Opinion
No. 05-03-01166-CR.
Opinion issued May 5, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F02-52287-JL. Affirmed.
Before Justices MORRIS, WHITTINGTON, and JAMES.
OPINION
Francisco Mata Arriaga appeals his conviction for aggravated robbery. After his motion to suppress evidence was denied, appellant pleaded guilty to the charged offense. The jury found he used or exhibited a deadly weapon during commission of the offense and assessed punishment at ninety years' confinement. In two points of error, appellant contends the trial judge erred in overruling his motion to suppress evidence and his objection to improper jury argument. We affirm. Sara Brieden spent the morning of June 19, 2002 at a Dallas-area hospital with Elizabeth, her ten-month-old daughter who was being tested for cystic fibrosis. She drove home to get a bottle for Elizabeth before continuing to a second hospital for further testing. Elizabeth had fallen asleep in the car, and Sara decided to leave her in the locked car while she ran in the house for the bottle. Upon opening her front door, Sara saw appellant walking toward her. Sara asked appellant who he was and why he was in her house. In response, appellant grabbed her car keys and demanded her engagement ring. Sara pleaded with appellant to let her get her baby from the car, but he would not let her go outside. He demanded she tell him "where everything was." Sara told him of some jewelry in the bedroom which he took. When she told him they had no money at the house, he became angry and punched her in the face, breaking her nose and shattering her jaw. He continued to beat her with his hands, and later, attempted to hit her with a large water decanter. Appellant continued to demand money, saying he needed it to get back to his country. Although Sara wrote him a check, he began beating her with metal hair curling irons. Finally, he bound her hands and feet and left the house. Sara managed to get her feet free and ran to the door. Appellant was in her car. Sara ran to the car and begged appellant to let her get Elizabeth out. He drove off with Sara running after him, screaming. A few motorists stopped, and a woman came out of her house to help. Appellant abandoned Elisabeth in a residential driveway approximately two miles from her home where she was later found, unhurt. Several days later, he was arrested. In his first point of error, appellant contends the trial judge erred in denying his motion to suppress Sara's in-court identification of appellant. Because we conclude appellant has waived any error, we do not address the merits of his complaint. On appeal, appellant first argues Sara could not have identified him because her opportunity to view him during the assault was severely limited. Appellant concedes the "duration of the event was not adduced at trial" but conjectures it could not have lasted more than a few minutes. Appellant next argues the lineup was suggestive because the detective told Sara "the suspect was in custody immediately before [the lineup] was emailed to her." During the hearing, however, appellant argued only that the act of sending an email photographic lineup rendered the lineup irreparably suggestive because it allowed the identifying witness to "download, print, and study" the lineup "over and over again." Because his argument on appeal is not the same argument raised before the trial judge below, we conclude appellant has waived his complaint regarding his motion to suppress. See Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986) (holding if objection made in trial court differs from complaint on appeal, defendant has not preserved any error for review); Empty v. State, 972 S.W.2d 194, 197 (Tex. App.-Dallas 1998, pet. ref'd) (same). We overrule his first point of error. Under his second point of error, appellant contends the trial judge erred in overruling his objection to improper jury argument. Appellant claims the error was harmful and reversible because it contributed to his ninety-year sentence. The State argues appellant failed to preserve error and that the statement was a plea for law enforcement. During closing argument at punishment, the prosecutor said, "[I]f you give this Defendant an opportunity to get back on the streets again, and if he does what their experts predict he will do, then you have let your fellow citizens in this community down." Appellant objected to the prosecutor's comment as an "improper argument to the jury." The judge overruled the objection. Assuming appellant's objection was sufficient to preserve error and that the trial judge should have sustained the objection, we nevertheless conclude any error was harmless. Rule 44.2(b) provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). In determining harm under that standard in improper argument cases, we balance the following factors: (i) the severity of the misconduct (prejudicial effect), (ii) curative measures taken, and (iii) the certainty of the punishment assessed absent the misconduct. Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000) (modifying factors used in Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) to assess harm in improper jury argument during punishment). Addressing the first factor, we note that the "degree of misconduct, if any, was relatively mild" in this case. See Martinez, 17 S.W.3d at 693. During argument, the prosecutor summarized the evidence showing appellant brutally beat Sara, shattering her jaw and breaking her nose. He continued to beat her with various objects at the house, including two curling irons. Despite her pleading, he stole Sara's vehicle with ten-month-old Elizabeth strapped in her car seat. The prosecutor also detailed appellant's actions and his increasingly violent tendencies following Sara's attack, including his attack on fifty-seven-year-old Frederick Surley. Surley was leaving a bar in Irving when appellant approached and asked for a ride to Oak Cliff. Surley declined. Appellant stabbed Surley in the stomach and jumped into Surley's van. He slammed the door on Surley's arm, and Surley could not get loose. Appellant drove the van in reverse to knock Surley loose. The prosecutor stated "the only way any of us is going to be safe, is if he's in jail" and asked for the jury to assess life confinement. He then made the complained-of statement which, taken in context, appears to be a plea for law enforcement. We conclude the first Mosley factor carries very little weight in the present case. The second factor requires little analysis. There was no curative instruction. The State did nothing to emphasize the comment made, and the comment was an insignificant portion of the State's entire argument at punishment. This factor bears little weight in this case. The third Mosley factor weighs in the State's favor. Appellant's crime against Sara was very brutal. At the time of trial, she was still undergoing extensive surgeries to fix the damage inflicted by appellant. Appellant crushed Sara's upper jawbone. About one month later, Sara got a mass infection in her upper jaw, and the remaining bone died. As a result, Sara's four front teeth had to be removed as did the remaining pieces of her jaw. She had a bone graft in January 2003, and a week before trial, doctors implanted titanium implants into her mouth. She would not have front teeth in her mouth for at least another six to nine months because the implants had to heal. Doctors would not be able to correct the damage done to her nose until the jaw and dental surgeries were complete. Several witnesses who lived near Sara testified about the day she was beaten. One woman testified she had "just never seen anyone beaten up that badly." Surley testified appellant attacked him on June 25, 2002 in the parking lot of a bar. Appellant first threatened him, saying he had a gun. When appellant tried to force his way into Surley's van, Surley punched him. Appellant reached around the van door and stabbed Surley in the stomach. Appellant jumped in the van and slammed the door, trapping Surley's arm in the door. Surley tried to get loose but could not. He punched appellant through the window and tried to pull away from the vehicle. Appellant put the van in reverse, dragging Surley until the van hit a truck. Surley was knocked clear, and appellant sped away. Surley was hospitalized for four days. Rogelio Gutierrez testified appellant robbed and attacked him on June 25, 2002. Initially, appellant asked for some money. When Gutierrez gave him some cash, appellant demanded the rest of his money. He then attempted to take Gutierrez's van but Gutierrez took the keys and ran into a nearby liquor store to call police. While he was talking to the store clerk, Gutierrez saw appellant take the stereo from his van. As Gutierrez walked back to his van, another truck pulled up. Appellant robbed the driver and started beating him. Gutierrez got a gun from his van and pointed it at appellant. He told appellant to leave the other driver alone. The police ultimately arrived and, after a brief chase, arrested appellant. This evidence shows appellant was a violent, aggressive individual who threatened and injured several people during a relatively short period of time. Given the brief and relatively mild comment made by the prosecutor and the strength of the evidence supporting appellant's ninety-year sentence, we conclude any error associated with the comment was harmless. We overrule appellant's second point of error. We affirm the trial court's judgment.
Even assuming appellant preserved this issue, his complaint lacks merit. Sara testified at the hearing and at trial that she viewed appellant's face numerous times as he beat her and that she looked into his eyes on several occasions. The attack took place around noon, and Sara viewed her attacker both inside and outside the home. She testified appellant was "in her face" and "on her." She also testified she was able to identify appellant from the photograph immediately. See Wilson v. State, 15 S.W.3d 544, 553 (Tex. App.-Dallas 1999, pet. ref'd) (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)); see also Loserth v. State, 963 S.W.2d 770, 772 (Tex.Crim.App. 1998). Furthermore, the detective who emailed the photographic lineup to Sara specifically testified he did not tell Sara the suspect was in custody. Finally, when Sara identified appellant in open court, she testified that irrespective of the lineup shown to her, she had independent recollection of appellant as the person who attacked her that day. See Ibarra v. State, 11 S.W.3d 189, 196 (Tex.Crim.App. 1999) (holding in-court identification proper because victim positively identified appellant and testified in-court identification was based on what he observed on morning of offense and not on intervening photographs he may have viewed); McFarland v. State, 928 S.W.2d 482, 507-08 (Tex.Crim. App. 1996) (holding that even assuming pre-trial lineup was improper, in-court identification would have been admissible if victim's ability to identify appellant had origin independent from pre-trial procedure).