Nos. 05-03-01245-CR, 05-03-01246-CR
Opinion issued November 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-50859-Mtm, F03-01026-Htm. Affirmed.
Before Justices MORRIS, WHITTINGTON, and MAZZANT.
Opinion By Justice MAZZANT.
Johnny Shanada Humphrey appeals his convictions for aggravated robbery. After finding appellant guilty, the jury assessed appellant's punishment at twenty-seven years' imprisonment in each case. Appellant brings seven issues asserting (a) the evidence is legally and factually insufficient to support his convictions; (b) the trial court erred in admitting evidence of extraneous offenses; and (c) the trial court erred in refusing to grant a motion for severance. We affirm appellant's convictions.
FACTUAL BACKGROUND
On May 11, 2002, at about 3:00 a.m., Aurelio Barsenas drove himself and his brother, Antonio, to their apartment complex. Aurelio drove into the complex's gated parking lot and parked. As Antonio got out of the passenger side of the car, two armed men, appellant and Antwonne Wright, stepped up to him. Appellant put his gun to Antonio's head while Wright demanded that Antonio give him money. Antonio handed Wright his wallet, but he had only a credit card, driver's license, and personal papers in the wallet. Wright told Antonio, "Give me the money. If not, I will kill you." Wright threw Antonio on the ground and kicked him. Wright took Antonio's gold chain and made Antonio remove his shoes and socks. While Wright robbed Antonio, appellant got in the passenger side of the car, pointed his gun at Aurelio, and demanded his keys, wallet, and money. Aurelio got out of the car, and he either left the car running or put the keys under the seat. Appellant got out of the car and came around the front of the car to stand beside Aurelio. Aurelio gave appellant his wallet. Aurelio did not have any usable money in his wallet, only some discontinued Mexican banknotes. Appellant took the banknotes out of the wallet and put them in his pocket. Appellant also demanded Aurelio's gold chain and told him to remove his shoes. Aurelio gave him his gold chain, and appellant hit him in the head with the gun. A woman, Norma Hartfield, in a sand-colored Dodge Intrepid, shouted "Let's go" to appellant and Wright, and appellant and Wright got in the Intrepid and drove out of the apartment complex. Antonio went to his apartment and called the police. Two officers arrived. The officer who spoke Spanish spoke to the Barsenases and translated the information to her partner, who broadcast descriptions of the suspects. Meanwhile, officers Kevin Whitworth and Darrell Harmon received information about a tan-colored Dodge Intrepid being taken in a car-jacking. The officers saw the Intrepid with appellant, Wright, and Hartfield, and they stopped it. Appellant was driving the vehicle. The officers heard the report about the robbery of the Barsenases, and they observed that the people they had detained fit the description of the robbery suspects. The officers searched appellant and Wright and found the Barsenases' gold chains in their pockets. The officers found two guns hidden under the carpeting in the trunk of the vehicle. The police found Aurelio's Mexican banknotes on Hartfield. The police also found Antonio's driver's license and credit cards. The police did not find any drugs in the Intrepid. The police took the Barsenases to where appellant, Wright, and Hartfield were detained, and the Barsenases identified them as the men who robbed them and the woman driving the Intrepid used for the getaway. Wright testified that on May 5, 2002, he, appellant, and Hartfield lived in a motel. According to Wright, the Intrepid belonged to appellant and appellant's wife. That night, appellant and Hartfield picked up Wright in the Intrepid, and the three of them went to a nightclub. Wright and appellant knew the Barsenases because they had sold the Barsenases drugs on several occasions. As they left the nightclub, appellant received a page from Antonio Barsenas. The page included the code number to enter the parking lot of the apartment complex. When appellant and Wright got to the apartments, the Barsenases said they wanted to buy $140 of cocaine and heroin, but they did not have any money. The Barsenases said they would give appellant and Wright collateral-their gold chains, credit cards, driver's license, and Mexican banknotes-and they would have the money for appellant and Wright the next day. Appellant and Wright had both real drugs and fake drugs, capsules of flour and brown sugar, and they decided to take the collateral but give the Barsenases fake drugs instead of cocaine and heroin. Wright testified they never got the guns out of the car that night but that the Barsenases knew what their guns looked like because they had seen them during previous drug transactions. Wright denied that appellant hit Aurelio in the head with the gun, and he stated he did not know how Aurelio suffered the head wound. Wright denied kicking Antonio, and he testified he had a bad leg and was physically incapable of kicking anyone. Wright testified that after they sold the Barsenases the capsules of flour and brown sugar, they drove to a nearby drive-through restaurant. They were leaving the parking lot when they saw the police squad cars. They pulled over when the squad car put on its overhead lights, and they cooperated with the police. The Barsenases came to the scene and told the officers that appellant and Wright had robbed them. Wright testified that the Barsenases accused them of robbery because they were angry about being sold fake drugs and wanted to get their property back. Wright testified the police found drugs in the Intrepid but failed to report it. He also testified that appellant had several hundred dollars in his possession that the police took but failed to report. He stated that he, appellant, and Hartfield made enough money from selling drugs that they did not need to rob anyone. However, despite the adequate income from drug sales, Wright admitted to three car thefts, one occurring about a month before the incident in this case. On rebuttal, the State presented evidence of the items found in Hartfield's purse, including checks, credit cards, and identification cards, all belonging to other people. SUFFICIENCY OF THE EVIDENCE
