Opinion
14-20-00743-CR
08-18-2022
DION ANTHONY RUFFINS, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish - Tex.R.App.P. 47.2(b).
On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause No. 19CR1235
Panel consists of Chief Justice Christopher, Justices Zimmerer and Wilson
Justice Zimmerer concurs without opinion.
Randy Wilson Justice
Appealing his felony conviction for aggravated robbery of a Galveston convenient store that resulted in a 45-year prison sentence, appellant Dion Anthony Ruffins, complains that evidence presented at trial is both legally and factually insufficient to support his conviction. He argues that there is a dearth of evidence pinning him as the assailant. Appellant also complains that the trial court erred during the punishment phase when it overruled his improper-plea-for-law-enforcement objection to remarks made by the prosecutor in closing. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
No one disputes that an armed robbery occurred at the Ferry Road Food Market in Galveston. The issue is whether appellant was the assailant.
There were two key events on the night of April 12, 2019. The first, according to the State, was an attempted robbery. A red Lexus pulled in front of the convenience store. Donald Ziegler got out of the car and went into the store. The door automatically locked behind him. Very shortly afterward, a masked man came up to the door and tried to open it. The door was locked and he couldn't get in. He waved his arms as if to be communicating to someone in the vicinity and then left toward behind the store. Shortly after that, Ziegler left without buying anything. Minutes later appellant appeared unmasked walking toward the entrance of the store wearing shoes like the masked man had worn. Appellant waved in the direction of Zeigler in the red car. Then appellant entered the store walked around the store for less than a minute and then left.
After observing the surveillance videos from other angles available, police determined "There was nobody there that he was talking to."
The second event was the actual armed robbery that occurred about 20 minutes later. Again, Ziegler got out of the red Lexus. A customer was inside the store. After the customer paid for his goods and walked to the door, the store cashier pushed the remote door unlock button and the customer exited and Ziegler entered. Immediately thereafter, Ziegler got down on the ground and a masked gunman entered and robbed the store. Complainant Jaison Chacko worked at the Ferry Road Food Market in Galveston as a cashier. The masked man pointed a gun at Chacko, the cashier and demanded that Chacko remove money from the cash register and hand it over. Chacko complied and the gunman fled.
Appellant was indicted for aggravated robbery and pleaded "not guilty." At the conclusion of the evidence and arguments by the parties, and after the jury deliberated on the issue of appellant's guilt or innocence, it announced guilt-verdict for aggravated robbery.
Appellant pled not true to the first enhancement which alleged he was convicted of a robbery in 1996. Appellant also pled not true to the second enhancement which alleged he was convicted of another robbery in 2006. The jury was informed that a "true" finding to each yielded a sentence range from 25 years to life.
William Kilburn of the Galveston County Sheriff's Office Forensic Services Unit testified he compared appellant's known fingerprints to other criminal judgments associated to appellant. Using appellant's fingerprints or in some cases other available identifying information, Kilburn matched appellant to five prior misdemeanor convictions (theft, evading arrest, harassment and two cases of assault causing bodily injury), and several felonies (robbery, evading arrest). During closing arguments, appellant objected that the prosecutor made an improper plea for law enforcement.
After deliberating the jury assessed appellant's punishment at 45-years confinement in the Texas Department of Criminal Justice. At the conclusion of trial, on September 30, 2020, the court signed a judgment in accordance with the jury's verdict.
II. SUFFICIENCY OF THE EVIDENCE
In evaluating a challenge to the sufficiency of the evidence supporting a criminal conviction, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the jury resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
We measure sufficiency to support a conviction by comparing the evidence presented at trial to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge reflects the governing law, the indictment, the State's burden of proof and theories of liability, and an adequate description of the offense for the particular case. Id.
The indictment alleged that appellant "on or about the 12th day of April 2019, . . . while in the course of committing theft of property, and with intent to obtain and maintain control of the property, intentionally or knowingly threaten and place Jaison Chacko in fear of imminent bodily injury and death, and the defendant did then and there use and exhibit a deadly weapon, to-wit: firearm."
