Opinion
No. 05-06-00133-CR
Opinion Filed July 26, 2007.
On Appeal from Criminal District Court 4 Dallas County, Texas Trial Court Cause No. F04-71821-HTK.
Before Justices O'NEILL, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
A jury convicted Hakim Edwards of aggravated robbery with a deadly weapon, enhanced by a prior felony conviction, and assessed punishment at 35 years in prison. On appeal, appellant argues the evidence is legally and factually insufficient to support the jury's verdict; the trial court erred by overruling his motions for mistrial; and the trial court erred by overruling his objection to the State's closing argument. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. For the following reasons, we affirm the trial court's judgment.
Background
On January 9, 2004, Jada Bowens and her six-year-old daughter, Nadaija Jones, were confronted in their home by two armed robbers. One held Jada and Nadaija at gunpoint while the other tied them with duct tape. Both men ransacked the house looking for valuables. One of the robbers then placed Jada and Nadaija in the trunk of the family car. When Abe Jones, Jada's boyfriend and Nadaija's father, arrived home, he discovered Jada and Nadaija in the trunk of the car. He drove them to Jada's mother's house, where they called the police. During the ensuing investigation, Detective Leslie Oelke of the Dallas Police Department showed Jada and Nadaija three photographic arrays and asked whether they could identify the men who accosted them. Detective Oelke showed Jada and Nadaija the first photographic array eleven days after the crime. Nadaija did not recognize anyone from this array; Jada identified Lamont Hill as the second robber, the one with the gun. Detective Oekle showed Jada and Nadaija the second photographic array about a week later. Both identified Ellis Simon as the first robber. They also said Simon put them in the trunk of the car. Detective Oekle executed a search and arrest warrant against Simon. She also interviewed Hill. After speaking with them, Detective Oekle determined that Hill was not involved in the crime, and she shifted the focus of her investigation to appellant. She asked Jada and Nadaija to look at a third photographic array. This array contained appellant's photograph. Detective Oekle testified that Nadaija immediately picked out appellant's photo from the third array and identified him as the second robber. Detective Oekle told Jada she needed to be one hundred percent positive because "we're talking about putting somebody in jail." Jada also identified appellant as the second robber. Detective Oekle obtained a search and arrest warrant for appellant but was unable to execute it because she could not locate him. Over a year later, appellant was located in Oklahoma and was returned to Dallas to face charges for aggravated robbery. At trial, Jada and Nadaija each identified appellant in court, without objection, as the second robber. Jada also testified at trial that she had not been certain when she identified Hill as the second robber, but that she was one hundred percent certain when she saw appellant's photograph that he was the one with the gun, not Hill. The in-court identifications and pretrial line-up identifications were the only evidence tying appellant to the robbery.Legal and Factual Sufficiency
In his first two issues, appellant argues that Jada's and Nadaija's identifications of him as the second robber are legally and factually insufficient evidence to prove his identity because they identified him from an impermissibly suggestive photographic line-up. Appellant does not argue that Jada's and Nadaija's pretrial and in-court identifications were inadmissible. Indeed, appellant concedes he did not preserve these issues for our review because he did not file a motion to suppress the identifications, did not object to the evidence when it was offered at trial, and stated, "No objection" when the evidence was offered. See Perry v. State, 703 S.W.2d 668, 671 (Tex.Crim.App. 1986); Wallace v. State, 75 S.W.3d 576, 584 (Tex.App.-Texarkana 2002), aff'd, 106 S.W.3d 103 (Tex.Crim.App. 2003). Although appellant made no effort to preserve this issue in the trial court, he contends he may raise this argument for the first time on appeal through the assertion of legal and factual insufficiency issues. We disagree. In reviewing legal and factual sufficiency challenges, we consider all of the evidence, whether admissible or inadmissible. Powell v. State, 194 S.W.3d 503, 507 (Tex.Crim.App. 2006); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (citing Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006)). As a result, a determination that the witnesses' identifications were based on an impermissibly suggestive pretrial procedure would not render the evidence insufficient. Legal and factual sufficiency reviews are "barely distinguishable." Marshall, 210 S.W.3d at 625. In a legal sufficiency review, we view the evidence in the light most favorable to the verdict and defer to the jury's determinations of credibility and weight of the evidence. See id; Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). In a factual sufficiency review, we view all of the evidence in a neutral light and may substitute our judgment for the jury's only if we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson, 204 S.W.3d at 415. We will reverse only if the verdict is clearly wrong or manifestly unjust. See Watson, 204 S.W.3d at 417. At trial, Jada described the robbery in detail and identified appellant as the second robber who held her and her daughter at gunpoint. Although she later testified that she initially identified Hill as the second robber, she explained that she was not one hundred percent certain when she identified Hill. She testified she was one hundred percent certain appellant was the second robber. Nadaija testified that she did not recognize anyone from the first photo array, and when she saw the third array, she immediately recognized appellant as the second robber. Detective Oekle testified that Nadaija was the best witness she ever had and that her description of Simon matched him "to a T." We conclude this evidence is legally sufficient to sustain the conviction. See Walker v. State, 180 S.W.3d 829, 832-33 (Tex.App.