Nos. 05-08-01505-CR, 05-08-01506-CR, 05-08-01507-CR
Opinion Filed April 1, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 366-80332-08, 366-80333-08, and 366-808334-08.
Before Justices FITZGERALD, MURPHY, and MYERS.
Opinion By Justice MURPHY.
A jury convicted Eric Demetrick White of three counts of aggravated robbery and assessed punishment for each count at sixty years' confinement, running concurrently, and a $6000 fine. In two issues, appellant challenges the trial court's (1) denial of his requested jury instruction on the lesser-included offense of theft, and (2) admission of recordings of two telephone calls appellant made from jail. We affirm.
Background
On the morning of December 29, 2007, Plano police officers were called to investigate three neighborhood robberies. The first victim, Jeffrey Hunter, testified that just after he had gotten into his parked car in front of his house, a man approached him, opened the car door, and put a gun to his temple. With the gun still at Hunter's head, the man reached across Hunter's lap, turned off the car ignition, and grabbed Hunter's cell phone from his belt. The man said "I want all your money." Hunter "was told if [he] moved [the man] would shoot [him]." Hunter described the gun as a "very beat up firearm," but he assumed the gun was loaded. Even though he was not injured, Hunter believed the man was in a position to hurt him. In addition to the cell phone, the man took Hunter's watch, wedding ring, car keys, and two dollars. Hunter testified that he did not have a chance to look the man in the face, but was able to give the police a general physical description and identify his clothing as a dark, hooded sweatshirt. He also described the man's car as "an old model, ten to twelve years old, beat up, scratched, dented, white four-door sedan. . . . maybe an old Ford or Mercury, something of that nature." The car also appeared to have tinted windows and at least one other occupant in addition to the robber. The second victim, Alessandro Cantaboni, testified that as he got into his truck to go to work, a white Crown Victoria or similar model car pulled up next to him. A man wearing a hooded sweatshirt and "trying to hide his face" got out of the driver's side. Cantaboni tried to lock his truck, and by the time he turned his head to the left, the man had a gun up against the window. Cantaboni testified he partially rolled down his window to hand the man his wallet, but the man told Cantaboni to roll the window all the way down. The man then reached inside the truck, unlocked the door, and tried to remove the keys from the ignition. The gun was pointed at Cantaboni's chest from the time the man reached inside the truck. Cantaboni said the man "just started patting me down and asking me if I had any money." When Cantaboni told the man he only had twenty dollars, the man said "that's not good enough for me" and threatened "[i]f you don't have more I'm going to shoot you." Cantaboni told the man to take his lunch box, which contained his GPS and MP3 player; the man also took Cantaboni's wallet. As soon as the robbery was over, Cantaboni testified he started "freaking out." Cantaboni emphasized the man "had a gun pointed at me," in response to questioning of whether the man made any effort to injure or physically harm Cantaboni. While agreeing he had not been physically injured, Cantaboni testified he felt in jeopardy of being killed or seriously injured if he did not comply with the man's instructions. The third victim, Abraham Park, testified he had just arrived home from church and was in his car trying to take the key out of the ignition when a man pointed a gun at him and told him to open the door. Park testified that when he saw the gun, he knew the man intended to rob him. Park said the man took around ninety dollars from his wallet and nine hundred dollars in mission fund money; Park was the treasurer of his church and was sending the money to missionaries in Korea. The man also took a bag containing other church items, including the checkbook and bank statements. Park testified he memorized the license plate and saw the robber speed away in an old car with tinted windows. Park testified he was "very intensely nervous" and afraid when the man was pointing the gun at his head. The man did not hurt Park, but Park believed "if I wouldn't give [him] money he would have [shot] me right then to my head and I would be gone." Park was "so scared and nervous" that he needed help dialing 911. Because the victims alerted the police and were able to describe the car, including a license plate number, the police were able to locate the car shortly after the third robbery. Plano Police Officer William Durkin testified he spotted the vehicle drive past him. He pulled in behind the car, verified the license number, and radioed for back-up units so he could process a felony traffic stop. A second officer, Sergeant Ernest Oldham, arrived and activated his lights and siren as he came through the red-light intersection. At that point, the suspects pulled over. Durkin got out of his vehicle, drew his weapon, and ordered the driver