Opinion
No. 05-04-00495-CR
Opinion filed April 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-36627-LU.
Affirm.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
MEMORANDUM OPINION
Deon Tremaine Harts appeals his conviction for burglary of a habitation. The jury found appellant guilty and assessed his punishment, enhanced by two prior felony convictions, at fifty-five years' imprisonment. Appellant brings four issues on appeal asserting (1) the evidence is factually insufficient to support his conviction, (2) there is insufficient corroborating evidence to support appellant's conviction on the testimony of an accomplice, (3) the trial court erred in prohibiting appellant's cross-examination of a witness concerning the witness's motive to testify, and (4) the trial court erred by overruling appellant's objection to the prosecutor's comment on appellant's failure to testify. We affirm the trial court's judgment.
BACKGROUND
Darin Thomas testified that on August 27, 2003, he and appellant met at Thomas's sister's house. They discussed getting money by stealing a "laptop" computer. Thomas told appellant they would get the computer tomorrow, and appellant said "okay." Appellant told Thomas he knew someone who would buy the computer. The next afternoon, Thomas drove his car, a Datsun, with appellant as the passenger, to the complainant's apartment. Thomas parked in front of the apartment, got out of the car, and told appellant to "watch out" for him. Thomas climbed a fence surrounding the back patio of the apartment, broke a window in the apartment, and took the computer. Thomas then ran back to the car, handed appellant the computer through the car window, ran around to the driver's side of the car, got in, and sped off. Meanwhile, Officer Thomas Pritchett drove past the apartment and saw appellant sitting in the car. As Pritchett drove past, appellant looked up and saw Pritchett, and as Pritchett described appellant's reaction, "he had like a deer in the headlight surprise and shocked look on his face when he saw me." Pritchett then saw Thomas running toward the Datsun, getting in, and driving quickly away. While watching these events, Pritchett thought, "something not right here. I need to look at this a little closer," and he turned his squad car around and followed the Datsun. Thomas drove through an intersection where Officer Greg Brandstatter was pulling over a traffic violator, and Thomas nearly collided with both Brandstatter and the traffic violator. Brandstatter abandoned the traffic violator and followed the Datsun, and he learned it was being chased by Pritchett and that the driver was suspected of burglary. Brandstatter saw only one person in the Datsun as he followed it. Thomas testified that during the chase, appellant exhorted Thomas to "go, go, go." After about five minutes of the chase, Thomas pulled into an apartment complex, jumped out of the car, and started running; appellant stayed in the Datsun. Brandstatter got out of his squad car and ran after Thomas, but he did not notice appellant in the Datsun as he ran past it. Pritchett drove into an alley parallel to where Thomas abandoned the Datsun, and as Thomas cut through to that alley, Pritchett apprehended him. Brandstatter's car was equipped with a video camera, and it was recording as Brandstatter ran after Thomas. The video recording shows that after Brandstatter ran past the Datsun and around the corner, appellant got out of the Datsun and ran away in the opposite direction. Brandstatter returned to his car to drive after Thomas. Two bystanders had seen the Datsun, chased by the police cars, pull into the apartment complex, and they saw appellant run past them from that area. As Brandstatter drove past them, they flagged him down and pointed out appellant, and Brandstatter arrested appellant. Appellant told the officers he had not done anything and that he was looking for an apartment when they arrested him. When the officers returned to the Datsun, they saw the complainant's computer sitting on the center console and on the passenger seat where appellant had been sitting.FACTUAL SUFFICIENCY
In his first issue, appellant asserts the evidence is factually insufficient to support his conviction. In determining the factual sufficiency of the evidence, we view all of the evidence in a neutral light, and we determine whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Our evaluation of the sufficiency of the evidence must give deference to the jury's verdict and to its determinations of the credibility and demeanor of the witnesses. Id. at 481. The jury was instructed on the law of parties, which provides, "A person is criminally responsible for an offense committed by the conduct of another if: . