Thompson v. State

Full title: QUINTON MAXWELL THOMPSON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Feb 11, 2010

No. 01-08-00156-CR (Tex. App. Feb. 11, 2010)

Opinion

No. 01-08-00156-CR

Opinion issued February 11, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).

On Appeal from the 185th District Court, Harris County, Texas, Trial Court Case No. 1059537.

Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.

MEMORANDUM OPINION

SHERRY RADACK, Chief Justice.

A jury found appellant, Quinton Maxwell Thompson, guilty of aggravated robbery, found an enhancement paragraph true, and assessed punishment at confinement for life. In seven points of error, appellant contends (1) that the evidence is legally insufficient to support his conviction for aggravated robbery, and that the trial court erred by (2) permitting a police officer's testimony to bolster a witness's identification of appellant, (3) permitting the prosecutor to strike at the defendant "over the shoulders" of his counsel, (4) refusing to permit appellant to question a witness about the witness's immigration status, (5) (6) permitting victim impact evidence from a person other than the complainant, and (7) permitting "voluminous amounts of hearsay" to be admitted over his objections. We affirm.

BACKGROUND

On December 4, 2005, Stela Moreno drove to visit her boyfriend, who lived nearby. Moreno parked her car in the parking lot of her boyfriend's apartment complex, got out, and began walking toward his apartment. As she was walking through the complex, Moreno noticed a car moving along next to her with two men in it who were "catcalling" at her. As she continued to walk, Moreno heard someone running behind her and she turned around. Moreno saw a man running toward her with a gun. The man told Moreno "don't move" and "give me your purse." When Moreno resisted, the man said, "I'll shoot your bitch ass if you don't give me your [purse]." After Moreno gave the man her purse, he told her to "get on out of here, to turn around and walk away," which Moreno did. As Moreno was walking away, the man patted her on her rear end. When Moreno told her boyfriend what had happened, the two decided to drive around to see if they could find the car in which she had seen appellant. While driving around, Moreno spotted a police officer, so they pulled over and Moreno told the officer she had been robbed. A few days after the robbery, Moreno saw the car that was involved in the robbery on the news. She called the police and was interviewed by Sergeant Ebers. Ebers prepared a live line-up, and Moreno "immediately" identified appellant as the man who had robbed her. At trial, Moreno also identified appellant and a photograph of the car in which he had been riding when the robbery occurred. During the punishment phase of the trial, the State introduced evidence of several other robberies to which appellant had been linked.

LEGAL SUFFICIENCY

In his first point of error, appellant contends the evidence is legally insufficient to support his conviction. Specifically, appellant argues that "[a] rational trier of fact could not have concluded beyond a reasonable doubt that appellant committed the offense of aggravated robbery, where the record only shows that the complainant based her identification of her assailan[t] upon a brief encounter with someone in a parking lot which was not really well lit." In our legal-sufficiency review, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Although Moreno positively identified appellant as the man who robbed her, appellant argues that Moreno's testimony is legally insufficient to show the element of identity because Moreno's vision at night was limited, she reacted to the robbery by walking — not running — to her boyfriend's apartment, the police line-up was flawed, and no weapon was ever recovered. It is well established, however, that a conviction may be based on the testimony of a single eyewitness. Davis v. State, 177 S.W.3d 355, 359 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)). Appellant's complaints about the reliability of Moreno's identification go to the credibility of her testimony, which we do not review in a legal sufficiency review. To the extent there are inconsistencies in her testimony, we must defer to the jury to decide the credibility of the evidence. See Petro v. State, 176 S.W.3d 407, 412 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (holding any discrepancies in description of robber and manner of witnesses' in-court and out-of-court identifications are matters best left for jury's evaluation of credibility and demeanor of witnesses who appeared before them). Regarding appellant's complaint that the line-up procedures were flawed, we note that appellant did not file a motion to suppress the line-up evidence and does not bring a point of error on appeal asserting that the procedures were unduly suggestive. Thus, any complaint about the admissibility of the line-up evidence is waived. See TEX. R. APP. P. 33.1. To the extent that appellant is arguing that the line-up procedures cast doubt on Moreno's identification, such a complaint goes to the credibility of her testimony, which we do not review in a legal sufficiency challenge. Finally, regarding appellant's argument that a weapon was never recovered, we note that the inability to recover a weapon does not prevent proof that appellant used a weapon. See Brockway v. State, 853 S.W.2d 174, 179 (Tex. App.-Corpus Christi 1993, pet. ref'd). The jury was free to accept or reject Moreno's testimony that she saw and gun and that appellant threatened to shoot her with it if she did not comply with his demand. See Davis, 177 S.W.3d at 358-59. We overrule point of error one.

