Opinion
No. 05-04-01861-CR
Opinion Filed June 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F04-49433-JH. Affirm.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
OPINION
Travis Nero Hayden appeals his conviction for aggravated robbery. After finding appellant guilty, the jury assessed appellant's punishment at thirty years' imprisonment. Appellant brings two issues on appeal asserting (1) the evidence is factually insufficient to support his conviction and (2) the trial court erred in denying appellant's motion for mistrial after a witness revealed appellant had previously been incarcerated in the penitentiary. We affirm the trial court's judgment.
BACKGROUND
Fabien Davila worked for a coin-operated car wash company. On February 23, 2004, Davila drove a pickup truck to one of the car washes to collect the money. In the truck, Davila had a blue plastic bag stuffed with dollar bills from the other car washes he had visited earlier. As Davila stepped out of the truck, a man put a gun to Davila's side and told Davila to give him his money and keys and not to look at his face. Davila gave the man his wallet and keys, and the man told Davila to walk away. The man then got into Davila's pickup and drove to a neighboring store and stopped near a white Dodge Dakota with three men in it. One of the men, who appeared to be a teenager, got out of the Dakota and got into Davila's pickup with the assailant. The assailant then drove away in Davila's pickup, and the Dakota followed. Although Davila never saw the face of his assailant, he described him as a black male, about thirty to forty years old, wearing dark pants, a dark jacket, and a "beanie cap" or hood. Davila called the police, and descriptions of the assailant and Davila's truck were broadcast. About twenty minutes after receiving the description of Davila's truck, Dallas Police Officer Tracy Smith saw Davila's truck parked under a bridge. Appellant was standing next to the truck, and he was wearing a black jacket and a beanie cap. Another person, Dallas Farris, was sitting in the truck on the passenger side. When appellant saw Smith, appellant got in the truck and drove away. Smith followed them, and appellant pulled into a liquor store parking lot. Appellant got out of the truck, pocketed the keys, and started to walk toward the liquor store. Smith and another officer detained appellant while a third officer detained Farris. Inside the truck, the police saw a handgun half-hidden under the truck's center console. Davila testified he did not keep a gun in the truck, and he testified that the gun the police found looked like the one his assailant used. The officers arrested appellant and searched his pockets, finding the keys to the pickup and Davila's wallet with Davila's driver's license and credit cards. When the officers searched Farris, they found a knife in his pocket that Davila kept in the truck. Baron Moore testified he was at the car wash to help people wash their vehicles when the robbery occurred. He testified he saw the Dakota stopped near the car wash, and he walked over to it and asked the man in the front passenger seat if they wanted the Dakota washed. The front passenger said "no" and told Moore to get away from their vehicle. Of the four men in the Dakota, one was wearing a red jacket and the other three, including the front passenger, wore dark colors. When Davila pulled into the car wash, Moore saw the front passenger get out of the Dakota, confront Davila, point his gun at Davila, and demand Davila's money and keys. Moore tried to go into the store to call the police, but the man in the red jacket stopped him and pulled up his jacket showing Moore a gun. The robber drove Davila's pickup back to the store, and the man with the red jacket got into the passenger side of Davila's vehicle. The robber then drove away with Davila's pickup followed by the two men in the Dakota. Although Moore did not get a good look at the robber's face, he testified the robber wore a black jacket with an insignia on the left hand side and stripes down the side, dark pants, and a black "stocking cap toboggan" hat. The prosecutor showed Moore the coat appellant was wearing when he was arrested, and Moore agreed that it "look[ed] like the coat that the person who did the robbing had on." Moore also testified that the gun found in Davila's vehicle looked like the gun used by the robber. The man arrested with appellant, Dallas Farris, testified he and appellant walked to the car wash. When they got to the store next to the car wash, Farris went into the store for a couple of minutes. When he came out, appellant was sitting in a truck and told Farris to get in the truck. Farris got in the truck, and appellant drove them to appellant's home where appellant dropped off a bag of money that was in the truck. Farris found a pocketknife in the truck's ashtray, he used the knife to "cut down" cigars, and he then put the knife in his pocket. Appellant then drove them to the bridge, and by that time appellant had seen the police following them. Appellant drove to a nearby parking lot, put a gun under the arm rest in the truck, and told Farris "He got it, don't run, don't be scared, I got it." They were then arrested. Farris testified that when they were arraigned and on the day Farris testified, appellant told Farris to testify that he, Farris, had the gun and not appellant. Farris testified appellant was wearing a black beanie hat. Appellant did not testify, but a written statement he gave the police was admitted. In the statement, appellant said,A guy I know by the name of "Beemer" came by my house and asked me if I wanted to go "make some money." He was driving a white truck. I climbed into the white truck Beemer was driving and rode in the extra-cab. Beemer pulled into a store parking lot after driving thru a car wash. The car wash is right beside the store which faces Buckner. I knew Beemer was up to no good. Beemer got out of the white truck. Beemer walked behind the store toward the car wash. Next thing I saw was Beemer pulling up beside us in a grey truck that had silver tool boxes in back. Me and some other guy followed "Beemer" who was driving the mans [sic] grey truck. Then we go to St. Augustine and Scyene by Brewster and Beemer gives me the truck and Beemer jumps in the white truck and takes off. Then I asked my friend "Blood" who's real name is Dallas to help me search the truck in South Dallas. We drove to Lamar Street by the bridge where I thought people might buy some parts. Then the police saw us searching the truck. I found a gun which was silver and black in the center console. But I left it there. I also found a wallet on the truck seat, but when I saw the police I put the wallet in my back pocket. I drove a short distance but when the police put their lights on I pulled over. We didn't resist or run at all.
