Opinion
No. 14-06-00132-CR
Memorandum Opinion filed September 25, 2007. DO NOT PUBLISH-TEX. R. APP. P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 990,259.
MEMORANDUM OPINION
A jury found appellant, Jonathan Maurice Williams, guilty of aggravated robbery. The same jury assessed punishment at 23 years' confinement and a $600 fine. On appeal, appellant complains about the sufficiency of the evidence, ineffectiveness of counsel, and trial court error regarding jury instructions and failure to grant a mistrial. We affirm.
Factual Background
On October 12, 2003, Lucas Jimenez was at home with his daughter, son-in-law, and their baby boy, Carlitos. Jimenez heard a knock at the door, and went to open it, suspecting that his roommate had forgotten his key and had returned from doing laundry. When he opened the door, two black males pushed the door open and forced their way inside. One of them had a gun, which he pointed at Jimenez. The two men forced Jimenez into the bedroom, where his daughter, Antoinetta Marcos, and her husband Candelario Hernandez were looking after their baby. The men forced the family to lay down on the floor, leaving the baby where he had been in the middle of the bed, and the man later identified as appellant held the family at gunpoint while his accomplice ransacked the apartment. At some point during the robbery, Jimenez's roommate, Benigno, did in fact return from doing his laundry. The two men grabbed him when he came in and put him on the floor in the bedroom with the rest of the family. The men then covered all four adults with a blanket, so they could not see what was happening. The family remained under the blanket, not moving, until they did not hear the men in the apartment anymore. Estimates of the amount of time spent under the blanket range from ten to forty minutes. The family got up and surveyed the damage. The apartment had been ransacked, and cash, jewelry, including Marcos's wedding ring, and a video cassette recorder were stolen from the apartment. At this point, the family called the police to report the incident. The police arrived shortly thereafter, filled out a report, and gave Jimenez a card with a number to call in case he ever saw the robbers again. After the police left, Jimenez, having no money with which to buy food, went to a cousin who lived nearby and borrowed $100 to feed his family. Jimenez, his son Alvarro, and Benigno took the $100 and went to the grocery store to buy food. On the way home from shopping, Jimenez spotted the two robbers standing in front of a gas station. Jimenez instructed Alvarro to get out and call the police from a pay phone. When the police arrived, they talked to Jimenez, and he pointed out the two men to the police. The police approached the men with weapons drawn, and appellant grabbed the pocket of his pants, and ran. Both officers gave chase, and pursued appellant into the parking lot of a nearby apartment complex. After calling for backup, officers eventually found appellant hiding under a vehicle. He had ninety dollars in his possession, but no gun or loot from Jimenez's apartment. The officers brought appellant back to their squad car, and after putting him in the back, had Jimenez, Benigno, and Hernandez separately approach the car and look at appellant to see if they would confirm that he was one of the men who had robbed them. The men confirmed that appellant was one of the robbers. The single contested issue at trial was the identity of the robber. The State began its case by calling Jimenez, Hernandez, and Marcos to the stand to testify to the events of the robbery, and to identify appellant as one of the robbers. Jimenez took the stand first, and testified that he recognized appellant as one of the men who had entered his apartment. On cross-examination, Jimenez recounted the description he had given the police, which included black t-shirt, long black shorts, and a black rag on his head. He described the robber as being of average height, with somewhat dark skin, and having a silver tooth. He testified that when he saw the men at the convenience store that evening, they were wearing the same clothes they had worn during the robbery. Jimenez testified on cross-examination that the blanket was thrown over the family as soon as they were taken to the bedroom, but on re-direct, he clarified that the blanket obscuring the group's view of the robbers was only thrown over them after Benigno came home and was brought into the bedroom. On cross-examination, when defense counsel asked him whether he got a good look at appellant's arms, Jimenez said "yes." Jimenez stated he did not notice any tattoos on appellant's arms. On re-direct, he testified that he was the first person to see the robbers, and was the closest person in the apartment to the appellant, and that he "just saw [appellant's] face," rather than his arms or body. Hernandez gave a similar description of the events in the apartment, and also made an in-court identification of appellant as being one of the robbers. He testified to being in the doorway to the bedroom-some 20 feet from the front door when the men forced their way in, and that from this vantage point he was able to see their faces as they came in. They came forward until they were about two feet from Hernandez, at which point he could see their faces clearly. He also testified to making an identification of appellant in the officers' patrol car, and that he was certain of his identification. On cross-examination, Hernandez admitted that he only saw the gunman's face for a brief time. He also testified on cross-examination that he saw both of appellant's forearms. He did not notice any tattoos on appellant's arms. Marcos gave a similar version of events, and also made