Opinion
NO. 14-15-00657-CR
03-14-2017
DUSTIN JAMES STEVENS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court Galveston County, Texas
Trial Court Cause No. 13CR2405
MEMORANDUM OPINION
A jury convicted appellant, Dustin James Stevens, of aggravated robbery. After he pled true to the enhancements, the trial court sentenced him to confinement in the Institutional Division of the Texas Department of Criminal Justice for thirty years. From that conviction, appellant brings this appeal claiming the evidence identifying him as the perpetrator is insufficient and the admission of testimony from his mother violated her constitutional rights. For the reasons stated below, we affirm.
I. Background
On the evening of December 15, 2012, Brandon Bischof, then a senior in high school, drove two friends (Ty Kubena and Todd Walker) to attend a party at David Delacerda's house in Santa Fe, Texas. Appellant and his sister, Bailey Shulman, attended the same party. Appellant, who Bischof did not know but later identified, asked Bischof for a ride to a nearby gas station and offered to give him $20 for the ride. Bischof agreed and told his friends he would be right back.
En route, appellant directed Bischof to stop at a house for appellant to get money. Bischof pulled into the driveway and appellant instructed Bischof to turn off the engine. Appellant placed a gun against Bischof's temple and ordered him to get out of the car. Bischof grabbed the gun and appellant's wrist, pleading with appellant, "Please don't do this. Please, don't do this." Appellant punched Bischof several times as they fought inside the vehicle, causing the gun to discharge a bullet through the windshield. Bischof attempted to exit the car and appellant dove on top of him from the passenger seat. They fell on the ground outside of the car and continued to fight over the gun. The gun again discharged and appellant gained control of it. Appellant punched and pistol-whipped Bischof, "busting" his lip and knocking him unconscious.
When Bischof regained consciousness, his car and appellant were gone. Bischof crawled to a nearby house to get help. The homeowner, Peggy Allen, called 911. The police and an ambulance arrived at Allen's home.
Galveston County Sheriff's Department officers secured the crime scene and obtained information from Bischof. Thereafter, Bischof was taken to the hospital. Sergeant Michael Bell collected evidence, including a ball cap, a watch, a necklace, some red-colored stains that appeared to be blood, and a cell phone. DNA swabs were taken from the watch and necklace.
Officers then went to Delacerda's house and interviewed guests. From their interviews, it was determined that Bischof left the party with appellant. Detective James Stephenson recorded with a hand-held video recorder a statement from appellant's mother, Angela, who had arrived at the party to pick up her daughter, Shulman.
Stephenson interviewed Bischof at the hospital. Bischof did not provide the name of his attacker, but stated, "It was the guy in my car," to whom he had given a ride from the party. Bischof described his attacker to the police, as having short black hair and wearing a white shirt or a black jacket. Bischof did not recall any tattoos or scars on his attacker. Later, Bischof learned the name of his attacker from someone at the party, looked up the name on Facebook, and identified a picture of his attacker as appellant.
Approximately ten months after the robbery, in October 2013, Deputy Catherine Vernon, a forensic investigator, was dispatched to a storage facility to photograph, collect, and process evidence from a car matching the description of Bischof's. She did not take fingerprints from the scene due to the length of time since the original crime had occurred. The vehicle itself was dirty and had been stored outside. Vernon took DNA swabs of the steering wheel and interior door handle.
Appellant was charged with aggravated robbery and pled not guilty. Appellant's counsel argued there was reasonable doubt that appellant robbed Bischof. The State called Delacerda, who testified that he threw a small party on December 15, 2012. Delacerda stated that he knew Shulman and that she came to the party with her brother, appellant. Delacerda identified appellant in court. Delacerda testified that Bischof, Kubena, and a few other people also were at the party. Delacerda told the jury that Bischoff left the party with appellant because appellant asked Bischoff to take him to the gas station. Kubena also testified that appellant left the party with Bischof because appellant had requested Bischof take him to a gas station.
Bischof testified that he, Kubena, and Walker went to Delacerda's party at his house and that appellant asked him for a ride to a nearby gas station so he left the party with appellant. Bischof further testified that when he and appellant fought over the gun, he "got a good look at him." Bischof testified he later learned appellant's name from someone who had been at the party and Bischof then matched appellant's name and picture on Facebook.
Appellant's mother testified at trial that she did not recall making a videotaped statement on December 15, 2012, because she was on drugs and a "lot of her past is like a fog." Although the videotaped statement was suppressed, Angela testified that in her prior statement she said that appellant admitted he took a car, beat up the person that owned the car, and had a handgun during the fight. Angela testified that in her prior statement she said appellant took the car because he wanted to flee pending charges in Harris County.
Jennifer Young, a forensic scientist with the Texas Department of Public Safety, testified that she analyzed swabs taken from Bischof's car as well as a necklace and a watch recovered from the crime scene, and appellant's DNA was excluded as a contributor from these items.
Appellant's ex-wife, Nathanna Stevens, testified that appellant could not have committed the robbery because appellant drove his truck, wore a blue shirt, and she saw him at the house across the street from her house the night of the robbery. Nathanna further testified that in December 2012, appellant had brown hair, tattoos on his neck and hands, and scars on his face. Nathanna further testified that she communicated with Bischof on Facebook and offered him money to drop the charges against appellant.