BOLSTERING

In point of error two, appellant contends the trial court erred by permitting Officer Ebers to testify that, when Moreno viewed the videotaped line-up, she identified appellant without reservations. During the guilt/innocence phase of trial, the following exchange took place:

[Prosecutor]: When you showed [Moreno] the lineup, was she able to make an identification?

[Ebers]: Yes, she was.

[Prosecutor]: Could you explain to us how quickly she made that identification?

[Ebers]: She did so immediately, before they even showed the faces up close. When they showed all six in a lineup, showing the entire lineup.

[Prosecutor]: From what you personally observed, did it appear as though she had any reservations when she made this identification?

[Ebers]: No.

[Defense Counsel]: Object, calls for a conclusion on the part of the witness.

[Trial court]: Overruled.

The State argues that appellant's objection was untimely and without merit. We agree. Appellant's objection was not made until after Ebers had answered the question, and appellant offered no explanation for his delay in objecting. See TEX. R. EVID. 103(a)(1) (requiring timely objection); Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997) ("If a defendant fails to object until after and objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely and error is waived."). Further, Eber's testimony is admissible under TEX. R. EVID. 801(e)(1)(c), which provides that a statement is not hearsay "if the declarant testifies at trial or hearing and is subject to cross-examination, and the statement is . . . one of identification of a person made after perceiving the person." TEX. R. EVID. 801(e)(1)(c). In Smith v. State, 830 S.W.2d 328, 329 (Tex. App.-Houston [14th Dist.] 1992, no pet.), the defendant, like appellant here, objected to bolstering when a police officer testified that the sole eyewitness to the crime had positively identified the defendant from a photospread. Id. The court noted that bolstering was historically disallowed because it was hearsay. Id. However, because the eyewitness testified at trial and was subject to cross-examination, her testimony was not hearsay under Rule 801(e)(1)(c). Id. Thus, the court concluded, the officer's testimony was not improper bolstering. Id. The same is true in this case. Moreno testified about her identification of appellant at trial and was subject to cross-examination. Her statement was one of identification after perceiving a person. Thus, Eber's testimony was not improper bolstering. See Thomas v. State, 811 S.W.2d 201, 208 (Tex. App.-Houston [1st Dist.] 1991, pet. ref'd) (holding that, under Rule 801(e)(1)(c), officer's testimony that witness identified defendant in lineup was not improper bolstering). We overrule point of error two.

STRIKING AT DEFENDANT OVER SHOULDERS OF COUNSEL

In point of error three, appellant contends the trial court erred by failing to sustain his "objection to the State's improper jury argument striking at the defense counsel." During closing arguments of the guilt/innocence phase of trial, the prosecutor argued as follows:

[Prosecutor]: There is nothing that defense brought forward to you that would shake [Moreno] in any way. Because she knows exactly who did this to her. And we got to be thankful. You know you can come in here and you can criticize Sergeant Ebers all you want and its's easy to sit on the other side and say, he did this, that and the other wrong, but we got to thank him for getting this person in here, for making Ms. Moreno feel safer.

[Defense counsel]: Objection to striking defense counsel, Your Honor, over the shoulders of the defendant.

[Trial Court]: Overruled.

