Opinion
No. 01-07-00607-CR
Opinion issued April 17, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 179th District Court Harris County, Texas, Trial Court Cause No. 1032992.
Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.
MEMORANDUM OPINION
A jury found appellant, Antoine Antonio Brown, guilty of aggravated robbery. After the jury was unable to reach a unanimous verdict as to punishment, the trial court declared a mistrial. A second jury was chosen and assessed punishment at 29 years' confinement. In two points of error, appellant contends that (1) the trial court erred by admitting evidence of two extraneous offenses to show intent, and (2) the evidence is legally and factually insufficient. We affirm.
BACKGROUND
On July 4, 2005, Debra Hillhouse was working the morning shift as a manager of a Diamond Shamrock gas station. She drove to a Shell gas station to check the gas prices, and a woman tapped on her window to ask for directions. Hillhouse glanced up, and a man also approached the front of her vehicle. At this point, Hillhouse looked around and noticed a white, four-door vehicle with two people inside. Appellant, dressed as a woman, stepped out the vehicle and made a gesture to the other two people standing next to Hillhouse's car. Appellant shook his finger at the two people near Hillhouse's car "like they weren't doing what they were supposed to be doing." The man near the front of Hillhouse's car told the woman who had asked directions to "[d]o what you're f — — — g supposed to be doing." The woman then pulled out a gun, put it to the side of Hillhouse's head, and told Hillhouse that if she did not give up all of her things, she would be killed. Hillhouse complied and gave them her purse, wallet, and watch. After taking Hillhouse's possessions, the man and the woman told her that she would be killed if she told anyone about this incident because they now had all of her personal information. The man, the woman, and appellant got in the white car and drove away. Later that day, police chased a white, four-door car with four suspects inside. The suspects ran from their car to hide in a heavily wooded area, but all four suspects, including appellant, were apprehended. Appellant and one of his accomplices were dressed as women. Hillhouse's personal property was recovered from the white, four-door vehicle. Hillhouse correctly identified appellant in a photographic lineup. In the guilt-innocence stage of the trial, appellant objected to the State offering evidence of two extraneous aggravated robbery offenses committed by appellant within the same two-day period as the Hillhouse robbery.SUFFICIENCY OF THE EVIDENCE
In his second point of error, appellant contends that the evidence was legally and factually insufficient to prove that (1) he participated in the robbery because he was merely present at the scene and (2) a firearm was used during the commission of the robbery.Standard of Review
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence to substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we are required to afford "due deference" to the jury' determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006).The Law
A person commits robbery if, in the course of committing theft of property and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003). The indictment alleged that appellant committed aggravated robbery by exhibiting a deadly weapon, namely a firearm, in the course of committing a robbery. See Tex. Penal Code Ann. §§ 29.03(a)(2), 1.07(a)(17)(A) (Vernon 2003 and Supp. 2007). Appellant can be criminally responsible through his own conduct or the conduct of another if he was "acting with intent to promote or assist the commission of an offense" by soliciting, encouraging, directing, aiding, or attempting to aid another person to commit the offense. Tex. Penal Code Ann. §§ 7.01(a), 7.02(a)(2) (Vernon 2003).Party to an Offense
Appellant argues that he was merely present at the scene and did not participate in the robbery. However, the evidence viewed in light most favorable to the verdict shows that appellant was a party to the crime. Hillhouse testified that she saw appellant making gestures to his friends that made her feel as if something bad was about to happen. She also testified that appellant appeared to be acting as a lookout for the man and woman who approached her car. Additionally, the extraneous offense evidence shows that appellant had the requisite intent to participate in this offense. In both extraneous offenses, the victims testified that appellant snatched their purses, and in all three instances, appellant was identified in a photographic lineup, along with his accomplices, as parties to the crime. Also, Texas law has long recognized that evidence of flight or escape may be admissible to reflect the defendant's guilt if the evidence is relevant to the offense under prosecution. Burks, 227 S.W.3d at 148. The courts may look to the events before, during, and after the commission of the crime to determine if the defendant was a party to the offense. See Goff v. State, 931 S.W.2d 537, 545 (Tex.Crim.App. 1996). Here, appellant evaded police and hid in the woods when he and his accomplices were tracked down by police officers based on the description of the car and suspects that the victims gave. Property belonging to the victims was also found in the vehicle. Based on this evidence, a rational jury could have concluded that appellant was a participant in this offense. Viewing the evidence in a neutral light, we cannot say that the verdict seems "clearly wrong and manifestly unjust," or is against the great weight and preponderance of the evidence regarding whether appellant was a party to the offense. Although appellant testified that he was asleep during the robbery after taking seven Xanax pills with alcohol, Hillhouse testified that she saw appellant get out of the car, motion to his accomplices as if he were directing their actions, and act as their lookout. The jury was entitled to believe Hillhouse and disbelieve appellant. See State v. Ross, 32 S.W.3d 853, 854 (Tex.Crim.App. 2000). Accordingly, we hold that the evidence is legally and factually sufficient to show that appellant was a party to the offense.Use of a Firearm