an in-court identification of the appellant. She testified on direct that Officer Mejia asked her to view a video lineup, but she refused because she was scared to watch it alone. On cross-examination, Marcos testified that she had not viewed a video lineup, but had viewed one in person, where she identified appellant. She later testified that she never saw any lineup. Marcos's testimony was clearly plagued by communication difficulties. The defense put on evidence to countervail the State's identification witnesses. The first was Officer Mejia, who testified that after appellant had been arrested, Officer Mejia created a mock lineup and videotaped it. He then showed the mock lineup to Marcos at her apartment the day after the incident. He testified that she viewed the entire tape but could not make a positive identification. On cross examination, he testified that Marcos was adamant that she did not want to view the tape because she was afraid for her life. She also thought that she did not need to view the tape since her father had made an identification, but that she acquiesced and viewed it at Officer Mejia's suggestion. He also testified on cross-examination that individuals are often able to identify someone in person that they may or may not be able to identify from photos or a video. Finally, appellant himself testified. He testified that he had a temporary job at the time of the robbery. He said he had been home all day that Sunday until 6:00 or 6:30 p.m., at which time he and two friends went to "hang out" in the parking lot of a store. Also, he testified to buying marijuana from a black male he had seen around before, while at the convenience store. He testified that he ran from police because he thought they were going to arrest him for drug possession. He said that, when he ran from the police, he threw the marijuana he had purchased into some bushes, which explained why he did not have any drugs on his person when he was searched pursuant to arrest. Appellant stated that the tattoo he now has on his neck has been added since he has been in jail, but that all of the tattoos on his arms were there at the time of the robbery. On cross-examination, appellant admitted that he has, and had at the time of the robbery, "gold upper and lower teeth." He also admitted that since his incarceration, he has been caught twice with tattooing paraphernalia in his jail cell.Analysis
Appellant raises four issues on appeal: 1) the trial court erred in not granting a mistrial when prosecutor commented on appellant's failure to testify at punishment phase; 2) the evidence is factually insufficient to support the jury's finding that appellant was the perpetrator of the offense; 3) the trial court committed fundamental error in failing to instruct the jury at guilt/innocence on the issue of eyewitness identification; and 4) appellant's counsel was ineffective for failing to re-offer appellant's videotaped statement as impeachment evidence. Because issues two through four would require remand for a new trial on guilt/innocence, we examine these issues first.I. Evidence is Factually Sufficient
In his second issue, appellant complains about the factual insufficiency of the evidence as to his identification.A. Standard of Review
A factual sufficiency review begins with an assumption that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). In performing our review, we view all the evidence without the prism of "in the light most favorable to the prosecution," and we set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). The jury is the judge of the facts, and the exclusive judge of the credibility of witnesses. Id at 407, 408-09. The weight to give contradictory testimonial evidence is within the sole province of the jury since the determination turns on an evaluation of credibility and demeanor. Id. at 408-09. We exercise our fact jurisdiction only to prevent a manifestly unjust result, not to impose a result we feel is more reasonable. See Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). We review all of the evidence in the record, and view it as a whole. Cain, 958 S.W.2d at 408. If we find the evidence factually insufficient, we must support that finding by a detailed explanation, in order to ensure we maintain proper deference to the jury. Id. at 407.B. Jury's Finding Not Manifestly Unjust
In his argument of factual insufficiency, appellant points to several pieces of evidence that he suggests militate toward a finding of insufficiency. First, he points out that this was a close case, as the first trial ended in a mistrial due to jury deadlock. While this fact is evident in the appellate record, it was not before the jury, and therefore it may not be considered in the factual sufficiency review. See Cain, 958 S.W.2d at 407-08. Next, appellant points out several facts that he claims would undermine the identifications by Jimenez, Hernandez, and Marcos. He points out that both Jimenez and Hernandez said that they each saw appellant's face only briefly before being forced to look away. He also stresses that Jimenez and Hernandez said they each had the opportunity to see the assailant's arms but did not notice any tattoos on them. He points out that, despite making an in-court identification, Marcos gave conflicting testimony about whether she ever viewed a lineup, and whether she was able to identify appellant in the lineup. To the extent she testified that she did not see a lineup, this testimony conflicts with Officer Mejia's testimony that he showed a video lineup to Marcos, and that she was unable to identify anyone. Appellant also points out that the lineup was recorded while he had on the same clothes in which he was arrested. Finally, appellant points out that he