Opinion
Nos. 05-07-01510-CR, 05-07-01511-CR
Opinion Filed March 31, 2009. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause Nos. F06-60837-LJ and F07-00570-MJ.
Before Justices RICHTER, LANG, and MURPHY.
OPINION
A jury convicted appellant of two counts of aggravated robbery with a deadly weapon, found one enhancement paragraph to be true in each case, and assessed punishment at twenty years' imprisonment on each offense. In four points of error, appellant challenges the legal sufficiency of the evidence to identify him as the perpetrator of one of the offenses, argues the trial court erred by allowing hearsay testimony, and claims he was deprived of a fair trial when the prosecutor struck at appellant over his counsel's shoulders. We affirm the trial court's judgments.
Background
On November 29, 2004, a masked man entered the Auto Zone store at 10418 Garland Road shortly before 10:00 p.m., the store's scheduled closing time. According to Jeremy McCoy, the assistant manager of the Auto Zone, the robber had black skin and was "exactly" the same size as appellant. The robber grabbed Ignacio, a member of the cleaning crew, put him in a headlock, and put a gun to his face. McCoy approached the robber who said, "Yeah, you know what this is." McCoy said he did and that they should go to the back office where the safe was located. The robber told McCoy and Ignacio to go to the back of the store. Ignacio did not speak English, however, and did not understand the robber's command. After Ignacio walked behind the cash registers, rather than toward the back of the store, the robber became very upset and began screaming for everybody to go to the back. McCoy, Ignacio, and one other Auto Zone employee went to the back of the store. The robber told McCoy to remove the money from the safe and forced the other two men to lie down on the floor. McCoy put the money in a black cloth bag. The robber said he knew there was more money and held the gun to McCoy's face. McCoy said there was one register that had not been closed. The robber and McCoy moved to the register and McCoy gave all the money in the register to the robber. The robber took approximately $2500 from the Auto Zone. The robber then told McCoy to move to the back of the store. As McCoy did so, he looked back at the robber, and the robber shot twice at McCoy. McCoy believed the shooting was intentional. Detective Kyle Kreum of the Dallas police department recovered two bullet fragments and two spent cartridges from the Auto Zone. The jury viewed videotapes of the robbery taken by Auto Zone's security system. Alejandra Quintana testified she was working at the Auto Zone at 4909 Columbia Avenue on January 31, 2005 when a masked man entered the store shortly before closing time. Working with Quintana were her manager "Miguel" and fellow employees "Rolando" and "Joe." The robber had a gun and forced the employees to the back of the store. Miguel removed money from the safe and put it into a bag. The jury viewed videotapes of the robbery taken by Auto Zone's security system. Dallas police officer Gary Burch was assigned to the patrol division on January 31, 2005. He responded to a call that an officer was chasing a suspect in the 4900 block of Columbia. Burch arrived at the location within thirty seconds of receiving the call. Burch saw an officer running through a vacant lot and began monitoring the fence line in the alley. Burch heard a thump, a thud, and scratching sounds and then saw hands and a head coming over the fence. Burch yelled, "Dallas police." The man coming over the fence looked at Burch and said he needed help and that someone was chasing him. Burch started to ask the man who was chasing him when the man dropped down on the other side of the fence from Burch. Approximately thirty seconds later, Burch heard a number of officers shouting commands to stop. Burch saw no one else in the area. After Burch heard the suspect was in custody, he went to the front of the duplex at 4926 Reiger. The suspect was in the backyard of the house. The suspect was the same man who tried to climb the fence. While walking down the driveway towards the back of the house, Burch saw a gun in the driveway towards the alley area behind the house. The house was located within one or two blocks of the Auto Zone. On January 31, 2005, Dallas police officer Juan Jose Aguinaga received a call of a robbery in progress. When Aguinaga responded to the call, the suspect was in custody. Aguinaga identified appellant as that suspect. Aguinaga also saw a gun in the driveway of the house where appellant was detained. Aguinaga then went to the Auto Zone and searched the parking lot. He found a black bag containing