In his first and second issues, appellant asserts the evidence is legally and factually insufficient to support his convictions. When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). In a factual sufficiency review, the sole issue is whether all the evidence viewed in a neutral light shows the jury was rationally justified in finding guilt beyond a reasonable doubt. 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 not substantially intrude upon the jury's role as the sole judge of the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Appellant first argues the evidence is legally and factually insufficient because of inconsistencies in the Barsenases' testimony. The inconsistencies appellant asserts are (1) whether Aurelio was still in the car when appellant came around the front of the car as Antonio testified or whether Aurelio had already gotten out of the car as Aurelio testified; (2) Aurelio's testifying appellant grabbed him while he was in the car and his testifying that no one prevented him from getting out of the car; (3) Aurelio's testimony that he left the motor running when he got out of the car and his testimony that he threw the keys under the seat before he got out; and (4) Antonio's testimony that Hartfield drove the Intrepid up to appellant and Wright, and Aurelio's testimony that appellant and Wright went to where the Intrepid was parked. None of these minor inconsistencies shows the jury's conclusion that appellant robbed the Barsenases' was irrational. Likewise, the other inconsistency appellant cites, Antonio's testimony that Wright kicked him and Wright's testimony that he was physically incapable of kicking anyone, does not cast doubt on the jury's verdict. Appellant also asserts the evidence is legally and factually insufficient because of Wright's testimony that the Barsenases invited them to the apartment complex and they sold the Barsenases fake drugs. Appellant first asserts they could not have gotten through the apartment complex's gates without the code that Antonio paged to appellant. The evidence does not show whether it was impossible to get through the gates without the code. The jury was free to disbelieve Wright and could conclude appellant, Wright, and Hartfield found a way to enter the complex without Antonio giving them the code. Appellant also argues the evidence is legally and factually insufficient because Wright's testimony shows appellant, Wright, and Hartfield did not rob the Barsenases but sold them fake drugs and that the Barsenases' robbery allegations were in retaliation for their cheating them. Wright's testimony was in direct conflict with the Barsenases' testimony that appellant and Wright robbed them and with officers Whitworth and Harmon's testimony that no drugs were found in the Intrepid. The jury determined that the Barsenases' and the officers' testimony was more credible than Wright's, and we should not interfere with that decision. See Johnson, 23 S.W.3d at 7. After reviewing all the evidence under the appropriate standards of review, we conclude the evidence is both legally and factually sufficient to support appellant's convictions. We resolve appellant's first and second issues against him. EXTRANEOUS OFFENSES
In his third through sixth issues, appellant asserts the trial court erred in admitting evidence of extraneous offenses. The evidence to which appellant objected was the contents of Hartfield's purse, which contained two checkbooks on someone else's account; three checks on various accounts made out to Manuel Reveles and one check made out to Manuel Rebeles; two driver's licenses (one expired), a Social Security Card, and a Mexican identity card, all issued to Manuel Reveles; a driver's license issued to Marvin Allen; a grocery store savings card; a mobile telephone; and $750 cash. Appellant first argues the evidence was irrelevant because nothing in the record shows the items were evidence of extraneous offenses or were otherwise relevant. Under the record in this case, there were only two reasonable inferences for Hartfield's possession of the property of other people: (1) the items were held as collateral for drug deals, or (2) the items were stolen. Under either scenario, the items are evidence of extraneous offenses. The jurors could conclude, however, that appellant and his cohorts would not accept worthless property as collateral, but they might steal worthless property if it was inside another stolen item, such as a purse or wallet. The items included two checkbooks on the same account, which the jury could conclude would have no more value than one checkbook because the value would be the amount of money in the account, as well as an expired driver's license, which