testified that he did not commit the offense, that he had tattoos on his arms at the time of the offense, and he gave the jury both an alibi and a reason for his flight from police. Each of these facts goes to the credibility of the eye-witness testimony, which is the province of the jury. Id. at 408-09. The jury was free to believe the in-court and out-of-court identifications, even though the witnesses looked at appellant's face for only a short time. Seeing the tattoos in the courtroom, the jury could reasonably have concluded the tattoos were close in color to the color of appellant's skin, and therefore, that it was not remarkable, under the circumstances, that the witnesses did not notice or remember them. See id. The jury was also free to resolve Marcos's conflicting testimony against appellant, and to disbelieve appellant's explanations for the evening's events. See id. at 410 (holding that where evidence is subject to two equally reasonable interpretations, a decision is not manifestly unjust because the jury resolves the decision in favor of the State). Having reviewed the entire record, we hold that the jury's determination was not contrary to the overwhelming weight of the evidence. We overrule appellant's second issue.II. No Fundamental Error in Failing to Instruct Jury on Eyewitness Identification
In his third issue, appellant complains that the trial court committed fundamental error in failing to instruct the jury on the issue of eyewitness identification with a charge that substantially tracks pattern jury instruction 1.29 of the Fifth Circuit's pattern jury instructions. The review of alleged jury charge error is a two step process. See Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1984). First, we examine the court's charge to see if the court erred, then we determine if there is sufficient harm to warrant reversal. Id. In this case, we hold that the trial court did not err. The Court of Criminal Appeals has held that a charge instructing the jury of its duty to acquit if it had a reasonable doubt that the defendant was mistakenly identified is an improper comment on the weight of the evidence, and should not be given. Laws v. State, 549 S.W.2d 738, 740 (Tex.Crim.App. 1977). Following Laws, we hold that such an instruction is not permitted, and therefore the trial court did not commit error in refusing to give it. See St. Luce v. State, No. 14-98-01316-CR, 2000 WL 1862843, at *1 (Tex.App.-Houston [14th Dist.] Dec. 21, 2000, pet. ref'd) (holding that the same instruction requested in this case would have been an impermissible comment on the evidence). We overrule appellant's third issue.III. Appellant Fails to Show Ineffective Assistance of Counsel
In his fourth issue, appellant claims that his trial counsel was ineffective for failing to re-offer a videotaped statement to the police, which would have shown appellant's arms and his tattoos as they were on the day he was arrested.A. Standard of Review
In reviewing an ineffective assistance of counsel claim, we follow the test laid out in Strickland v. Washington, 466 U.S. 668 (1984). To show ineffective assistance, an appellant must show 1) that counsel's representation was deficient, falling below the standard of prevailing professional norms, and 2) a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Id. at 687-96; Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). A strong presumption exists that counsel's conduct was within the wide range of reasonable professional assistance. Salinas, 163 S.W.3d at 740. An allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). When no specific reason is given for counsel's decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Further, when counsel has not been afforded an opportunity to explain his or her decisions, we do not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Once deficiency has been found, the appellant must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. B. Second Strickland Prong Is Not Satisfied Prior to the presentation of the defense testimony, a hearing was held on the State's motion in limine to exclude admission of the videotaped statement appellant gave to police after his arrest. Defense counsel alternatively urged admission of only the video portion of the tape to allow the jury to see appellant's arms with tattoos on them at the time of his arrest. The trial court granted the State's motion in limine. Appellant's counsel did not re-offer the videotape during the trial. After the close of all the evidence, and before the charge conference, the trial judge had a conference with both attorneys where he clarified to appellant's attorney that his prior ruling, that the videotaped statement would not be admitted, did not mean that it could not be admitted if the door had been opened by the State. Appellant's attorney said that he understood this, and he said, "And we would ask that the videotape still be shown to the jury because I believe the door was opened." The court agreed that the door had been opened, but no more was done to offer the videotape. Normally, the appellate record is insufficient to show deficient performance by a trial attorney, because there is nothing in the record as to the attorney's reasons for the action or inaction. Thompson, 9 S.W.3d at 813-14. However, in this case, because of the bench conference on the record, there is at least some evidence that appellant's trial counsel, after the close of the evidence, and in light of the trial judge's statements, reconsidered his strategy regarding the videotape and at that point believed the jury should see the videotape. But even assuming that trial counsel's performance was deficient, the second Strickland prong has not been satisfied. The videotape showing