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; Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Appellant argues the evidence is insufficient because neither Davila nor Moore could identify him as the robber, and Farris did not testify appellant robbed anyone. Davila testified he did not look at the robber's face, and Moore testified he did not get a good look at the robber. However, they accurately described the robber's height, weight, age, and clothing, which was consistent with appellant's. See Sosa v. State, 177 S.W.3d 227, 230-31 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (evidence factually sufficient to support aggravated robbery conviction where identification of defendant as robber based on clothing, height, and build). Appellant's identity as the robber is also supported by the fact that he was driving Davila's pickup and had Davila's wallet in his pocket less than an hour after the robbery. Appellant argues the evidence is factually insufficient because the State could not produce the beanie hat appellant was supposedly wearing. However, Farris and Officer Smith testified appellant was wearing a beanie hat before he was arrested. Appellant argues the evidence is factually insufficient because the blue money bag was never recovered. However, the record does not show whether appellant's house was searched or if the police investigated the theft of the bag. Furthermore, Farris testified appellant took a blue plastic bag filled with dollar bills into appellant's house. Appellant argues his written statement provided an alternative reasonable hypothesis to his guilt, namely, that the truck was stolen by "Beemer" who gave the truck to appellant and appellant found the wallet and gun in the truck. Whether a defendant's explanation for possession of recently stolen property is true or reasonable is a question of fact to be resolved by the trier of fact. See Dixon v. State, 43 S.W.3d 548, 552 (Tex.App.-Texarkana 2001, no pet.). In this case, the jury could conclude that appellant's explanation that the truck was stolen by "Beemer" and immediately given to appellant was untrue and unreasonable. After reviewing all the evidence in a neutral light, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first issue.MOTION FOR MISTRIAL
In the second issue, appellant asserts the trial court erred in denying his motion for mistrial after a witness revealed appellant had previously been incarcerated in the penitentiary. Before Farris testified, the trial court instructed Farris not to reveal that appellant had a prior felony conviction. During the State's direct examination of Farris, the following occurred:Q. . . . Mr. Farris, you've had conversations with the defendant in the past about this case, is that right?
A. Yes, sir.
Q. Okay. In fact today while you were getting ready to come in here and testify he was hollering stuff at you today, wasn't he?
A. Yes, sir.
Q. Okay. What were the kind of things he was telling you today?
[Defense Counsel]: I object at this point, hearsay, and ask that we approach?
The Court: Well, hearsay is overruled. But I'll allow you to approach.
(Sidebar conference.)During this sidebar conference, defense counsel asked what Farris was going to say. The prosecutor said Farris would say appellant had asked Farris "to take the case off of him" and made a reference to the gun. The State's examination of Farris then continued:
Q. Okay. Mr. Farris, when I was talking to you back there at the window was the Defendant saying things to you then?
A. Yes, sir.
Q. And was he telling you to take the gun off of him again?
[Defense Counsel]: Objection, leading.
The Court: Well, okay. I'll sustain the objection.
[Prosecutor]: I'll rephrase the question.
Q. What was he saying to you?
A. He was telling me to take the case, that I'm younger and he had already been down.
Q. That you were young and what?
A. I was younger than him, he already had been down before.Appellant then objected, and the jury was removed from the courtroom. Defense counsel complained that Farris had testified about appellant's prior conviction after being instructed not to do so, and defense counsel requested a mistrial. The trial court denied the mistrial. The court noted that the State had tried to contain Farris's answer by asking a leading question, to which appellant objected. The court observed the State then asked a more open-ended question, which appellant answered with the improper statement that appellant "had been down before." The court stated, "the prosecutor it appeared to me had made a good faith effort to try to contain this." The court also observed that Farris's "answer trailed off . . . [and] many of the jurors may not have heard that answer." When the jury returned to the courtroom, the trial court said, "Members of the jury, you are instructed to disregard the last answer given by this witness." Appellant moved again for a mistrial, which the trial court denied. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Mistrial is a device used to halt trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Id. To determine whether a given error necessitates a mistrial, we must examine the particular facts of the case. Id. Ordinarily, a prompt instruction to disregard will cure the prejudicial effect of an improper question and answer, including those regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000); Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992). A mistrial is required only when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Russeau v. State, 171 S.W.3d 871, 885 (Tex.Crim.App. 2005), petition for cert. filed, Nos. 05-856 (Jan. 3, 2006), 05-8398 (Dec. 28, 2005); Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). In this case, Farris's statement that appellant "had already been down before" was a cryptic reference to appellant's previous incarceration. The trial court noted that Farris's voice trailed off as he said it and that the jurors may not have heard the statement. Finally, the trial court promptly instructed the jurors to disregard. We conclude the record does not show the trial court's denial of appellant's motion for mistrial was an abuse of discretion. We overrule appellant's second issue. We affirm the trial court's judgment.