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). Appellant asserts the evidence is insufficient because Thomas, who testified against him, was a convicted felon, was not credible, and had not yet been tried for his role in the burglary. Thomas also testified that he had always maintained appellant's guilt, but he later admitted that statement was a lie because he had written a letter stating that he and appellant were innocent and the fault for the crime lay with the woman who told him about the computer. As set out above, we must give deference to the jury's determinations of the witnesses' credibility and demeanor. Although Thomas may have been a liar and thief, no evidence was presented showing his testimony about the offense itself and appellant's part in it were false. Furthermore, appellant's guilt was supported by the evidence of his running away from the Datsun and the stolen computer after Brandstatter ran past him. Colella v. State, 915 S.W.2d 834, 839 n. 7 (Tex.Crim.App. 1995); Cardenas v. State, 971 S.W.2d 645, 649 (Tex.App.-Dallas 1998, pet. ref'd). After reviewing all the evidence in a neutral light, we conclude the evidence of appellant's guilt, taken alone, is not too weak to support the finding of guilt beyond a reasonable doubt, nor is the evidence contrary to the verdict so strong that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant's first issue.ACCOMPLICE-WITNESS TESTIMONY
In his second issue, appellant contends the evidence was improperly based on Thomas's uncorroborated accomplice-witness testimony. Article 38.14 of the code of criminal procedure provides, "A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). In conducting a sufficiency review under the accomplice-witness rule, a reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001). "Tend[ency] to connect" rather than rational sufficiency is the standard; the corroborating evidence need not be sufficient by itself to establish guilt. Id. The accomplice-witness rule is not based upon federal or state constitutional notions of sufficiency; there simply needs to be "other" evidence tending to connect the defendant to the offense. Id. The jury charge in this case included an accomplice-as-a-matter-of-law instruction for Thomas. Evidence "tending to connect" appellant to the burglary as a party included appellant's presence in the car while Thomas broke into the apartment and stole the computer, appellant's demeanor when he saw officer Pritchett, appellant's flight, and the computer's presence in the passenger seat where appellant had been sitting. We conclude this evidence "tend[s] to connect" appellant to the offense and is sufficient corroboration of appellant's participation in the offense. We overrule appellant's second issue.CROSS-EXAMINATION OF THOMAS
In his third issue, appellant contends the trial court erred in sustaining the State's objections to appellant's cross-examination of Thomas regarding Thomas's incentive to testify. During direct examination by the State, Thomas testified he intended to plead guilty to the burglary charge pending against him, and he understood that no "deal" existed regarding his punishment in exchange for his testimony against appellant. During cross-examination by defense counsel, Thomas testified,Q. Your attorney is sitting in the back of the courtroom, right?
A. Right.
Q. He's met with the D.A., correct?
A. Yes, I guess-yes.
Q. Have you spoken with the D.A. in preparation for testifying this morning?
A. Excuse me? I talked to my lawyer.
Q. Have you met with the D.A. before today?
A. No.
Q. Never? You understand that the D.A. basically has your report card in their hands right now, don't you?
A. Yes.
Q. You understand they expect you to testify a certain way? You know that, don't you?
A. No.
Q. You know that you have got to come in here and put it all over [appellant] in order for you to even hope to get one positive word out of the D.A. and their recommendation to the Judge at your punishment hearing? You know that, don't you? You understand that the D.A. is going to make a recommendation to the Judge at your punishment hearing, don't you?
A. I know my lawyer and them-I know they got something to do with it, yeah.
Q. This isn't your first rodeo. You've been through things like this before, haven't you?
A. Yes.
Q. You understand that if you don't sing off the same sheet of music that the D.A. is singing off of they're not going to be happy. You understand that?
[Prosecutor]: I object to counsel implying that we have coerced or have told Mr. —
The Court: Sustained.
[Prosecutor]: — Thomas what to say.
[Defense Counsel]: Let me rephrase it.
Q. You understand if you don't come in here, point your finger at [appellant] saying that he somehow participated, number one, it's not going to be what the D.A.s expect?
[Prosecutor]: I object to the comment [sic] side bar comments by counsel.
The Court: Sustained.
[Prosecutor]: Ask the jury be instructed to disregard.
The Court: Jury will disregard the last comment made by the attorney. You can't consider it for any purpose whatsoever.
[Prosecutor]: Ask counsel be instructed to refrain from accusations in the courtroom.
The Court: [Defense Counsel].
[Defense Counsel]: Certainly, Your Honor.
Q. You understand that the D.A.s are going to be making a recommendation in your punishment hearing? You understand that?