One commits the offense of aggravated robbery if one commits robbery and uses or exhibits a deadly weapon. Tex. Penal Code § 29.03(a)(2). One commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, one intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code, § 29.02(a)(2). A deadly weapon is "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury," or, "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code, § 1.07(a)(17).
The State must prove beyond a reasonable doubt that the accused is the person who committed the charged offense. Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984). A defendant's identity and criminal culpability may be proved either through direct or circumstantial evidence, coupled with all reasonable inferences from that evidence. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Fang v. State, 544 S.W.3d 923, 928 (Tex. App.-Houston [14th Dist.] 2018, no pet.). Extraneous offenses may be used to prove the identity of the perpetrator when identity is an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996) (holding extraneous offense evidence is admissible to show identity where the extraneous offense is sufficiently similar to the charged offense by proximity in time and place.); Segundo v. State, 270 S.W.3d 79, 88-89 (Tex. Crim. App. 2008) (discussing the admission of extraneous-offense evidence to prove identity of offender and finding relevancy is usually that of modus operandi in which the pattern and characteristics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a signature).
A. Legal Sufficiency
In his first issue appellant generally challenges the legal sufficiency of the evidence to support his conviction. The thrust of his complaint is that there was a deficiency in evidence identifying appellant as the perpetrator.
Officer Condy reviewed the video footage from the store on the night of the robbery, including footage taken before the robbery, to help him identify suspects. He explained based on his experience, that he knew that before a robbery, people will often conduct surveillance of the target location.
Tracking his observations from the video surveillance, Condy drew the jury's attention to a sequence of events, two episodes, each involving particular attention to two individuals, occurring at the store in less than a half-hour from one another.
The first occurrence, the "attempted robbery"
The first occurrence, roughly of eight-minute duration, started with a red vehicle rounding behind the store, then parking in a parking space near the front of the store. The police later identified the driver as Donald Zeigler and the car as a red Lexus. Video showed Zeigler got out of the Lexus, walked to the front door of the store, and was admitted into the store. Contemporaneous video shows another darkly-masked man, wearing the two-tone blue cap, a red and black hoodie, a right fingerless dark glove, black shoes with white toes and arches, and wearing a backpack walk in front of the red Lexus and to the front door of the store. After Zeigler was in the store, the darkly-masked man reached the door which had just closed and automatically locked. He covered his left hand with the sleeve of the hoodie and tried to open the store's door. Looking at still images from the videos taken during this time frame, the detective testified that it depicted an "attempted robbery, an individual trying to make entry to the store . . . . at 3:37:47." When the door did not open, the man appeared to point toward something, waved his arms, and then walked away from the door headed in the opposite direction from which he came. Two minutes later, the same video shows Zeigler leave the store, get into the red Lexus, and drive away.
The detective also testified the red car was a Lexus and was distinctive because there wasn't a front plate and there was no registration sticker on the windshield. This led the detective to believe there was a paper plate, as if the car was recently purchased.
Another camera angle showed that after the masked man walked away from the door and shows Zeigler's activity in the store during this period. Zeigler walks back into view of the camera, walks around, and then leaves the store without buying anything.
Condy testified about a focused-in shot of the attempted robber's shoes, revealing a distinct pattern of white on the arch of the foot and the toe, with a light-colored symbol on the tongue.
(Image Omitted)
The detective testified about the video tracking the masked attempted robber who left, explaining that it shows the man walk to the street in the back (away from the direction he had first appeared) and showing the man turn to walk behind the store. The detective explained that it was only a short distance from the point where the masked man left the view of the camera to walk around the back of the store and emerge on the other side of the store. A masked man did not emerge on the other side of the store, but within a three-minute timespan a man the detectives could identify as appellant emerged wearing shoes of a "familiar" appearance as those worn by the masked man.
The video shows appellant come to the front of the store and wave in the direction where Zeigler drove appellant's car. Appellant knocked on the door and then was admitted into the store. Appellant was wearing black shoes, with white on the toes and the arches. Appellant left the store less than a minute of entering it without buying anything.
