No. 05-04-00232-CR
Opinion Filed June 1, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0400089-VR. Affirmed.
Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Joshua Dearle McKnight, appellant, was convicted of aggravated robbery of an elderly person. Appellant pleaded true to the enhancement paragraph and, after hearing evidence on punishment, the jury assessed his punishment at 25 years of confinement. Appellant brings five issues on appeal, which essentially argue: (1) the trial court erred when it denied his motions for mistrial; (2) the evidence is legally and factually insufficient to support his conviction; and (3) the trial court erred when it admitted improper identification testimony. We decide appellant's issues against him. The trial court's judgment is affirmed. Tex.R.App.P. 43.2(a).
I. FACTUAL AND PROCEDURAL BACKGROUND
Vidalia Trimble, the victim, a 70-year-old woman, was walking home from work. A car passed her on the road and pulled into a driveway ahead of her. Appellant got out of the car to use the telephone, then continued walking. When the victim passed the car, she saw a woman in the driver's seat and another woman laying in the back seat. Appellant approached the victim, grabbed her around the neck, pushed what she believed was a weapon into her side, and told her to give him her purse. They struggled over the purse, the purse strap broke, and the victim fell to the ground, suffering bruises and scrapes. Appellant ran away with her purse and got into the front passenger seat of a white car, and the car sped away. His sister, Shauna McKnight, was driving, and his girlfriend, Diana Malone, was in the back seat. Richard Canipe and his wife, Jimmie Canipe, saw appellant jump out of a white car, grab the victim's purse, jerk her to the ground, and then get back into the white car and speed away. The Canipes pursued the white car to get the license plate number, but were unable to see it because it had been covered with paper. During the chase, the white car turned too fast, jumped the curb, and came to a stop. Appellant got out of the white car and ran away. He looked at Mr. Canipe before he ran away. Shauna McKnight also tried to get away, but the Canipes held her until the police arrived. Diana Malone did not attempt to run away. Harry Bunch saw appellant pulling on the victim's purse and saw him flee in the white car. He also pursued the white car in his truck. After the white car jumped the curb, Bunch pulled his truck behind it so it could not move. Bunch saw appellant run away and helped the Canipes hold Shauna McKnight and Diana Malone at the scene until the police arrived. Shauna McKnight told the witnesses she did not know appellant, he had held a knife to her throat, and he made her drive him. Shauna McKnight also told the witnesses that her name was Diana Malone and appellant was her brother, David Malone. Diana Malone told the witnesses she was Chastity Ratliff. The police arrived and arrested Shauna McKnight and Diana Malone. They searched the white car and found the victim's purse and Shauna McKnight's purse, which had appellant's credit cards in it. Shauna McKnight and Diana Malone were taken to the jail where they told the police their real names. Shauna McKnight also told the police appellant robbed the victim. Later, after the police told her that appellant had been described as a Hispanic man, Shauna McKnight told her mother that the robber was a man named "Juan." While they were both in jail, Shauna McKnight wrote appellant a letter apologizing, stating that appellant was "not there" and that the robber was someone buying drugs for her. The detective prepared a photo array and showed it to the witnesses, except Bunch who stated he could not identify the robber. The victim and Mr. Canipe positively identified appellant. Ms. Canipe was only able to tentatively identify appellant from the photograph line-up. Appellant was arrested and indicted for aggravated robbery of an elderly person, which was enhanced by the prior felony offenses of retaliation and possession of a prohibited weapon. The jury found appellant guilty. Appellant pleaded true to the enhancement paragraph alleging retaliation and the State withdrew the enhancement paragraph alleging possession of a prohibited weapon. After hearing evidence on punishment, the jury sentenced him to 25 years of confinement. II. MISTRIAL
In his first and second issues on appeal, appellant argues the trial court erred when it denied his motions for mistrial. The State responds that the trial court's instructions were clearly and specifically given to the jury immediately after the objectionable answer and the same evidence was admitted elsewhere without an objection. A. Standard of Review
An appellate court reviews a trial court's decision to deny a mistrial under an abuse of discretion standard. 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)). 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)). B. Applicable Law
A mistrial is an appropriate remedy for a narrow class of highly prejudicial and incurable errors. See Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). A mistrial is only required when the impropriety is of a character that suggests that it would be impossible to withdraw the impression produced on the minds of the jury. See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). An instruction to disregard the improper statement will, in most instances, cure any error. See Martinez v. State, 17 S.W.3d 677, 691 (Tex.Crim.App. 2000) (en banc); Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996). Improper statements do not require a mistrial where the trial court sustained the defendant's objection, instructed the jury to disregard, and the error was cured by the unobjected to admission of the same evidence. See Nenno v. State, 970 S.W.2d 549, 563 (Tex.Crim.App. 1998) overruled in part on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex.Crim.App. 1999); Lee v. State, 779 S.W.2d 913, 916 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd). C. Application of the Law to the Facts
Appellant contends the trial court's instructions to disregard did not overcome the prejudicial nature of the following: (1) the detective's testimony that appellant's credit cards were found in the getaway car and that appellant was the person not in custody, which implied appellant should have been in custody; and (2) Shauna McKnight's testimony that she, appellant, and Diana Malone did drugs together on a regular basis for about a month. Appellant complains about the following testimony of the detective: STATE: Okay. Now, did you learn that any other person's credit cards were found in the getaway car?