the jury could conclude would be virtually worthless. Thus, the jury could conclude the items were stolen instead of held as collateral. Appellant also argues no evidence shows the items were evidence of extraneous offenses committed by appellant. We disagree. Wright testified that he, appellant, and Hartfield lived in the same hotel, rode around together in the Intrepid, and sold drugs together. Wright also testified that appellant was having an affair with Hartfield. The jurors could infer from this evidence that appellant, Hartfield, and Wright worked together in their illegal activities, including the activities leading to Hartfield's possession of these items. Appellant next argues the evidence is irrelevant because it has no relevance apart from character conformity. See Tex. R. Evid. 404(b). Extraneous offense evidence is "admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. In this case, Wright testified that he, appellant, and Hartfield did not rob the Barsenases because (1) they earned so much money from selling drugs that they had no reason to rob people; and (2) they would not rob people without a reason; thus (3) they did not rob the Barsenases but took their property as collateral. The evidence of the items found in Hartfield's purse tends to rebut Wright's testimony that they took the property without the intent to permanently deprive the Barsenases of their property because it shows the three of them had stolen other property even though they had no reason to do so. Accordingly, the evidence has relevance apart from character conformity in that it tends to prove appellant's intent in taking the Barsenas's property. Appellant next argues that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. In resolving this issue, we consider (1) the probative value of the evidence, (2) the potential of the evidence to impress the jury in an irrational and indelible way, (3) the time needed to develop the evidence, and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim.App. 2000). The last inquiry includes three subparts: (1) does the proponent have other available evidence to show the fact of consequence that the extraneous misconduct is relevant to show; (2) if so, how strong is that other evidence; and (3) is the fact of consequence related to an issue that is in dispute? Montgomery, 810 S.W.2d 372, 390 (1990) (op. on reh'g). We do not reverse the trial court's ruling unless the record shows an abuse of discretion. As discussed above, the evidence was relevant to prove appellant's intent in taking the Barsenas's property; this factor weighs in favor of the State. The evidence appears to have little potential to impress the jury in an irrational and indelible manner; this factor weighs in favor of the State. Cf. Erazo v. State, 144 S.W.3d 487, 494-95 (Tex.Crim.App. 2004) (photograph of murder victim's unborn child had great potential to impress the jury in an irrational and indelible manner). The evidence was admitted through the testimony of a single witness at the rebuttal phase of the trial and took little time to develop; this factor weighs in favor of the State. Considering the State's need for the evidence, the only other evidence of theft by appellant and his cohorts, aside from the charged robberies, was Wright's testimony that he stole cars even though he did not need to do so. However, that evidence is not strong because Wright's testimony about the car thefts did not tend to implicate appellant. Finally, the fact of consequence, appellant's intent in taking the Barsenas's property was put into dispute by Wright's testimony that they took the property as collateral. These factor's weigh in favor of the State. We conclude the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. After reviewing the record, we conclude the trial court did not abuse its discretion in admitting the evidence of the contents of Hartfield's purse. We resolve appellant's third through sixth issues against him. SEVERANCE
In his seventh issue, appellant asserts the trial court erred in refusing to grant the motion for severance. In his brief on appeal, appellant states, "Prior to the commencement of the trial, the Appellant moved for a severance from the co-defendant Wright due to the fact that a joint trial would not be in the `best interest' of the Appellant. The State opposed the motion and the trial court denied the motion for severance." (Citations omitted.) Appellant has the facts confused. The record shows Wright's attorney stated, "Mr. Wright objects to being tried with Mr. Humphrey and would ask the Court to sever his case and allow his two cases to be tried together independent of Mr. Humphrey . . . [because] he doesn't feel that it's in his best interest." The State objected to the severance, asserting there were no legal grounds for the severance, and the trial court denied Wright's motion for severance. Appellant, however, did not move for a severance. The right to a severance is governed by article 36.09 of the code of criminal procedure. That provision requires the defendant seeking a severance to file a timely motion for severance and present evidence in support of it. Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 1981). In this case, appellant did neither. Accordingly, he has not preserved the error, if any, for review. Tex.R.App.P. 33.1(a)(1); see Watkins v. State, 946 S.W.2d 594, 597 (Tex.App.-Fort Worth 1997, pet. ref'd). We resolve appellant's seventh issue against him. We affirm the trial court's judgments.