The jury found appellant guilty of aggravated robbery. Appellant pleaded "true" to two enhancement paragraphs, and the trial court sentenced appellant to thirty years' confinement. This appeal followed.
A person commits aggravated robbery if, (1) in the course of committing theft, and (2) with intent to obtain or maintain control of property, (3) he knowingly or intentionally (4) threatens or places another in fear of imminent bodily injury or death, and (5) uses or exhibits a deadly weapon. Tex. Penal Code Ann. §§ 29.02(a), 29.03(a)(2) (West 2011). A firearm is a deadly weapon. Id. § 1.07(a)(17) (West Supp. 2015).
II. Sufficiency of the Evidence
Appellant's first issue on appeal challenges the sufficiency of the evidence to support his conviction. We hold that a rational trier of fact could have concluded beyond a reasonable doubt that appellant committed aggravated robbery.
A. Standard of Review
In reviewing the sufficiency of the evidence to support a conviction, we determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Johnson v. State, 364 S.W.3d 292, 293-94 (Tex. Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The jury is the exclusive judge of the credibility of the witnesses and the weight to be given to the evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Further, we defer to the jury's responsibility to fairly resolve conflicts in testimony, weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. This standard applies to both circumstantial and direct evidence. Id. We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
The determination of what weight to give testimonial evidence rests within the sole province of the jury because it turns on an evaluation of credibility and demeanor. Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The trier of fact may choose to believe or disbelieve any portion of a witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
B. Analysis
Appellant attacks the sufficiency of the evidence as it relates to identification of him as the perpetrator of the aggravated robbery. Appellant argues that his identification was tainted by people with motives to harm him and was generally unreliable, asserting: (1) the testimony of his mother, Angela, was "problematic due to her poor memory, drug use, and motivation to mislead the police;" (2) the testimony of his sister, Shulman, was unreliable because "she was upset with her brother and wanted him arrested;" (3) Bischof's identification of appellant from a single photograph was suggestive; (4) Bischof's identification of appellant was unreliable because he did not remember appellant's tattoos; and (5) the absence of appellant's DNA on items recovered at the scene of the crime creates reasonable doubt as to the identity of Bischof's attacker.
There was testimony at trial by Bischof that he attended a party at which appellant was present; he was asked by appellant for a ride to a gas station; he agreed to take appellant to the gas station and they left the party together; he drove appellant to a house; in the driveway of the house, he was threatened at gunpoint by appellant to get out of the car; he fought with appellant inside the car and the gun discharged; he pleaded with appellant not to rob him; he fought more with appellant in the driveway and the gun discharged again; he was hit in the head by appellant's fists and gun until he was knocked out; and when he woke up, his car and appellant were gone. At trial, Bischof testified that while struggling to gain control over the gun and pleading with appellant, he "got a very good look at him." After the incident, Bischof learned the name of the person who asked for the ride in his car and matched his name to a photograph on Facebook. At trial, Bischof identified appellant as the person who held him at gun point. This evidence is sufficient to support the verdict. See Bradley v. State, 359 S.W.3d 912, 918 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd).
With regard to appellant's complaints of Bischof's identification, Bischof's testimony standing alone is sufficient to support appellant's conviction. Bradley, 359 S.W.3d at 918; Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd). Although appellant argues that Bischof's initial physical description of him was infirm because he gave no report of appellant's tattoos or scars, we reject the notion that this undercuts Bischof's in-court identification of appellant. See Bradley, 359 S.W.3d 918 ("An imperfect description" to police does not change the fact that complainant positively identified the defendant in court.). "The jury alone decides whether to believe eyewitness testimony, and it resolves any conflicts in the evidence." Price v. State, 502 S.W.3d 278, 282 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Although appellant's ex-wife testified regarding his hair color, tattoos, scars, and the color of the shirt he wore on the night in question, the jury was not required to disregard Bischof's testimony simply because parts of it were inconsistent with other testimony. Id. at 283.
In addition to Bischof's identification of appellant as the perpetrator, there was corroborating testimony by Delacerda and Kubena that appellant, while at the party, asked Bischof for a ride to the gas station and that Bischof and appellant left the party together.
Appellant also argues that the evidence is insufficient because no DNA evidence links appellant with the crime. We find these arguments to be without merit. The jury heard the testimony of the forensic scientists excluding appellant's DNA from materials recovered from the crime scene; however, a rational jury could have found appellant guilty of aggravated robbery without physical evidence linking the accused. See Harmon, 167 S.W.3d at 614 (citing Santos v. State, 116 S.W.3d 447, 459 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd) (rejecting argument that lack of fingerprint or DNA evidence connecting appellant to robbery rendered evidence insufficient to support conviction)).