-Hous. [14th Dist.] 2005, no pet.) (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App. 1971)). Appellant also points out that Jada and Nadaija described the second robber as being shorter than the first robber, but that he is actually taller than Simon. And appellant notes the lack of physical evidence to tie him to the crime. First, height could not have been an issue in Jada's and Nadaija's identifications from the photo arrays because the arrays contained only photos of individuals from the shoulders up. Second, Jada testified that the only time she saw appellant and Simon standing together, appellant was leaning against a wall, making him appear to be shorter than Simon. Additionally, appellant had the opportunity to, and did, thoroughly cross-examine the victims on their identifications of appellant as the second robber. Having reviewed the entire record, we cannot say the jury's reconciliation of the evidence is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We conclude the evidence is factually sufficient to support the verdict. We overrule appellant's first and second issues.Improper Jury Arguments
In issues three and four, appellant raises several complaints about the State's closing argument. He contends the arguments were harmful and his conviction should be reversed as a result. Permissible jury argument falls into four general categories: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answers to opposing counsel's argument, and (4) pleas for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). In his third issue, appellant argues the trial court erred when he denied motions for mistrial following three separate but related statements during the State's closing argument:THE STATE: Detective Oelke brings [Simon] in to talk to him. At this point common sense tells you what he's thinking about. I need to protect myself and get as little punishment as possible. At this point is this a good time to drop a whopper lie like giving the wrong co-defendant? That could be-
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THE STATE: Folks, you heard the evidence. Subsequent to the interview with Ellis Simon, Lamont Hill was no longer a suspect. Hakim Edwards was. If you're going to finger someone wrongly, are you going to finger-
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THE STATE: Members of the jury, subsequent to that interview Lamont Hill was no [longer] a suspect. You know that to be true. Now, when you're looking at a life sentence, aren't you going to be truthful with the detective and not give them information that can easily be proven wrong?Appellant objected after each statement. The trial court sustained the objections and instructed the jury to disregard, but denied appellant's requests for a mistrial. Appellant argues the State repeatedly injected new, harmful facts into the record for which a curative instruction was not effective. The decision to deny a motion for mistrial is within the discretion of the trial court. Edwards v. State, 106 S.W.3d 833, 838 (Tex. App-Dallas 2003, pet. ref'd) (citing Rousseau v. State, 855 S.W.2d 666, 684 (Tex.Crim.App. 1993)). We review a trial court's decision to deny a mistrial for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999) (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993)). A mistrial is an extreme remedy for prejudicial events occurring during the trial process. See Edwards, 106 S.W.3d at 838. However, a prompt instruction to disregard will ordinarily cure the prejudicial effect. See Ladd, 3 S.W.3d at 567. In this case, Detective Oelke testified several times that she considered appellant a suspect as a result of her interview with Simon:
After interviewing Ellis Simon, I obtained the name of Hakim Edwards.
After those two interviews [with Lamont Hill and Ellis Simon], [I] developed a new suspect Hakim Edwards.
[With the conflicting photo line-up identifications], I had to also go with the other statements that I had from Ellis Simon. . . .
[I am positive that Hakim Edwards is the second robber] [f]rom Daija's testimony, the accomplice testimony from when I talked to him. . . .
As a result of that interview [with Ellis Simon], [I] found Hakim Edwards.
I believe that the first line-up . . . with Lamont Hill was not a correct line-up with the information that I had received from my interview with Ellis Simon.We conclude the State's arguments were reasonable deductions from this evidence and, as such, were not objectionable. As a result, even though the trial court sustained appellant's objections, he could not have erred by denying appellant's requests for mistrial.
We overrule appellant's third issue.
In his fourth issue, appellant argues the trial court erred by overruling his objection to the following closing argument:
THE STATE: But where's the search warrant on Hakim Edwards? Which we could have brought you one. Detective Oekle told you we couldn't find him. Went to his mama's house. Mama didn't even know where he was living. Want to search his home. We want to talk to him. We can't do it. Why? Where does he go? Where do we pick him up? Oklahoma. He flew the coop. He was on the lam. He was running because he knew he did something wrong.Appellant argues that because the evidence tying him to the crime is so weak, this argument constitutes severe misconduct and was harmful. We disagree. Detective Oekle testified she was unable to locate appellant to execute the warrant. She interviewed appellant's mother, who was unable to provide any information to help locate appellant. Detective Oekle testified appellant was apprehended a year later in Oklahoma. We conclude the State's argument was a reasonable deduction from the evidence. We overrule appellant's fourth issue.