Proper jury argument generally must encompass one of the following areas: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from the evidence; (3) an answer to the opposing counsel's argument; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Magana v. State, 177 S.W.3d 670, 674 (Tex. App.-Houston [1st Dist.] 2005, no pet.). To determine whether a party's argument properly falls within one of these categories, we must consider the argument in light of the record. Magana, 177 S.W.3d at 674. The State may not use closing argument to "strike" at a defendant over the shoulders of his counsel or accuse counsel of bad faith. Magana, 177 S.W.3d at 674; see also Mosley v. State, 983 S.W.2d 249, 258-59 (Tex. Crim. App. 1998). A prosecutor runs the risk of improperly "striking" at a defendant over the shoulders of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel's character. Mosley, 983 S.W.2d at 259; Magana, 177 S.W.3d at 675. While defense counsel is protected from unwarranted attack by the prosecution, the prohibition "does not create a sanctuary to which defense counsel may retreat with immunity and thereby deny the prosecutor the right to reply to counsel's argument." Stokes v. State, 506 S.W.2d 860, 864 (Tex. Crim. App. 1974). It is permissible for a prosecutor to attack the defense's argument rather than defense counsel. See Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008); Magana, 177 S.W.3d at 675. And if defense counsel invites argument, it is appropriate for the State to respond. See Swarb v. State, 125 S.W.3d 672, 686 (Tex. App.-Houston [1st Dist.] 2003, pet. dism'd). During his closing arguments, defense counsel criticized Detective Ebers's method of conducting the line-up. In response, the prosecutor argued that, while the defense could criticize Ebers's methods, Moreno remained certain in her identification of appellant. As such, the prosecutor's argument was not improper because "the prosecutor's argument here was not directed at defense counsel, but defense counsel's argument." Coble v. State, 871 S.W.2d 192, 205 (Tex. Crim. App. 1993). We overrule point of error three.

CROSS-EXAMINATION REGARDING IMMIGRATION STATUS

In point of error four, appellant contends the trial court erred during the punishment phase of the trial by refusing to allow appellant to question one of the State's witnesses about the witness's immigration status. During the punishment phase, the State presented J. Rivera, who testified about an extraneous robbery offense. During cross-examination of Rivera, the following exchange took place:

[Defense Counsel]: Mr. Rivera, how old are you?

[Rivera]: 32

[Defense Counsel]: Were you born in the United States?

[Rivera]: No.

[Defense Counsel]: Are you a citizen?

[Rivera]: No.

[Defense Counsel]: On what basis — what status do you have in the United States?

[Prosecutor]: Objection, Your Honor, to the relevance.

[Trial Court]: Sustained.

[Defense Counsel]: May I approach? I'll be happy to explain it to you outside the presence of the jury. Possible bias and possible —

[Trial Court]: No, counsel, you may not.

Appellant contends the trial court erred when it improperly restricted his counsel's cross-examination of Rivera regarding his immigration status. The State, on the other hand, asserts appellant has not preserved this issue for appellate review. We agree. In order to raise a point of error on appeal regarding the exclusion of evidence, "the record must show what the excluded testimony would have been." Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984). Absent such a showing, "or an offer of a statement concerning what the excluded evidence would show, nothing is preserved for review." Id. As the State correctly points out, appellant made no offer of proof or bill of exception showing what Rivera's excluded testimony would have been. Because appellant did not show what Rivera's testimony would have been, he has not preserved this issue for appellate review. See Loredo v. State, 788 S.W.2d 196, 200 (Tex. App.-Houston [1st Dist.] 1990, no pet.). We overrule point of error four.