and passenger to put their hands outside the windows. They did so, but as Oldham approached the car and reached inside the passenger's window to open the door, the driver pulled his hands back inside the car and pulled away at a high rate of speed. Durkin testified the driver led the police on a high-speed chase. As the officers pursued him from Plano into Dallas, the passenger tossed items out the window. The car chase ended south of downtown Dallas after another office performed a pit maneuver, stopping the car. Durkin identified appellant as the man arrested after the chase ended; the passenger, Amber Oden, was appellant's girlfriend, and she too was arrested. Both appellant and Oden were charged with three counts of aggravated robbery and one count of evading arrest. The jury found appellant guilty of three counts of aggravated robbery and one count of evading arrest. Appellant does not challenge his evading arrest conviction on appeal. Instruction on Lesser-Included Offense
During the charge conference, appellant's trial counsel requested a jury instruction on the lesser-included offense of theft. The trial court denied that request. In his first issue, appellant complains the trial court erred in refusing the instruction because there was more than a scintilla of evidence that appellant did not intentionally or knowingly threaten or place the victims in fear of imminent bodily injury or death. Appellant asserts that theft is a lesser-included offense of aggravated robbery here because theft "is established by proof of the same or less than all the facts required to establish the commission of the offense charged." Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 2006). The two-prong, "cognate pleadings" test is applicable to our analysis of whether appellant was entitled to a lesser-included offense jury instruction. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). The first step in the analysis is a question of law and requires us to compare the elements of the offense as charged with the statutory elements of the potential lesser offense. Id. at 535-36. Under this prong, we do not consider the evidence presented at trial. Id. at 535. This first step is met if the elements of the lesser offense are included within the proof necessary to establish the offense as charged. Id. at 535-36. The second step in the analysis requires us to review the record to determine if some evidence exists to support the lesser-included offense instruction to the jury. Id. at 536. That is, we determine whether the record contains some evidence that "would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense." Id. (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). "Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge." Bignall, 887 S.W.2d at 23. The evidence must establish the lesser-included offense as a valid and rational alternative to the charged offense. Hall, 225 S.W.3d at 536. The indictment here charged that appellant "did then and there intentionally and knowingly, while in the course of committing theft of property and with intent to obtain and maintain control of said property, threaten and place [his victims] in fear of imminent bodily injury and death, and [appellant] did then and there use and exhibit a deadly weapon, namely: a firearm." A person commits theft "if he unlawfully appropriates property with intent to deprive the owner of property." Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2009). Comparing the elements of aggravated robbery as charged here with the statutory elements of theft, we conclude the elements of theft are included expressly within the proof necessary to establish aggravated robbery. Hall, 225 S.W.3d at 535-36; see also Campbell v. State, 571 S.W.2d 161, 162 (Tex. Crim. App. 1978) (theft was lesser-included offense of aggravated robbery). The indictment specifically charged appellant "while in the course of committing theft," implicating the necessity of proof of those elements. See Earls v. State, 707 S.W.2d 82, 84 (Tex. Crim. App. 1986); see also Tex. Penal Code Ann. § 29.01(1) (Vernon Supp. 2009) (defining "in the course of committing theft" as "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft"). Thus, appellant's complaint satisfies the first prong in the cognate pleadings test. Hall, 225 S.W.3d at 535-36. Under the second prong, we examine the record to determine whether some evidence supports appellant's claim that if he is guilty, he is guilty only of theft. Appellant claims he is entitled to the lesser-included offense instruction based on (1) Hunter's testimony the gun was "beat up"; (2) Cantaboni's testimony the robber was close enough to hurt him but did not do so; and (3) Park's "wherewithal to accurately write down a license plate number." Appellant argues this evidence is "at least" a scintilla of evidence that appellant did not intentionally or knowingly threaten or place Hunter, Cantaboni, or Park in fear of imminent bodily injury or death. We disagree. Appellant was not entitled to a lesser-included instruction unless the record contains some evidence that would permit the jury to find rationally appellant was guilty only of the lesser offense of theft. Id. at 536. Stated differently, no instruction is required where a defendant presents no evidence and no evidence exists that otherwise raises the issue. Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). In this case, appellant did not testify or offer any evidence at trial. Nor is there any evidence contradicting the testimony that each victim, in fear of death when threatened at gunpoint, complied with appellant's demands. The elements that elevate the lesser offense of theft to aggravated robbery include (1) intentionally and knowingly threatening or placing another in fear of imminent bodily injury or death and (2) using or exhibiting a deadly weapon, such as a gun. Hunter's testimony that appellant's gun was "very beat up" does not diminish his fear of being seriously harmed or killed. He assumed the gun was loaded, and he felt he would be killed if he did not give appellant money. Similarly, the evidence that Cantaboni was not physically injured, does not contradict or weaken his testimony of fear of death or imminent bodily injury as he was patted down with the gun barrel to his chest. To the contrary, he told of "freaking out" immediately after the robbery and explained it was "pretty hard" to testify about the robbery. Finally, Park's ability to memorize a portion of the license plate does not alter his unequivocal testimony he was "very intensely nervous." He believed he would have been killed if he had not followed instructions, and he needed help calling the police because he was "so scared and nervous." Appellant has failed to satisfy the second prong of the cognate pleadings test. He offered no evidence, and there is no evidence in this record to show that if appellant was guilty, he was guilty only of theft. We therefore conclude the trial court did not err in denying appellant's request for a lesser-included offense instruction. We overrule appellant's first issue. Admission of Telephone Recordings
In his second issue, appellant challenges the trial court's admission of two recordings of telephone calls appellant made while in jail. He argues the recordings were (1) not properly authenticated and (2) more prejudicial than probative because the recordings highlighted the fact appellant was in jail awaiting trial. The phone calls consisted of conversations between appellant and his younger brother. In both calls, appellant admitted running from the police. We review the trial court's decision to admit evidence under an abuse of discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). We will reverse the trial court's evidentiary ruling only when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Id.; Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). Authentication
Appellant first argues the recordings should not have been admitted because the State's sponsoring witness, Dale Dowdy "has no personal knowledge whatsoever regarding Appellant's voice for authentication purposes" and therefore, the recordings "lacked a proper foundation" under Texas Rule of Evidence 901. The authentication requirement for admissibility "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a). Rule 901(b) provides a non-exclusive list of methods for authenticating evidence. Tex. R. Evid. 901(b); Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). One method for authenticating evidence is testimony by a witness with knowledge that the "matter is what it is claimed to be." Tex. R. Evid. 901(b)(1). Importantly, "Rule 901 does not require the State to prove anything." Garner v. State, 939 S.W.2d 802, 805 (Tex. App.-Fort Worth 1997, pet. ref'd). Rather, it requires the State to show the trial court that the recordings of the telephone calls were what they purported to be — recordings of phone calls made by appellant from the Collin County Detention Center. See id. If the State makes the proper showing, the evidence is admissible. Id. In a sub rosa hearing, the State presented Dowdy, an investigator with the Collin County District Attorney's Office, to authenticate two audio recordings of telephone calls appellant made while in custody. Dowdy testified that recordings of an inmate's phone calls are made through the Evercom system. He described how the Evercom system works. Dowdy explained for an inmate to make a call, the inmate must provide his assigned LE number, which is like a personal pin number, and state his name. Through voice recognition technology, the Evercom system compares the inmate's voice print to the sample the inmate provided when initially set up on the system. If the system does not recognize the inmate's voice, the call will not go through. The system also informs the inmate the call will be recorded. Dowdy testified his job duties include recovering recordings of phone calls made by inmates from the Evercom system and that by tracking appellant's LE number, he personally retrieved the phone calls made by appellant. Dowdy identified State's Exhibit 36 as the compact disc containing phone calls he retrieved. The disc was stamped with Dowdy's initials and badge number. Dowdy further testified that appellant identified himself at the beginning of the recordings. Based on Dowdy's testimony of his job responsibilities, the workings of the Evercom system, his personal involvement retrieving the calls from the Evercom system, and the fact appellant's calls were subject to and passed voice-print recognition, it was reasonable for the trial court to believe a reasonable juror could find the evidence was what the State purported it to be. See Tex. R. Evid. 901(a); see also Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). We conclude the recordings of telephone calls appellant made were properly authenticated under rule 901. Probative Value Versus Prejudicial Impact