(Image Omitted)
Detective Condy agreed the clothing worn by the masked man in the first incident was different from the man seen three minutes later (who he identified as Appellant), but explained that nothing prevented the masked man from changing clothes in the 3-minute timespan from walking around one side of the building and returning to the other side of the building. Some of clothes the masked man was wearing matched the appearance of clothes in a backpack found near the area from which appellant emerged. Detective Condy testified, based on the clothing, he believed the masked man at the store's door was the same person that came around the corner from the bushes.
The second occurrence-the aggravated robbery
The next occurrence, the aggravated robbery, occurred roughly twenty-two minutes after appellant is seen leaving the store. Looking at a video from the outside corner of the store, facing the last gas pump, next to the apartment office, Condy explained the video shows the red Lexus pull up to the gas pump, a person (later identified as Zeigler) got out of the Lexus, and walked toward the store. Then an individual emerged from the shadows of the apartment office next to the gas pump. The video shows the person run from the corner of the apartment and to the corner of the store. The person wore a dark-colored mask, a light-colored hat, a light-colored shirt, dark pants, dark shoes, a dark right-handed glove, and carried what appeared to be a silver handgun in his right hand.
Another video shows a customer inside the store walk to the front door and wait for Chacko to remotely unlock the door. As the customer walked through the front door, Zeigler, looking down at his wallet, approached the door. As Zeigler entered the door, he hesitated in the doorframe. Then Zeigler immediately got on the ground to the left of the door, in front of the cash register. As Zeigler hesitated at the door and then got on the ground, the masked, armed man ran up to the door. The robber bumped the customer and entered the store. The robber wore a right-handed fingerless glove and carried a silver handgun in his right hand. The robber ran through the store with the gun aimed.
Looking at still images taken from the surveillance video, Condy identified the aggravated robber's clothing. He told the jury the that the robber's shoes were different than the shoes focused on in the earlier images. The shoes were black without significant detail. Looking at another still image, Condy testified it showed the robber wore a fingerless glove on his right hand. Because the detective could see the robber's left wrist and thumb, he didn't believe the robber wore a left-handed glove.
As the video continued to play, it shows Chacko reach for something by the cash register and hold the item out. Then the video shows the robber leave the store with the gun in his gloved right hand and something in his left hand.
Car, Clothing, DNA Evidence
Detective Condy testified that he drove the area looking for suspects or anything of interest and spotted Zeigler within two blocks of the robbed store at another apartment complex. Also at the apartment complex, the police found a red Lexus with paper plates. It appeared to be the same car Zeigler twice drove to the robbed store. The Texas Department of Motor Vehicles showed the red Lexus was registered to appellant and the address of the registration was the apartment complex where the car and Zeigler were found.
After obtaining a search warrant for the apartment, the police discovered a black left-hand fingerless glove (but not a right-handed glove) and three pair of black shoes. One pair appeared to have the same characteristics as worn by the attempted robber and later appellant, and another shoe appeared like the she worn by the aggravated robber. Sergeant Dagle testified, "I would say that the totality of the circumstances would lead me to believe that those are the shoes" that were worn in this incident.
(Image Omitted)
The police also discovered shoes that appeared similar to the shoes worn by the attempted robber and Ruffins.
(Image Omitted)
The items retrieved from the backpack were tested, and the State's forensic expert testified that the DNA from the blue ball cap was consistent with appellant and with Zeigler. She also testified about the high probability that the DNA from the hoodie came from appellant: "The probability of obtaining this profile if the DNA came from Dion Ruffins is 906 quadrillion times greater than the probability of obtaining the profile if the DNA came from an unrelated, unknown individual." Thus, the DNA profile evidence obtained from the clothing connects appellant to the attempted robbery and further links appellant to Zeigler.
The sequence of events shows appellant and Zeigler engaged in a unique pattern of behavior in first attempting to and then robbing the store. Segundo, 270 S.W.3d at 89. The short amount of time between a nearly identical sequence of events provided evidence the jury could have reasonably relied on to conclude appellant and Zeigler were working together to complete an aggravated robbery. Just like the attempted robber, the aggravated robber wore a dark face covering, a hat, a right-handed fingerless glove, and carried a silver handgun in his right hand. The disguises provide additional evidence showing a distinctive mode to commit a robbery.