DETECTIVE: Yes. I was advised that credit cards for [appellant] were in the vehicle, and that was the person I'd learned was not in custody.
STATE: Okay.
DEFENSE: I want to object, Your Honor, as to hearsay.
COURT: Sustain the objection.
DEFENSE: Ask the jury to disregard.
COURT: The jury'll [sic] disregard the last statement.
DEFENSE: Move for a mistrial.
COURT: That's denied.
Later, the detective testified without an objection, as follows: STATE: And where did you get the photograph of [appellant]?
DETECTIVE: The photograph of [appellant] was a driver's license photo that we had obtained from the Department of Public Safety.
STATE: Okay. And is that because he was at large, he was not in custody at that time?
DETECTIVE: Yes. That is correct.
Appellant also complains about Shauna McKnight's testimony, as follows: STATE: And the three of you did drugs together on a regular basis?
SHAUNA: Yes, for about a month.
DEFENSE: Your Honor, I'm going to object at this time to extraneous bad acts. Just as to the relevance and probative value outweighing the prejudicial — excuse me — prejudicial effect outweighing the probative value.
COURT: At this point I'll sustain the objection.
DEFENSE: Ask the jury to disregard those comments.
COURT: The jury will disregards [sic] those comments.
DEFENSE: Move for a mistrial.
COURT: That's denied.
Shauna McKnight also earlier testified, without objection, that they were committing the robbery to get money to buy cocaine and that she, appellant, and Diana Malone were using cocaine the night before the robbery. We conclude that a mistrial was not required because the statements appellant complains about were not of a character that suggested it would have been impossible to withdraw the impression they produced on the minds of the jury. See Hinojosa, 4 S.W.3d at 253. Also, the record shows that, after the trial court sustained appellant's objections to both statements, the trial court instructed the jury to disregard. See Martinez, 17 S.W.3d at 691; Shannon, 942 S.W.2d at 597. Further, the same information was elicited during other testimony without objection, curing any error. See Nenno, 970 S.W.2d at 563; Lee, 779 S.W.2d at 916. As a result, the trial court did not abuse its discretion by denying appellant's motions for a mistrial. Appellant's first and second issues are decided against him. III. LEGAL FACTUAL SUFFICIENCY
In his third and fourth issues on appeal, appellant argues the evidence is legally and factually insufficient to identify him as the perpetrator of the offense and to support his conviction for aggravated robbery of an elderly person. A. Standards of Review 1. Legal Sufficiency of the Evidence
The legal sufficiency of the evidence will be viewed 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. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42, 109 S.Ct. 285, 291, 102 L.Ed.2d 265 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998). 2. Factual Sufficiency of the Evidence
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 481; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (en banc); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. B. Applicable Law
A person commits robbery if he intentionally, knowingly, or recklessly causes bodily injury to another while committing theft. Tex. Pen. Code Ann. § 29.02 (Vernon 2003 Supp. 2004-05). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of that property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004-05). A robbery is aggravated when the person causes bodily injury to another person who is 65 years of age or older. See Tex. Pen. Code Ann. § 29.03(a)(3)(A) (Vernon 2003 Supp. 2004-05). Inconsistencies or conflicts between a witness' description of the robber to the police and trial testimony do not render identity evidence insufficient to support the conviction. See Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982). Neither a witness' inaccurate estimates of the robber's age and height, nor a defendant's denial of responsibility and another's claim of responsibility make it impossible for a rational trier of fact to find the essential elements of aggravated robbery beyond a reasonable doubt. See Jasso v. State, 112 S.W.3d 805, 808-12 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Inconsistency or mistake in a witness' statement about the location on a defendant's body of an identifying feature does render the evidence insufficient to support the defendant's conviction. See Escovedo v. State, 902 S.W.2d 109, 115 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). C. Application of the Law to the Facts