VICTIM IMPACT EVIDENCE

In points of error five and six, appellant contends the trial court erred at the punishment phase of the trial when it "permitted the State to introduce inadmissible victim impact evidence over appellant's objection that the person testifying was not the named complainant in the indictment." At trial, Deanna Walker and her nephew, Darrius Singleton, testified that that appellant had burglarized their home. Both were asked how the burglary made them feel. Walker testified that she felt "violated" and "angry," and Singleton testified that he too was "angry." Singleton was also asked if the burglary had changed him, to which Singleton replied, "Not really, except to be careful who I bring into my house." Appellant argues that Walker's and Singleton's testimony was improper "victim impact evidence," which should not have been permitted because they were not the complainant named in the indictment. In Cantu v. State, 939 S.W.2d 627, 636 (Tex. Crim. App. 1997), the appellant was charged with murdering Jennifer Ertman. The evidence showed that another girl, Elizabeth Pena, was killed during the same transaction. Id. During the punishment phase of the trial, Pena's mother testified at trial about the effect that her daughter's murder had had on her and the rest of her family. Id. The court held that because Pena was not the victim named in the indictment, her mother's testimony about the impact of her death was irrelevant. Id. at 637. In Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007), the State presented an extraneous robbery offense at the punishment phase of the defendant's trial. The victim of the extraneous offense, Thomas, testified about the emotional impact the robbery had had on her life. Id. Citing Cantu, the defendant argued on appeal that Thomas should not have been permitted to give victim impact testimony because she was not the victim named in the indictment. Id. The court of criminal appeals disagreed, stating that that, "`victim impact' evidence is evidence of the effect of an offense on people other than the victim." 220 S.W.2d at 531. Because Thomas was the actual victim of the extraneous offense, her testimony was not "victim impact" testimony and, as such, Cantu was distinguishable. Id. This case is like Roberts, not Cantu. Walker and Singleton are the victims of the extraneous burglary offense. Thus, their testimony about the impact that the burglary had on them is not victim impact testimony. We overrule points of error five and six.

HEARSAY

In point of error seven, appellant contends the trial court erred by permitting "voluminous amounts" of hearsay evidence to be introduced. The State responds that appellant's point of error should be overruled because it is multifarious and inadequately briefed. We agree. Appellant's brief contains seven pages that consist solely of testimony quoted from the reporter's record, in which appellant made 19 separate hearsay objections, all of which were overruled by the trial court. However, appellant's brief provides no independent analysis of each objection, nor does he explain why his objections should have been sustained. Instead, appellant merely "submits that all the responses set forth above constitutes [sic] inadmissible hearsay." A multifarious issue is one that embraces more than one specific ground, or that attacks several distinct and separate rulings of the court. See Stults v. State, 23 S.W.3d 198, 205 (Tex. App.-Houston [14th Dist.] 2000, pet. refused); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex. App.-Austin 1996, no writ). By combining more than one contention in a single issue, an appellant risks rejection on the ground that nothing is presented for review. Stults, 23 S.W.3d at 205. But, an appellate court may address a multifarious issue that is sufficiently developed in the brief. Foster v. State, 101 S.W.3d 490, 499 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Appellant's point of error purports to attack 19 separate rulings by the trial court without offering separate argument or authority on the propriety of each ruling. We hold that the brief is not sufficiently developed to address these rulings, thus nothing is presented for review. In addition, in his brief, appellant merely concludes that the 19 objectionable statements constitute hearsay, but does not explain to this Court why the statements are hearsay or why they do not fit any of the exceptions to the hearsay rule. "[W]e will not brief appellant's case for him." Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995). "Counsel, not the Court, represents appellant. Although the Court has an interest in a just adjudication, it also has an interest in remaining impartial." Ex parte Lowery, 840 S.W.2d 550, 552 n. 1 (Tex. App.-Dallas 1992), overruled on other grounds, 867 S.W.2d 41 (Tex. Crim. App. 1993). It is incumbent upon counsel to cite specific legal authority and to provide legal argument based on that authority. TEX. R. APP. P. 38.1(h); See Ex parte Granger, 850 S .W.2d 513, 515 n. 6 (Tex. Crim. App. 1993). A point of error that is conclusory and cites no authority presents nothing for appellate review. See Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996); Pierce v. State, 777 S.W.2d 399, 418 (Tex. Crim. App. 1989); Burns v. State, 923 S.W.2d 233, 237 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). Therefore, we hold that appellant's seventh point of error is inadequately briefed and we decline to address it. See TEX. R. APP. P.38.1(h). We overrule point of error seven.

CONCLUSION

We affirm the judgment of the trial court.