim.App. 1992), cert. denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732, 61 U.S.L.W. 3868 (1993). A mistrial is necessary only where the jury argument is manifestly improper or so extreme that an instruction to disregard will not work to cure the error. See Davis v. State, 894 S.W.2d 471, 474-75 (Tex.App.-Fort Worth 1995, no pet.). Where the prosecutor argues outside of the record and injects personal opinion, an instruction to disregard will cure error unless the argument "`is clearly calculated to inflame the minds of the jurors and is of such character as to suggest the impossibility of withdrawing the impression produced on the juror's [sic] minds.'" See id. at 475. With regard to his first complaint, during closing argument, defense counsel argued that if Appellant had been at the scene of the burglary, he would have cuts and abrasions on him from the struggle. He then conceded that Appellant broke into the victim's home, but argued that Appellant assaulted her only because she struck him with a baseball bat. In its closing, the State responded as follows:Prosecutor: I can't figure out what the defense is. First off, it's that Mr. Drake didn't do it. We have got the wrong person or —
Defense Counsel: Objection. Striking at the defendant over head and shoulders of counsel.
The Court: Overruled.Here, the State was summarizing and responding to the defense counsel's argument. This is a permissible jury argument and thus the trial court did not err in overruling Appellant's objection. This portion of Issue No. Six is overruled. With regard to Appellant's second complaint that the State argued facts outside of the record, the following exchange occurred:
Prosecutor: So I'm asking you to look at all this evidence, all right? She might not could say — let me tell you, if she was lying to you about anything, even from the thing about getting over — when he was over her on the bed and she didn't know if he was going to rape her or kill her, which was probably both, but if she was —
Defense Counsel: Objection. Counsel injecting her personal opinion into the argument. And argument outside the record.
The Court: Overrule the first, sustain the second.
Defense Counsel: Motion to disregard.
The Court: The jury will disregard the last motion — statement of Counsel.
Defense Counsel: Motion for mistrial.
The Court: That will be denied.Later, the State argued that Appellant's "motive was to rape" the victim. Defense counsel again objected on the grounds that the Prosecutor was arguing outside the record and the trial court sustained the objection. The jury was instructed to disregard the last statement by the Prosecutor. Appellant's motion for mistrial was denied. Despite the trial court's rulings, the Prosecutor's arguments that the victim thought that Appellant might rape her and that Appellant's motive was to commit rape were supported by the record. The victim testified that at one point during the struggle, Appellant had bent her over on her bed. She was wearing only "a little cotton nightie." She testified that she was thinking, "Am I going to get raped? Or, [is] this guy going to kill me?" She also stated, "And something told me this guy was going to kill me." The jury also heard testimony that when he was arrested, Appellant's pants were unzipped and he was not wearing any underwear. Appellant's underwear and shoes were later found at the victim's residence. Thus, the Prosecutor's comments were supported by the evidence. Furthermore, even if the State's argument was error, the trial court instructed the jury to disregard and this was sufficient to cure any alleged error. See Pace v. State, 986 S.W.2d 740, 746 (Tex.App.-El Paso 1999, pet. ref'd). Issue No. Six is overruled in its entirety. Having overruled each of Appellant's issues on review, we affirm the judgment of the trial court.