Though we have been directed to focus on his identity, we have considered all of the required elements the state was required to prove to convict appellant of the charged offense. Under the applicable standard of review, a rational trier of fact could have found beyond a reasonable doubt that appellant was the attempted and aggravated robber working with Zeigler and intentionally threatened the complainant with fear of imminent bodily injury or death, by using and exhibiting a deadly weapon, in the course of committing theft and with intent to obtain or maintain control of the property. See Segundo, 270 S.W.3d at 89; See also Thomas v. State, 36 S.W.3d 709, 711 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd) ("The State is not required to show that a firearm was operable or even loaded."); See Johnson v. State, 509 S.W.3d 320, 324 (Tex. Crim. App. 2017) (finding that a jury reasonably could have inferred that a butter knife, based on the wielder's threats, proximity to the complainant, the brandishing of it, the manner used, or intended to be used "rendered it capable of causing serious bodily injury or death."). Finding no merit in appellant's challenge to the sufficiency of the evidence supporting his conviction for aggravated robbery, we overrule appellant's first issue.
B. Factual Sufficiency
In his second issue, appellant recognizes that our State's jurisprudence does not require a factual sufficiency review but nonetheless argues such review is required. Though we do not discourage litigants from asserting complaints contrary to existing precedent when accompanied by well-reasoned grounds for a modification or change in the existing precedent, we have recently addressed and rejected such a request. Lee v. State, No. 14-19-00402-CR, 2021 WL 1185003, at *1-2 (Tex. App.-Houston [14th Dist.] Mar. 30, 2021, no pet.); Mayer v. State, 494 S.W.3d 844, 848 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd). In the absence of any new developments in the law since we last addressed the matter or other unusual circumstance, we decline to revisit the issue in this case, and we overrule appellant's second, factual sufficiency, issue. Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) (plurality op.).
We overrule appellant's second issue.
III. OBJECTION TO JURY ARGUMENT
In his third issue, appellant complains that the trial court erred when it overruled appellant's objection to the prosecutor's remark during jury argument that the state made an improper plea for law enforcement.
Permissible jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007); Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000). Even when an argument lies outside these approved areas, it will not result in reversal unless, in light of the record as a whole, it is "extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding." Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Counsel's remarks during final argument must be considered in the context in which they appear. Batalla v. State, 533 S.W.3d 374, 376 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd).
During punishment the prosecutor made the statement:
What is going to happen after this trial. You don't have to talk to anybody about this if you don't want to. But you can. And people may ask you about your verdict. What is going to happen if you give 25 years or 30 years or 40 years and people ask what was the case about. Well, it was his fourth robbery.
Appellant's counsel objected, "That's an argument that makes an improper plea for law enforcement." Presumably only agreeing in part, the prosecutor replied, "It's a plea for law enforcement." Court interjected: "It's a plea for law enforcement. What's improper about that?" In a brief attempt to explain, appellant's counsel stated, "Talking about the public."
The trial court overruled the objection and the prosecutor continued along the lines of a plea-for-law-enforcement. Recalling appellant's prior robberies, he asked "How many robberies do you have to commit before we finally sentence you to the maximum?" and ultimately asked that the jury assess appellant a life sentence.
The State contends that appellant failed to preserve his current argument characterizing the prosecutor's statement as seeking a community verdict. Though a greater degree of specificity would have been preferred at trial, given the context of appellant's objection, we believe the court was sufficiently aware of an objection that the state had made an improper plea for law enforcement, that it was impermissible jury argument, and that it fell among the line of "community verdict" cases it has briefed on appeal involving a plea to accommodate "public" demand or expectations. Tex.R.App.P. 33.1.
