No. 05-07-00276-CR
Opinion issued April 10, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-53345-MR.
Before Justices Whittington, RICHTER, and MAZZANT.
Opinion By Justice MAZZANT.
Hubert Antione Sharpe was convicted of aggravated robbery and sentenced to fifteen years in prison. In four issues, he alleges violations of due process and legal and factual insufficiency. For the following reasons, we affirm the trial court's judgment.
Background
On May 11, 2005, appellant asked a neighbor, Janice Gay, to drive him to Walgreens to pick up a prescription. Gay drove appellant to Walgreens with her son and niece in the front seat and her husband, Jimmy Sykes, in the back seat with appellant. When they arrived at Walgreens, appellant went inside alone and asked the cashier, Joanna Edd, for a pack of cigarettes. As Edd turned around to get the cigarettes from behind the counter, appellant told her "it was robbery" and pulled a gun out of a tan holster. Edd testified that the gun was pointed directly at her. Appellant also threatened Edd as she tried to open the register, saying, "Hurry up or I'm going to shoot." After Edd opened the register, appellant leaned over the counter, grabbed the money, and walked out of the store. Another Walgreens employee, Lisa Smith, was folding tee shirts when she saw appellant enter the store, approach Edd's register, and ask for cigarettes. Smith saw appellant pull a handgun out of a holster and keep it on the counter until he took the money from the resiger and left the store. After appellant left the store, Smith called the police. Appellant walked to Gay's car and was getting in when Sykes and Gay noticed people at the entrance to the Walgreens "writing something down." Sykes, Gay, and the children got out of the car to "see what was wrong." Appellant then got out of the car and walked away. Sykes testified that appellant was an acquiantance with whom he had spoken only a few times before the robbery. He also testified that he did not know appellant had any weapons on him when they drove to Walgreens and that when he found out about the robbery he felt "angry and mad because [his] family was in there." After talking to police officers, Gay, Sykes, and the children returned to their home. Sykes claimed they later discovered "a gun holster in the back seat of the floor board with . . . a hammer in it." It was a claw hammer with a black head and was located where appellant had been seated. Sykes called the police and was told to discard the item. He complied. Sykes could not remember the name of the officer he spoke with but thought it was the same officer he spoke to at the Walgreens. Gay also recalled seeing a holster containing what she believed was a hammer in the vehicle's back seat after returning from the Walgreens. She called the police and the officer told her to look into the holster "and if it wasn't a gun [to] just throw it away." Appellant admitted he was the person shown robbing the Walgreens in the video tape from the store's surveillance camera. Appellant explained, however, that he only robbed the Walgreens because Sykes, who was a drug dealer, had been pressuring appellant to repay a $275 debt. Appellant told Sykes he had prescriptions for Hydrocodone, Soma, and Diazepam, and that he knew someone who would buy the medications. However, it was too soon for the prescriptions to be refilled. On the day of the robbery, Sykes told appellant he did not care how appellant did it, but appellant needed to come up with the money "one way or the other." Appellant claimed Sykes gave him a brown zip-up satchel shortly before he entered the store. Although he never opened it, appellant eventually realized the satchel contained a "little hammer." Because it was too soon to refill the prescriptions, appellant stopped at the counter and "pretended" as if it was a robbery. He said he threatened Edd with the words "this is a robbery" because of the pressure he was under with Sykes, but he denied threatening to kill Edd. Appellant claimed he "never aimed nothing at nobody" during the robbery and that he just "held the pouch" to make Edd believe he had a gun. After grabbing the money, appellant walked back to the car. He got into the back seat and gave the money to Sykes. He put the leather pouch on the floorboard. Appellant then got out the car and walked to his father's house, which was "[a]bout two or three blocks" away. In addition to accepting responsibility for the offense and admitting he was wrong, appellant also admitted that he had a previous conviction for robbery. Appellant waived his right to a jury trial. He also pleaded true to an enhancement paragraph alleging a prior robbery conviction. After convicting him of aggravated robbery, the trial court entered an affirmative finding that appellant used or exhibited a firearm during the commission of the offense, found the enhancement paragraph true, and sentenced appellant to fifteen years in prison. Discussion
Legal Sufficiency In his first issue, appellant argues the evidence is legally insufficient to sustain the conviction because the evidence does not show that the complainant, Joanna Edd, was the "owner" of the money, as alleged in the indictment. Standard of Review In evaluating a legal sufficiency challenge, 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, 319 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Applicable Law A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003). A person commits aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Id. § 29.03(a)(2). A person commits theft by unlawfully or knowingly appropriating property with intent to deprive the owner of the property. Id. § 31.03(a). The Texas Penal Code defines the word "owner" as a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Id. § 1.07(a)(35)(a). The issue of "ownership" is intended to protect all ownership interests in property from criminal behavior. See Freeman v. State, 707 S.W.2d 597, 603 (Tex.Crim.App. 1986). Application of Law to Facts Citing Freeman v. State, 707 S.W.2d 597 (Tex.Crim.App. 1986), appellant claims Edd's position