Appellant also argues the recordings should not have been admitted because any probative value of the "jail tapes" was outweighed by their prejudicial impact. Appellant maintains letting the jury know he was in jail pending trial was "tantamount to telling the jury [he] is dangerous and cannot be released." Evidence that is otherwise relevant and admissible may be excluded under Texas Rule of Evidence 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; see also Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990). "Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial." Montgomery, 810 S.W.2d at 389; see also Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). In considering a challenge to evidence under rule 403, courts must balance (1) the inherent probative force of the evidence with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury not equipped to evaluate the probative force of the evidence, and (6) the likelihood the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); Montgomery, 810 S.W.2d at 389-93. A reviewing court should reverse the trial court's balancing determination "`rarely and only after a clear abuse of discretion.'" Montgomery, 810 S.W.2d at 392 (quoting United States v. Maggitt, 784 F.2d 590, 597 (5th Cir. 1986)). Here, the trial court could have reasonably concluded the inherent probative force of the recordings was considerable because the recordings contained admissions from appellant that he ran from the police. While the State's need for the evidence was lessened because the evading arrest offense was also supported by evidence of the high-speed chase captured on squad car cameras, appellant has not shown other balancing factors weighed against the probative value. The State's presentation of the evidence was brief, consisting only of Dowdy's verification he pulled the recordings at the State's request and admission of the recordings. The time the jury spent listening to the recordings was not inordinate. The trial court also could have reasonably concluded the recordings did not tend to suggest decision on an improper basis or any confusion or distraction of the jury because of the direct relevance to the main issue of appellant's evading arrest offense. Similarly, because of such direct relationship, the trial court could have reasonably concluded the jury was equipped to evaluate the probative force of the evidence and therefore not give undue weight to the recordings. The focus on whether evidence is unfairly prejudicial is "whether it has a `tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged.'" Subirias v. State, 278 S.W.3d 406, 409 (Tex. App.-San Antonio 2008, pet. ref'd) (quoting State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005)); see also Casey, 215 S.W.3d at 880 (explaining evidence might be unfairly prejudicial if "it arouses the jury's hostility or sympathy for one side without regard to the logical probative force of the evidence"). Appellant argues that "the knowledge that [he] was in jail pending the trial could surely persuade a juror that [he] was deemed so dangerous to society that he could not be released." Yet Dowdy's testimony before the jury contains no references to appellant as an inmate or that he was in jail at the time of the calls. Although the beginning portion of the recordings indicates appellant was an inmate at the Collin County jail, no date is mentioned and no information is provided regarding the length of appellant's stay in jail. Due to appellant's arrest and the offenses charged, the jury was aware appellant was jailed at some time before trial — it is common knowledge persons arrested are taken to jail. Finally, the portion of the recording stating appellant was an inmate, is not so inflammatory or shocking that it would impress the jury in some irrational way. Considering all the factors involved in the rule 403 analysis, we conclude the trial court could have reasonably found the probative value of the recordings was not substantially outweighed by the danger of unfair prejudice. Accordingly, we conclude the trial court's decision was not an abuse of discretion and appellant has shown no basis for reversal. See Casey, 215 S.W.3d at 879 (we may reverse the ruling only when ruling so clearly wrong as to lie outside the zone of reasonable disagreement). We overrule appellant's second issue. Having overruled both of appellant's issues, we affirm the trial court's judgment.