tattoos on appellant's arms is not directly contradictory to any testimony by any eyewitness. The complainants did not say the assailant did not have tattoos; rather they said they did not notice any tattoos on the assailant's arms, as they were focusing on the assailant's face. We have viewed the videotape that is part of the appellate record. The tattoos on appellant's arms were barely visible in the video; the video certainly did not show that the tattoos were so prominent as to cast doubt on the eyewitness identifications. Jimenez testified that he focused on the man's face rather than his body, that he was very frightened, and that he was only able to look at the robbers for a short time because after the complainants were taken to the bedroom, the robbers would not allow the complainants to look at them. Hernandez similarly testified that he saw the men's faces clearly as they entered the apartment, and as they came toward the bedroom where he was, but that after that he was made to lie face-down on the floor. Marcos's chance to observe the robbers was limited to the time between their entering the room and their telling the victims to lie face-down. Given the fact that the tattoos do not impeach any witness's testimony, the video barely shows any tattoos at all, all three witnesses made unequivocal identifications of appellant, and all three saw appellant clearly, we cannot say that there is a reasonable probability that a different result would have followed if appellant had offered the videotape. We overrule appellant's fourth issue.IV. Motion for Mistrial Based on Prosecutor's Comment on Failure to Testify
In his final issue, appellant contends that the trial court reversibly erred in overruling appellant's motion for mistrial after the prosecutor, during the punishment phase closing argument, commented on appellant's failure to testify and failure to show remorse.A. Standard of Review and Applicable Law
We review a trial court's refusal to grant a mistrial under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). An abuse of discretion occurs when the trial court's decision falls outside the zone of reasonable disagreement. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). The facts of each case must be examined in deciding whether to grant a mistrial. Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). Determining if the prosecutor's statement was a comment on the defendant's refusal to testify requires looking at the statement from the standpoint of the jury, and deciding whether the implication that the language used had reference to such failure to testify is a necessary one. Swallow v. State, 829 S.W.2d 223, 225 (Tex.Crim.App. 1992). The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001). Implied or indirect allusions to the failure to testify are not enough. Id. However, language that points to evidence only the defendant can supply is error. Swallow, 829 S.W.2d at 225. Direct testimony as to contrition or remorse can only come from the accused, and when offered by witnesses other than the accused himself, is inadmissible. Id. (citing Thomas v. State, 638 S.W.2d 481 (Tex.Crim.App. 1982)). However, evidence from which the jury can glean a lack of remorse may come from other sources besides the accused, and a reference to such evidence does not naturally and necessarily lead the jury to understand it to be a comment upon the defendant's failure to testify. See Caldwell v. State, 818 S.W.2d 790, 800 (Tex.Crim.App. 1991), overruled on other grounds by Castillo v. State, 913 S.W.2d 529, 533 (Tex.Crim.App. 1995). Even a clear comment on the defendant's failure to testify is not error where the comment was invited by the defense's closing argument. See Long v. State, 823 S.W.2d 259, 269 (Tex.Crim.App. 1991); Nethery v. State, 692 S.W.2d 686, 703 (Tex.Crim.App. 1985). The Court of Criminal Appeals has suggested that in order to invite a comment on the failure to testify, defense counsel must argue in favor of his client based on his client's failure to testify, or attempt to explain away or otherwise minimize the defendant's failure to testify. Franks v. State, 574 S.W.2d 124, 127 (Tex.Crim.App. 1978). An invited argument must stay within the scope of the defense counsel's invitation. See Johnson v. State, 611 S.W.2d 649, 650 (Tex.Crim.App. 1981); Kincaid v. State, 534 S.W.2d 340, 341-42 (Tex.Crim.App. 1976). Determining whether a court abused its discretion in refusing to grant a mistrial involves most, if not all, of the same considerations that attend a harm analysis. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). The analysis is conducted in light of any curative instruction from the trial court, and a mistrial will only be required in those extreme circumstances where the prejudice cannot be cured. Id. When the motion for a mistrial is based on a comment on the defendant's failure to testify, we examine: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction or punishment (the strength of the evidence supporting the conviction or punishment). See Archie v. State, 221 S.W.3d 695, 700 (Tex.Crim.App. 2007).B. Analysis
The following transpired during the closing argument at the punishment phase:[Defense:] Jonathan Williams' life — he's not going to be a young man anymore when he gets out. And when he's in TDC, I guarantee you he's going to think every day about what he did and what happened in court this week and why he's in there.
I'm asking you this, ladies and gentlemen, don't throw his life away. Don't — he's going to be punished. He's going to TDC. He's going to do hard, hard time. Don't throw this life away. We don't know if it's capable of being saved. We don't know enough about Jonathan Williams. It was a horrible crime, yes. . .