as a cashier is insufficient to sustain the indictment's allegation of ownership absent a showing that she exercised some degree of care, custody, control, or management over the property allegedly stolen. In Freeman, the defendant worked as a salesclerk for the business entity that owned the stolen merchandise while the alleged "owner" was the security manager employed by the same entity. Id. at 600-01. The security manager admitted she did not own the property because she did not have a greater possessory right than the defendant. Id. at 601. The court acknowledged that the defendant "owned" the property as the term is statutorily defined because she had just as much right, if not more, to the stolen property than the security guard. Nonetheless, the court affirmed the conviction because the defendant exercised "unauthorized" control over the property. Id. at 605. The present case is distinguishable from Freeman. Unlike the defendant in Freeman, appellant had no right to possession of the money in the store's cash register. As an employee of Walgreens, Edd had a greater right to possession of the money in the store's cash register than appellant. Sherlock v. State, 632 S.W.2d 604, 608 (Tex.Crim.App. 1982); House v. State, 105 S.W.3d 182, 184 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Because Edd had a greater possessory right than appellant, she therefore "owned" the money. The evidence is legally sufficient on this matter. We overrule appellant's first issue. Factual Sufficiency In his second issue, appellant argues the evidence is factually insufficient to support the conviction. Specifically, appellant claims (1) the evidence is insufficient to show he used a firearm in the commission of the offense and (2) that the evidence is insufficient to support the trial court's rejection of the affirmative defense of duress. Standard of Review Beginning with appellant's first argument, we note that, in reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). As the fact finder in a bench trial, the trial court was free to believe some, all, or none of the evidence presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Applicable Law Proof of the use or exhibition of a deadly weapon is an essential element of the offense of aggravated robbery. Gomez v. State, 685 S.W.2d 333, 336 (Tex.Crim.App. 1985); Brown v. State, 212 S.W.3d 851, 859 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). Under the Texas Penal Code, a deadly weapon is a firearm or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(a)(17)(A), (B) (Vernon Supp. 2007). Because the indictment in this case specified the use of a firearm, the State was required to prove the use of a firearm beyond a reasonable doubt. See Brown, 212 S.W.3d at 860. Application of Law to Facts Viewing the evidence under the appropriate standard, we conclude the evidence is factually sufficient to support appellant's conviction. Appellant claims he did not use a firearm during the robbery and that he only used a hammer as if it were a handgun. The State, however, presented evidence that showed appellant used or exhibited a firearm during the robbery. As the trier of fact, the trial court could have reasonably believed the testimony of Edd and Smith and rejected appellant's testimony. See Watson, 204 S.W.3d at 425; Chambers, 805 S.W.2d at 461. Moreover, although Sykes and Gay testified that they found a leather holster containing a hammer, the trial court could have reasonably inferred that appellant also used a firearm when he committed the robbery. See Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 415. Duress Turning to appellant's second argument, duress is an affirmative defense requiring the defendant to prove by a preponderance of the evidence that he committed the offense "because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another." Tex. Pen. Code Ann. §§ 2.04(d), 8.05(a) (Vernon 2003); Guia v. State, 220 S.W.3d 197, 205 (Tex.App.-Dallas 2007, no pet.); Edwards v. State, 106 S.W.3d 833, 843 (Tex.App.-Dallas 2003, pet. ref'd). To establish compulsion, a defendant must prove that "the force or threat of force rendered a person of reasonable firmness incapable of resisting the pressure." Tex. Pen. Code Ann. § 8.05(c) (Vernon 2003); Guia, 220 S.W.3d at 205; Edwards, 106 S.W.3d at 843. In reviewing a challenge to the sufficiency of the evidence to support the rejection of the affirmative defense of duress, we consider all of the evidence to determine whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Guia, 220 S.W.3d at 205. We will find the evidence factually sufficient to support the rejection of a claim of duress where the evidence shows that the defendant intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion. Tex. Pen. Code Ann. § 8.05(d) (Vernon 2003); Guia, 220 S.W.3d at 205. Application of Law to Facts Viewing the evidence under the appropriate standard, the evidence is factually sufficient to support the trial court's rejection of appellant's claim of duress. Appellant's claim of duress rested entirely on his own testimony. As the trier of fact, however, the trial court was free to reject appellant's version of events. See Chambers, 805 S.W.2d at 461; see also Edwards, 106 S.W.3d at 844. The fact that appellant presented a different verison of events does not render the State's evidence insufficient. Edwards, 106 S.W.3d at 844. Moreover, even if it believed appellant's testimony, the trial court could have concluded that any threats Sykes made were not threats of imminent death or serious bodily injury. See id. at 843. Finally, appellant admits he became indebted to a known drug dealer. Given appellant's testimony about his relationship with Sykes, the trial court could have reasonably concluded appellant intentionally, knowingly, or recklessly placed himself in a situation in which it was probable he would be subject to compulsion. See Tex. Pen. Code Ann. § 8.05(d) (Vernon 2003); Guia, 220 S.W.3d at 205. After viewing all of the evidence, we therefore conclude the trier of fact's rejection of appellant's affirmative defense of