Both parties have aptly briefed the issue and provided a line of cases within which they respectively contend involve facts that fit this case. The cases cited by appellant involve jury arguments where the State told the jury that their community demanded a specific verdict. See Cox v. State, 247 S.W.2d 262, 263 (Tex. Crim. App. 1951) ("The people of De Soto are asking the jury to convict this defendant."); Pennington v. State, 345 S.W.2d 527, 528 (Tex. Crim. App. 1961) ("The people of Nueces County expect you to put this man away."); Woolly v. State, 247 S.W. 865, 865 (Tex. Crim. App. 1923) (the State argued the jury ought to convict the defendant because the "evidence warrants it, and because the people of Denison desire it."); Porter v. State, 226 S.W.2d 435, 436 (Tex. Crim. App. 1950) ("The people of this community expect you to put this man away, and the only way you can do it is to send Willie Porter to the electric chair."); Hazzard v. State, 15 S.W.2d 638, 639 (Tex. Crim. App. 1929) ("The eyes of Comanche County are upon you. Look at this crowd in this court room, and a crowd has been here all during this trial. The will and wish of every law abiding citizen of Comanche County wants a verdict of death."); Prado v. State, 626 S.W.2d 775 (Tex. Crim. App. 1982) ("There are over a million people that stand between him and the penitentiary. They'd want him to go there if they knew what he did."); Cortez v. State, 683 S.W.2d 419, 420 (Tex. Crim. App. 1984) ("Now, the only punishment that you can assess that would be any satisfaction at all to the people of this county would be life [imprisonment].").
The authority in support of the State's position are cases where the prosecutor makes reference to the community and the impact of the verdict within the community but does not express or imply that the community demands a particular verdict. Whittington v. State, 580 S.W.2d 845, 847 (Tex. Crim. App. 1979) ("you will want to give them an answer you can be proud of, that your friends and neighbors can be proud of"); Bell v. State, 724 S.W.2d 780, 801 (Tex. Crim. App. 1986) (The prosecutor told the jury to "think about talking to your friends and your neighbors . . . . and they will ask you, and remember and think about how they will ask you at the end of [the] case when it's all over"); York v. State, 258 S.W.3d 712, 718 (Tex. App.--Waco 2008, pet. ref'd) (comment asking jury "what it is that you want the newspaper to say when you open up the newspaper tomorrow and you get to tell your friends or family" about the result was proper plea for law enforcement); Dickson v. State, 05-14-01061-CR, 2016 WL 772766, *7-8 (Tex. App.--Dallas February 29, 2016, no pet.) (prosecutor telling the jury that once the judge releases them from service, their friends and family may ask them what sentence they gave and the jury will tell them they gave a life sentence, was proper, didn't assert or imply that the community demanded or expected a specific outcome, and the trial court could've reasonably concluded the argument was a permissible plea for law enforcement.); Bradley, No. 01-13- 00133-CR, 2014 WL 768328, at *5-6 (prosecutor's argument - "Y'all are the conscience of this community. You decide what is allowed in this community. You decide is this the type of person you want roaming the streets[?] At some point in time, you'll be able to talk about this trial. Your friends and family will ask you about this case and they will ask you what you did." - was proper argument to the jury to act as the voice of the community and constituted a proper plea for law enforcement.); Ponce-Rivera, 01-09-00843-CR, 2010 WL 3928530, *3 (Tex. App.--Houston [1st Dist.] October 7, 2010, no pet.) (State telling the jury that their spouses, family, and co-workers would inquire about the details of the case and the result the jury reached was not improper argument because it's common knowledge the community will be curious about the juror's experience).
The cases presented by the State are decidedly more like today's case than those presented by appellant. In this case, the State told the jury they did not have to speak to anyone about the case, but that they were not prohibited from that and their friends and neighbors might ask questions about the case and their punishment verdict. The jury was not told that the community or the public demanded or expected any particular verdict, but a verdict that the jurors could "proudly", or at least reasonably, explain to friends, neighbors and family. See Whittington, 580 S.W.2d at 847; Bell v. State, 724 S.W.2d at 801. The trial court did not abuse its discretion in its decision to overrule appellant's objection.
We therefore overrule appellant's third issue.
III. CONCLUSION
Appellant's three issues provide no basis for appellate relief. Accordingly, we affirm the trial court's judgment.
Zimmerer, J. concurs without opinion.