***
[State:] Jonathan Williams may be 23 years old, but from the judgments and stipulations introduced Jonathan Williams has made a career out of being a criminal. He's 23 years old and you have five judgments in front of you, two of which are felony convictions. I want to talk to you about Jonathan Williams' criminal history. And defense counsel is right. This is all you know about Jonathan Williams. But Jonathan Williams just had an opportunity, ladies and gentlemen, to tell you more. He had an opportunity to bring you more about his-about himself, about his life. He had an opportunity to express his remorse to you about the crime that he's committed if he feels it. And he chose not to do so. That should tell you something —
[Defense:] Objection, Your Honor
[State:] — about Jonathan Williams.
[Defense:] That's a comment on the defendant's failure to testify.
[Court:] That's sustained. Ladies and gentlemen, that's sustained. The instructions are very clear that you cannot consider the fact that he did not testify in this punishment phase of trial.
[Defense:] And I move for a mistrial.
[Court:] And you cannot consider it for any purpose whatsoever.
[Defense:] Move for a mistrial, Your Honor.
[Court:] That's overruled.
[State:] I'm not asking you to consider the failure of him to testify. I'm just saying he had —
[Court:] Let's move along.
[State:] — the opportunity to present evidence to you.(emphasis added). We note that appellant testified during the guilt stage. At the punishment phase, however, he did not testify, and he did not call any family or friends to testify on his behalf. The State argues that its closing argument was an attempt to emphasize appellant's failure to present any evidence during the punishment phase of trial, and was not a comment on appellant's failure to testify. See Thomas v. State, 638 S.W.2d 481, 485 (Tex.Crim.App. 1982). Further, the State points out that its closing argument could have been reasonably interpreted to be a comment on appellant's testimony and demeanor when he testified during the guilt phase of the trial. See McGee v. State, 852 S.W.2d 551, 559 (Tex.App.-Tyler 1992, pet. ref'd); Stewart v. State, 995 S.W.2d 187, 190 (Tex.App.-Fort Worth 1999, pet. ref'd). Appellant had an opportunity during his testimony at the guilt phase to tell the jury more about himself and his life, and he chose not to do so. We agree with the State that the portion of its closing argument dealing with appellant's failure to present the jury more evidence about himself and his life was not of such a character that the jury would necessarily and naturally take it as a comment on appellant's failure to testify during the punishment phase, and, therefore, that portion of the argument was not improper. See Bustamante, 48 S.W.3d at 765. Further, that portion of the State's argument was proper as a direct response to the defense argument that the jury "did not know enough about Jonathan Williams." See Franks, 574 S.W.2d at 127; Nethery, 692 S.W.2d at 703. However, the following portion of the State's argument was clearly an improper comment on appellant's failure to testify at the punishment phase: "He had an opportunity to express his remorse to you about the crime he's committed if he feels it. And he chose not to do so." The issue is whether a mistrial is required as a result of this improper comment. The improper comment was brief and the State did not emphasize the comment. It is significant that the trial judge took prompt and immediate measures to cure the misconduct. He clearly instructed the jury, "The instructions are very clear that you cannot consider the fact that he did not testify in this punishment phase of trial . . and you cannot consider it for any purpose whatsoever." As the court alluded to, the instructions in the charge also contained a clear and specific admonishment that the jury could not refer to or allude to the fact that the defendant did not testify, nor take it into consideration for any purpose whatsoever. The jury was clearly and purposefully instructed not to take the fact that appellant failed to testify into account during their deliberations, and there is an appellate presumption that the jury will obey the instructions to disregard, barring the most blatant improprieties. See Waldo v. State, 746 S.W.2d 750, 752-53 (Tex.Crim.App. 1988). The comment by the prosecutor was meant to raise doubt in the jury's mind as to whether appellant could be rehabilitated. However, the State had presented very strong evidence already that appellant was a habitual criminal who had little hope of being rehabilitated because he had not been rehabilitated in the past, despite five prior convictions. The past crimes placed before the jury were two misdemeanor drug possession convictions, followed by a criminal trespass, followed by a felony drug possession and a felony drug possession with intent to distribute. In light of these prior convictions, which show a failure to rehabilitate, the improper argument of the prosecutor during closing argument probably had little effect on the punishment the jury assessed. See Archie, 221 S.W.3d at 700. Based on our analysis of the relevant factors, we hold that the trial court did not abuse its discretion in overruling appellant's motion for mistrial. Appellant's first issue is overruled.
Conclusion
We affirm the judgment.Testimony was given through a Spanish language interpreter. However, it was discovered during Marcos's examination that the complainants' first language is Nahuatl, a native American language, and their second language is Spanish. None of the victims spoke enough English to testify without an interpreter.
At the guilt phase, appellant denied committing the offense. The "opportunity to express remorse" clearly referred to the punishment phase.