money under a van in the parking lot. Roosevelt Holiday is a crime scene detective for the Dallas police department. On January 31, 2005, Holiday was called to the Auto Zone on Columbia Avenue. Near where appellant was apprehended, Holiday collected discarded clothing and a .45-caliber gun. Holiday did not find any fingerprints on the gun and is not aware of any scientific evidence, such as DNA or hair samples, connecting appellant to the discarded clothing. Robert Andrews, the Regional Manager of Loss Prevention for Auto Zone, testified that based on his review of Auto Zone's records, Miguel Gaona was working at the Auto Zone at 4909 Columbia Avenue on January 31, 2005. Lannie Emanuel, a firearm examiner for the Southwestern Institute of Forensic Sciences, examined the gun found following the January 31, 2005 robbery. The gun was in working order and was a deadly weapon. Emanuel fired bullets from the gun to obtain a known sample and compared the fired bullets and spent cartridges to those found following the November 29, 2004 robbery. In Emanuel's opinion, the bullets recovered following the November 29, 2004 robbery were fired from the gun found following the January 31, 2005 robbery. Fred Turner, appellant's minister, testified he had been around appellant at church and had heard appellant speaking Spanish on two occasions.Sufficiency of the Evidence — Cause No. 05-07-01510-CR
In one point of error, appellant argues the evidence is legally insufficient to identify him as the perpetrator of the November 29, 2004 robbery. In conducting a legal sufficiency review, we view 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App. 2009). The trier of fact is the sole judge of the weight and credibility of the evidence and is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). In performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App. 2007). The State had the burden to prove beyond a reasonable doubt that appellant is the person who committed the crime charged. See Miller v. State, 667 S.W.2d 773, 775 (Tex.Crim.App. 1984); Wiggins v. State, 255 S.W.3d 766, 771 (Tex.App.-Texarkana 2008, no pet.). Identity may be proved by direct evidence, circumstantial evidence, or reasonable inferences from such evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986); Roberson v. State, 16 S.W.3d 156, 167 (Tex.App.-Austin 2000, pet. ref'd). In a circumstantial-evidence case, it is unnecessary for every fact to point directly and independently to the defendant's guilt; rather, it is sufficient if the finding of guilt is supported by the cumulative force of all the incriminating evidence. Powell v. State, 194 S.W.3d 503, 507 (Tex.Crim.App. 2006). Appellant argues the evidence is legally insufficient to support the conviction on the November 29, 2004 robbery because the "only nexus to [appellant] was the weapon found some two months later." Appellant asserts that due to the passage of time between the two robberies, "little more than speculation supports the hypothesis that [appellant] owned the weapon in November 2004." McCoy testified the robber had black skin and was exactly the same size as appellant. Both robberies were of an Auto Zone store shortly before the store's closing time. Finally, the jury viewed the security tapes of both robberies and could have inferred the same individual committed the robberies based on the robber in each tape being the same size, wearing the same or similar clothes, carrying the same gun, using the same or a similar bag to contain the stolen money, and giving similar orders to the employees. Finally, the bullets the robber fired at McCoy during the November 29, 2004 robbery were fired from the gun used in the January 31, 2005 robbery. The evidence appellant was the perpetrator of the November 29, 2004 robbery was all circumstantial. However, the lack of direct evidence is not dispositive of the issue of appellant's guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Circumstantial evidence is as probative as direct evidence in establishing appellant's guilt and alone is sufficient to establish guilt. Id. Based on the cumulative force of the incriminating evidence, we conclude a rational jury could have found beyond a reasonable doubt that appellant committed the first robbery. We overrule appellant's first point of error in cause number 05-07-01510-CR.Hearsay Evidence — Cause No. 05-07-01511-CR