duress is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Thus, we conclude the evidence is factually sufficient. We overrule appellant's second issue. Due Process In his third and fourth issues, appellant claims the "pre-trial destruction or casting off of evidence at the order of the State in the case sub justice constitutes a denial of Due Process." Appellant's argument is based on testimony that Sykes and Gay discovered a holster containing a hammer and an unidentified police officer told them to throw it away. Appellant claims he was denied due process and due course of law under the United States and Texas constitutions because of the destruction of the "potentially useful evidence," i.e., the hammer and the holster. Preservation Reviewing the record, we find no indication appellant brought this complaint to the attention of the trial court. In order to preserve error for appellate review, an appellant must present to the trial court a timely, specific objection and obtain an adverse ruling. See Tex.R.App. P. 33.1(a); Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991); see also Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000) (explaining that even constitutional error may be waived); Alexander v. State, 137 S.W.3d 127, 130-31 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (failure to object to trial court's violations of federal and state due process rights waives appellate review of those claims). Therefore, we conclude appellant waived his complaint on appeal by failing to raise it in the trial court. See Hull v. State, 67 S.W.3d 215, 217 (Tex.Crim.App. 2002) (defendant waived due process complaint when raised for first time on appeal). Applicable Law Moreover, even if appellant had not waived this issue for appellate review, he cannot prevail. In determining whether the pre-trial destruction of evidence constitutes a denial of due process of law under the United States Constitution, the Supreme Court draws a distinction between "material exculpatory evidence" and "potentially useful evidence." See Arizona v. Youngblood, 488 U.S. 51, 58 (1988). A federal due-process violation occurs whenever a state suppresses or fails to disclose "material exculpatory evidence," regardless of whether the state acted in bad faith. Illinois v. Fisher, 540 U.S. 544, 547 (2004). Furthermore, the Supreme Court has held that, if a defendant seeks to prove a federal due-process violation based on a state's destruction of "potentially useful evidence," as opposed to "material exculpatory evidence," the defendant must show the state acted in bad faith in destroying the evidence. Fisher, 540 U.S. at 547-48; Youngblood, 488 U.S. at 57-58. In Youngblood, the Court described "potentially useful evidence" as evidentiary material "of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Youngblood, 488 U.S. at 57-58. The Texas Constitution also provides that "[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." Tex. Const. art. I, § 19. Appellant urges us to follow the approach of the Waco Court of Appeals and conclude the Texas Constitution provides a greater level of protection than the United States Constitution. See Pena v. State, 226 S.W.3d 634, 637-653 (Tex.App.-Waco, 2007, pet. granted). A number of Texas courts of appeals, however, including this Court, have held that the Texas Constitution does not provide a greater level of protection than the United States Constitution regarding the State's loss or destruction of evidence in a criminal prosecution. See State v. Vasquez, 230 S.W.3d 744, 750-51 (Tex.App.-Houston [14th Dist.] 2007, no pet.); McGee v. State, 210 S.W.3d 702, 705 (Tex.App.-Eastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex.App.-San Antonio 2005, no pet.); Jackson v. State, 50 S.W.3d 579, 588-89 (Tex.App.-Fort Worth 2001, pet. ref'd); State v. Rudd, 871 S.W.2d 530, 533 (Tex.App.-Dallas 1994, no pet.); Saldana v. State, 783 S.W.2d 22, 23 (Tex.App.-Austin 1990, no pet.). In Rudd, this Court concluded the Youngblood standard should be used to evaluate an appellant's claim that erasing a video tape violated her due process rights under the United States and Texas constitutions. Rudd, 871 S.W.2d at 534. Therefore, we will apply the Youngblood standard to the present case. Application of Law to Facts The testimony of Sykes and Gay, while uncontrovered, fails to establish bad faith by the State or an agent of the State. There is, for example, no evidence that the hammer and holster were in the possession, custody, or control of the State, nor is there evidence that these items were willfully destroyed by the State. Moreover, since the existing evidence is legally and factually sufficient to support the conviction, the evidentiary value of the hammer and holster is not readily apparent. Although appellant mentions the benefit of DNA and fingerprint analysis, he has not shown that any fingerprint or DNA evidence would have been favorable to the defense because Sykes, Gay, and appellant all admitted handling the holster and hammer. In addition, the existence of the hammer and holster do not preclude the use of a firearm in the commission of the robbery. At most, the evidence here arguably supports a finding of negligence, not bad faith. See, e.g., United States v. Jobson, 102 F.3d 214, 218 (6th Cir. 1996) (describing the police conduct in erasing a tape as "negligent, perhaps even grossly negligent," but "not a result of malice"); United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993) (holding that the government's destruction of tape recordings of conversations between the defendant and alleged coconspirators did not violate due process, despite the government's "gross negligence" in failing to preserve the tapes); see also California v. Trombetta, 467 U.S. 479, 488 (1984) (noting that "[t]he record contains no allegation of official animus towards [the Defendant] or of a conscious effort to suppress exculpatory evidence"). Thus, appellant cannot establish that the State violated his due process rights. We overrule appellant's third and fourth issues. We affirm the trial court's judgment.