Appellant asserts that we should focus on three types of evidence that he contends raise serious concerns about the identification of him as the perpetrator. First, he argues that the victim and witnesses identified the perpetrator of the offense as a Hispanic man, but appellant is white. Second, he argues the victim said she remembered him by his eyes and that his eyes were brown, but appellant's eyes are blue/gray. Finally, Shauna McKnight, appellant's sister, who drove the getaway car testified the perpetrator was "Juan," who was buying drugs for her and Diana Malone. Conversely, the record shows that, although they had previously stated the perpetrator was Hispanic, the victim and Mr. Canipe positively identified appellant and Ms. Canipe tentatively identified appellant from the photograph line-up. The victim and Mr. Canipe also identified appellant in-court as the robber. Shauna McKnight also stated that the reason appellant was darker during the summer the robbery occurred was that appellant was working outside with his grandfather from 6:00 a.m. to 2:00 p.m. The record also shows that, although the victim stated she thought appellant's eyes were brown, she also stated she did not know or care what color they were because she remembered his eyes. She also stated his eyes may be gray, but appellant's eyes are the eyes of the man who robbed her, and she will not forget them. The victim testified she had no doubt in her mind appellant was the man who robbed her. Further, the record shows that, although Shauna McKnight told her mother that the perpetrator was "Juan," she admitted she said this after she had learned the witnesses had said the robber was Hispanic. And, despite her conflicting stories ( i.e., the perpetrator was David Malone, "Juan," and a stranger holding a knife to her throat), Shauna McKnight also stated several times that appellant was the robber. Viewing the evidence in the light most favorable to the verdict, there was evidence identifying appellant as the robber. The victim's and other witnesses' identification of appellant as the robber was not undermined by the inconsistencies or conflicts in the witnesses' testimony relating to whether appellant was Hispanic, conflicts regarding his eye color, or appellant's denial of responsibility and Shauna McKnight's claim that the robber was a man named "Juan." Reconciliation of conflicts and contradictions in the evidence is within the province of the jury, and such conflicts will not require reversal if there is enough credible evidence to support the conviction. See Bowden, 628 S.W.2d at 784. There was sufficient evidence for a rational jury to find the essential elements of the crime beyond a reasonable doubt. Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that appellant was guilty of aggravated robbery of an elderly person. Appellant's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The evidence was neither so obviously weak that appellant's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. After reviewing all of the evidence under the appropriate standards of review, we conclude that the evidence is legally and factually sufficient to support appellant's conviction for the aggravated robbery of an elderly person. We decide appellant's third and fourth issues against him. IV. IDENTIFICATION TESTIMONY
In his fifth issue on appeal, appellant argues his conviction must be reversed because Ms. Canipe's identification testimony was improperly admitted during the trial. The State responds that the trial court did not abuse its discretion by allowing her identification testimony because her testimony was more probative than prejudicial. A. Standard of Review
An appellate court reviews a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. See, e.g., Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003); Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001); see Montgomery v. State, 810 S.W.2d 372, 379-80, 391 (Tex.Crim.App. 1990) (opin. reh'g). B. Applicable Law
When a trial court balances the probative value of the evidence against its danger of unfair prejudice, a presumption exists that favors the evidence's probative value. Feldman v. State, 71 S.W.3d 738, 754-55 (Tex.Crim.App. 2002); Montgomery, 810 S.W.2d at 389. When reviewing evidence to determine if its probative value is substantially outweighed by its prejudicial effect, an appellate court should consider the following: (1) was the probative value of the evidence, either alone or in combination with other evidence, compelling; (2) did the evidence have the potential to impress the jury in some irrational, but nevertheless indelible way; (3) what amount of time did the proponent of the evidence need to develop that evidence and did it distract the jury from considering the indicted offense; and (4) did the proponent of the evidence have other probative evidence available that would help to establish the same fact and did that fact relate to a disputed issue . See Goldberg v. State, 95 S.W.3d 345, 375 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd), cert. denied, 540 U.S. 1190 (2004) (citing Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App. 2000)). If the record reveals that one or more of those considerations led to a risk that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, then an appellate court should conclude that the trial court abused its discretion by admitting the evidence. See Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). C. Application of the Law to the Facts