In one point of error, appellant argues the trial court erred by overruling appellant's hearsay objection to Andrews's testimony that Miguel Gaona was working at the Columbia Avenue Auto Zone on the night of the January 31, 2005 robbery and admitting the testimony as a business record. In reviewing a claim the trial court erred by admitting hearsay evidence under an exception to the hearsay rule, we look at whether the trial court clearly abused its discretion. Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008). To reverse the trial court's decision, we must conclude the trial court's ruling is so "clearly wrong as to lie outside the zone within which reasonable people might disagree." Id. If we conclude the trial court erred by admitting the evidence, we must review whether the admission of the inadmissible hearsay harmed appellant. See Tex. R. App. P. 44.2(b) (requiring reviewing court to disregard non-constitutional error that does not affect a criminal defendant's substantial rights); Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App. 2004). We must deem the error harmless if, after reviewing the entire record, we are reasonably assured the error did not have a substantial and injurious influence on the jury's verdict. Garcia, 126 S.W.3d at 927. Appellant contends Andrews's testimony was hearsay because it was based on records Andrews reviewed before coming to trial. Appellant argues he was harmed by the admission of the evidence because, without Andrews's testimony, the State would have failed to prove the money was stolen from "Miguel Gaona," the complainant named in the indictment. Assuming, without deciding, that Andrews's testimony was inadmissible hearsay, we conclude appellant was not harmed by its admission. To convict appellant of aggravated robbery, the State was required to prove he committed robbery and either caused serious bodily injury to another or used or exhibited a deadly weapon. See Tex. Penal Code Ann. § 29.03 (Vernon 2003). The complainant's name is not a statutory element of the offense. Fuller v. State, 73 S.W.3d 250, 254 (Tex.Crim.App. 2002) (state law does not define victim's name as substantive element of offense). Therefore, the State was not required to prove appellant robbed "Miguel Gaona" before the jury could convict appellant. See id. at 253. Because any error in the admission of the evidence was harmless, we overrule appellant's first point of error in cause number 05-07-01511-CR.Improper Jury Argument — Both Causes
In his second point of error in each case, appellant asserts the prosecutor made improper jury argument by striking at appellant over counsel's shoulders. In the State's closing argument, the prosecutor stated:Defense attorneys get up here every day, and the only way that — and what they try to do is poke holes in our case. Reasonable doubt, reasonable doubt, reasonable doubt. Why? Because that is all they have. That is all they have to try to get this guy a not guilty. That's it. They have nothing else.
And that's what he's doing here, and I don't want you to lose sight of that.Defense counsel objected to the argument "to the extent [it was] an improper attack on an attorney as opposed to arguing the facts of the case." The trial court overruled the objection, noting "the jury has heard the evidence. They'll make that determination." Appellant contends the argument attacked defense counsel as a "deceiver." Permissible jury argument generally falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of counsel; or (4) a plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex.Crim.App. 2009), pet. for cert. filed, (No. 08-8922, Feb. 23, 2009). Argument that "strikes at a defendant over the shoulders of defense counsel is improper." Gallo v. State, 239 S.W.3d 757, 767 (Tex.Crim.App. 2007), cert. denied, 128 S.Ct. 2872 (2008). A prosecutor risks improperly striking at a defendant over the shoulders of counsel when the argument refers to defense counsel personally and when the argument explicitly impugns defense counsel's character. Brown, 270 S.W.3d at 572; Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). Here, defense counsel's closing argument focused on whether there was reasonable doubt that appellant committed the two robberies. The vast majority of the prosecutor's closing remarks focused on the evidence in the case. The prosecutor then used her summation to respond to defense counsel's suggestion there was reasonable doubt that appellant committed the offenses. The prosecutor's remarks did not suggest fraud, dishonesty, or deceit on the part of opposing counsel and were merely responsive to the arguments made by the defense. The prosecutor's remarks fell within the bounds of permissible jury argument and did not strike at appellant over the shoulders of defense counsel. See Brown, 270 S.W.3d at 572 (prosecutor can properly respond to defense arguments). Appellant's second point of error in each case is overruled. We affirm the trial court's judgments.