Appellant also challenges the reliability of his mother's testimony that appellant admitted to her that on the night of the party he took a car, beat up the person who owned the car, and had a handgun during the fight. Angela testified she did not remember anything due to her drug use and poor memory. Because the jury is the sole judge of the credibility of the witnesses and the strength of the evidence presented, we will not disturb its decision. See Price, 502 S.W.3d at 283; see also Villani v. State, 116 S.W.3d 297, 301 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd.). We do not sit as the thirteenth juror and may not substitute our judgment for that of the fact finder by re-evaluating the weight and credibility of the evidence. Isassi, 330 S.W.3d at 638.
Appellant further argues that the State used the identification of the perpetrator by his sister to secure his conviction. This is based on appellant's theory that his sister showed his Facebook picture at the party, or after the party, implicating him in the aggravated robbery. The only inference the jury could have made in this regard was from Kubena's testimony when he was asked how he learned what appellant looked like. Kubena testified, "she [Bailey] just showed me a picture of him because I couldn't—it was darker so—." Bischof testified that "someone" showed him a picture of appellant on Facebook. Contrary to appellant's contention, this testimony does not change the fact that Bischof testified unequivocally that he got a very good look at appellant when he pleaded with him not to rob him. Bischof's identification is sufficient to support appellant's conviction. See Bradley, 359 S.W.3d at 918; Harmon, 167 S.W.3d at 614.
On this record, viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have concluded beyond a reasonable doubt that appellant committed aggravated robbery. We therefore hold the evidence is sufficient to support appellant's conviction, and we overrule his first issue.
III. Fifth and Sixth Amendment Rights
In his second issue, appellant complains that "the trial court erred in allowing the admission of evidence obtained in violation of Ms. [Angela] Stevens's constitutional rights." Appellant contends his mother's testimony should have been excluded because she was forced to provide incriminating statements concerning her pending drug-related charges without her counsel present, which violated her Fifth and Sixth Amendment rights. We hold appellant did not preserve error for appellate review and does not have standing to assert his mother's rights.
In multiple parts and subparts to his second issue, appellant maintains:
a. Angela's Fifth and Sixth Amendment right and rights under article 1 § 10 of the Texas Constitution were violated when she was asked to provide testimony without her attorney present;
1. Angela was compelled to provide testimony that incriminated herself;
2. Angela was interviewed without her attorney present;
b. Appellant has standing to complain about the violation of his mother's constitutional rights.
1. Appellant was injured by the admission of his mother's testimony given in violation of her constitutional rights;
2. Appellant and Angela have a common have a common interest that allows appellant to bring a complaint in her mother's stead;
3. Angela does not have the ability to exert her own rights; and
4. There are "weighty countervailing policies" that require appellant to assert his mother's rights.
The trial court conducted a bench conference before Angela took the stand to testify. Appellant's counsel participated in the conference and raised the fact that he had spoken to Angela's attorney, Angela might invoke her Fifth Amendment rights, and her lawyer should be given the opportunity to know what she was going to testify about in court. The State asserted it had advised Angela's counsel by e-mail that Angela would be called as a witness and argued that appellant's case was unrelated to Angela's cases, as appellant's happened in 2012 and Angela's were in 2014 and 2015. The trial court noted that Angela had been sworn in the previous week and that if Angela "starts taking the Fifth, we're going to excuse her and find what that's all about." The trial court added, "[i]f she has factual information about this case, I don't see why she would have the opportunity or need to take the Fifth if it has nothing to do with her case."
Appellant's counsel did not object when the trial court ruled to continue without Angela's counsel present and did not admonish Angela. Angela took the stand and testified on June 30, 2015. Angela did not assert her Fifth or Sixth Amendment rights. Appellant did not object to Angela's testimony based on a violation of her constitutional rights. Additionally, appellant did not make a timely motion to have Angela's testimony stricken. Rather, he waited until the next day, July 1, 2015, to assert a motion for mistrial or, in the alternative, request that her testimony be stricken from the record.
Because appellant did not assert timely, in the trial court, the constitutional objections set forth in his appellate brief, his arguments are not preserved for appellate review. Tex. R. App. P. 33.1(a) (providing that to preserve error for appellate review, the complaining party must make a timely, specific objection, and obtain a ruling); see Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (holding constitutional and statutory rights may be forfeited where appellant does not object).
Even if appellant had timely objected, appellant lacks standing to complain of the deprivation of his mother's constitutional rights. "As is well known, the privilege against self-incrimination is personal to the witness and can be asserted only by [her]." See Etter v. State, 679 S.W.2d 511, 515 (Tex. Crim. App. 1984); see also Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004) (appellant "has no standing to complain about the invasion of someone else's personal rights"); Burton v. State, 442 S.W.2d 354, 359 (Tex. Crim. App. 1969) (appellant has no standing to complain of violation of constitutional rights of co-indictee). "Not even the witness' attorney may claim the privilege for [her]." Etter, 679 S.W.2d at 515. Here, Angela did not claim her privilege against self-incrimination, and appellant lacks standing to lodge it. Appellant fails to demonstrate any exception that would allow him to assert Angela's Fifth and Sixth Amendment rights.
For the reasons set forth above, we overrule appellant's second issue.
IV. Conclusion
Having overruled appellant's issues, we affirm.
/s/ John Donovan
Justice Panel consists of Justices Christopher, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).