Before trial, the trial court held an identification hearing. At the conclusion of the hearing, appellant objected to Ms. Canipe's testimony because her identification was tainted by a prior photograph line-up, it was a tentative identification, rather than positive, and its prejudicial nature outweighed its probative value. The trial court sustained appellant's objection with respect to her in-court identification of appellant. During the trial, the State introduced the testimony of Ms. Canipe with regard to her tentative identification of appellant in the photograph line-up. Appellant reurged the objection he made during the pretrial hearing and the trial court overruled his objection. Appellant contends the prejudicial nature of Ms. Canipe's uncertain identification testimony outweighed its probative value because the State used it to bolster its case, it made an impression on the jury in an indelible way, and, although it did not take much time to put on her testimony, it was not needed because there was already identification testimony. First, we evaluate whether the evidence was compelling. Ms. Canipe's tentative identification tends to disprove appellant's defense that the perpetrator was someone else. Accordingly, we conclude the evidence is compelling. Second, we evaluate the potential of the evidence to irrationally impress the jury. Ms. Canipe's tentative identification did not confuse or mislead the jury. Before Ms. Canipe testified, the jury heard that both the victim and Mr. Canipe positively identified appellant from the photograph line-up and their in-court identification. Further, the jury heard Shauna McKnight's testimony that she had stated several times that appellant was the perpetrator. Given the nature of the other identification evidence, we cannot conclude that Ms. Canipe's tentative identification was inherently inflammatory or that it was likely to create such prejudice in the minds of the jury that it would have been unable to limit its consideration of the evidence to its proper purpose. Third, we evaluate the time needed to develop the evidence, and whether the jury may have been distracted from considering the indicted offense. Appellant concedes that it did not take much time to develop Ms. Canipe's identification testimony. Also, the development of this evidence did not distract the jury from considering the indicted offense because the jury had already heard the identification testimony of the victim, Mr. Canipe, and Shauna McKnight. See Manning v. State, 114 S.W.3d 922, 928 (Tex.Crim.App. 2003) (regardless of time spent presenting evidence, it could not have possibly distracted the jury from the indicted offense). Finally, we evaluate the State's need for the challenged evidence. At trial, appellant raised the defensive theory that someone else robbed the victim. The record shows that during the State's case-in-chief, it did present other probative identification evidence, which tended to establish appellant's identity. The victim and Mr. Canipe identified appellant as the robber, but appellant attacked their identification based on their initial statements to police that the robber was Hispanic. Also, Shauna McKnight's identification of appellant as the robber was tainted by issues relating to her credibility and the fact that she changed her statement, instead identifying "Juan" as the robber during cross-examination. Accordingly, the State needed Ms. Canipe's tentative identification testimony to help prove the contested issue of identity. Balancing the prejudicial nature of the evidence against its probative value, we conclude that the trial court did not abuse its discretion by admitting Ms. Canipe's tentative identification testimony. Appellant's fifth issue is decided against him. V. CONCLUSION
We conclude the trial court did not abuse its discretion when it denied appellant's motions for mistrial. We also conclude the evidence is legally and factually sufficient to support appellant's conviction. Finally, we conclude the trial court did not abuse its discretion by admitting tentative identification testimony because the prejudicial nature of the evidence did not outweigh its probative value.