A. Do I understand?
Q. Yeah.
A. No, I don't understand.
Q. You don't understand that? That's completely foreign to you that the prosecution at your punishment hearing is going to take a position on what the Judge should do regarding you?
A. Yes.
Q. That's a shock to you?
A. No.
Q. You understand that?
A. Yes.
Q. Would it further surprise you that the position they take might just be influenced by how you testify?
[Prosecutor]: I object to being relevant [sic], same situation co-counsel just objected to.
The Court]: Sustained.
[Prosecutor]: Implying there's some deal.On appeal, appellant asserts the trial court's sustaining of the prosecutor's objections denied appellant his Sixth Amendment right to confront Thomas. Appellant did not raise this argument at trial, so he has not preserved error. Tex.R.App.P. 33.1; Potter v. State, 74 S.W.3d 105, 116 (Tex.App.-Waco 2002, no pet.). Appellant also contends the trial court's rulings restricted his cross-examination of Thomas; however, appellant did not raise this argument at trial and thus has not preserved error. Tex.R.App.P. 33.1; see Potter, 74 S.W.3d at 116. Appellant also asserts the trial court erred in sustaining the State's objections. Appellant, however, failed to make a record to show what evidence he wanted to develop. See Tex. R. Evid. 103(a)(2); Tracy v. State, 14 S.W.3d 820, 827-28 (Tex.App.-Dallas 2000, pet. ref'd); Gonzalez v. State, 976 S.W.2d 324, 326 (Tex.App.-Corpus Christi 1998, no pet.). Furthermore, appellant never indicated to the trial court that the court's rulings unreasonably limited his cross-examination of Thomas. Tex.R.App.P. 33.1. Accordingly, appellant has not preserved error. We overrule appellant's third issue.
JURY ARGUMENT
In his fourth issue, appellant contends the trial court erred by allowing the State to comment on appellant's failure to testify during jury argument at the guilt phase. The following occurred during the State's jury argument:
[Prosecutor]: . . . Now, use your reason and common sense is what I am going to ask you to do. What I am going to ask you to do is look at the defendant here, Mr. Harts, and ask yourselves this when you go back in the jury room. If you were just there not doing anything, why not get out of that car when the car pulls over?
[Defense Counsel] I object to that as a comment on his failure to testify.
The Court: Overruled.
[Prosecutor]: Why not just stop the officers and say, "I'm not involved in this"? Why not stop the officers and say, "I saw him do this. I saw him do this"? Ladies and gentlemen, you have to ask yourselves these questions because it's your job to determine the credibility here. It's your job to ask yourselves why someone who is trying to portray himself as not being involved but would run, would not stop it, would continue to run-you heard his language on the tape. You heard how he acted. He said he was apartment looking. Obviously we know that was lie.The defendant's state and federal constitutional and statutory right not to be a witness against himself prohibits the State from commenting on the defendant's failure to testify. See U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979); Wead v. State, 129 S.W.3d 126, 128 nn. 2 3 (Tex.Crim.App. 2004). The reviewing court considers the comment from the standpoint of the jury. Swallow v. State, 829 S.W.2d 223, 225 (Tex.Crim.App. 1992). For the prosecutor's argument to violate the defendant's right against self-incrimination and be reversible error, the argument must do more than merely imply or indirectly allude to the defendant's failure to testify; the argument must be manifestly intended or be of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify. Canales v. State, 98 S.W.3d 690, 695 (Tex.Crim.App. 2003). Language that can reasonably be construed to refer to a failure to present evidence other than from the defendant's own testimony does not comment on the defendant's failure to testify. Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001). However, argument that points to a lack of evidence that only the defendant personally can supply violates the defendant's right against self-incrimination. See id.; Swallow, 829 S.W.2d at 225. Although appellant did not testify, the jurors had evidence of appellant's statements through the testimony of the police officers and the playing of the videotapes from the squad cars. Viewed in context from the standpoint of the jury, the objected-to argument did not point to a lack of evidence that could have been supplied only by the defendant; instead, the argument asserted that appellant's words and actions were inconsistent with how an innocent person would behave. We conclude the trial court did not err by overruling appellant's objection. We overrule appellant's fourth issue.
We affirm the trial court's judgment.