Appellant also argues that the evidence was legally and factually insufficient to establish that a firearm was used because a firearm was never recovered. Specifically, appellant contends the indictment alleged that the deadly weapon used was a "firearm," but Hillhouse identified it only as a "gun." Proof of the use and exhibition of a deadly weapon is an essential element of the offense of aggravated robbery. Gomez v. State, 685 S.W.2d 333, 336 (Tex.Crim.App. 1985). However, when the State alleges that the deadly weapon is a firearm, it assumes the additional burden of proving that a firearm was used. Id. at 336. In Carter v. State, 946 S.W.2d 507, 510 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd), the State alleged in the indictment that a deadly weapon, specifically, a firearm, was used in the offense. The victims testified that the defendant used a "gun," and that he threatened to shoot them if they did not comply with his demands. Id. at 511. Additionally, the victims identified a .25 caliber automatic pistol as being the type of gun that appellant used to threaten them. Id. Based on this evidence, the court of appeals held that the evidence was legally sufficient to show that a firearm was used in the commission of the offense. Id. Similarly, in this case, Hillhouse testified that appellant's accomplice put a "gun" to her head and threatened to kill her if she did not give them her possessions. At trial, the prosecutor showed Hillhouse a firearm, which was used for demonstrative purposes only. Hillhouse testified that the demonstrative weapon accurately resembled the weapon that was used against her and that there was "no doubt in [her] mind" that the weapon used against her was a "real weapon." Under the reasoning of Carter, we hold that the evidence was legally sufficient to show that the weapon used in the offense against Hillhouse was a firearm. Viewing the evidence in a neutral light, we cannot say that the verdict seems "clearly wrong and manifestly unjust," or is against the great weight and preponderance of the evidence on the firearm issue. Appellant points out that, on cross-examination, Hillhouse admitted that she was not a "gun expert," and that she did not know if the gun was real. She only knew that the gun was placed against her head and that she was in fear for her life. Appellant himself testified that he saw one of his codefendants throw a black and silver gun out of the car while they were being chased by police, but that he "couldn't tell" whether the gun was real. There is no evidence suggesting that the gun was a toy. See Brown v. State, 212 S.W.3d 851, 863 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (holding evidence factually sufficient to show that firearm was used even though there was conflicting evidence, and toy gun was later recovered). The evidence was legally and factually sufficient to show that a deadly weapon, namely a firearm, was used in the offense. We overrule point of error two.EXTRANEOUS OFFENSES
In his first point of error, appellant contends the trial court erred by admitting evidence of three extraneous offenses. As part of the State's case-in-chief, the prosecutor sought to admit three extraneous offenses to show appellant's intent to commit robbery. Specifically, the State introduced evidence of the aggravated robbery of of Lissette Rosette, the aggravated robbery of Maria Gutierrez, and the aggravated assault of Christine Maranan. The first aggravated robbery was committed against Lissette Rosette on July 3, 2005 at 1:30 am at a Wal-Mart parking lot. The second aggravated robbery was committed against Maria Gutierrez on July 4, 2005 around 1:00 am at a Kroger parking lot. The aggravated assault was committed against Christine Maranan on July 4, 2005 around 6:15 am at a Wal-Mart.The Extraneous Offense Testimony
Lissette Rosette testified that she, her mother, her little brother, and her nephew had been to a Wal-Mart late at night. When they returned to their car, a woman dressed as a man tapped on the window. Rosette did not roll down the window. Appellant, who was also dressed as a woman, approached Rosette's mother as she was getting into the car and asked for directions. When Rosette's mother tried to close the door, appellant blocked it and then demanded that the women give him their purses. Another perpetrator — this one a man dressed as a man — approached the car with a gun. Rosette handed her purse to appellant, but appellant and the man with the gun kept demanding that Rosette's mother also surrender her purse. Rosette grabbed her mother's purse and handed it to the man with the gun. Appellant, the man with the gun, and the other man dressed as a woman then fled in a white, four-door car. Rosette later identified appellant from a photo array as the man dressed as a woman who had initially approached her mother and asked for directions. Maria Guttierez testified that on July 3, 2005, she went to visit some friends after church and stayed until around midnight. She left with her three children and two friends of her children. On the way home, Guttierez stopped at a Kroger store to get some milk and cereal. She and the children returned to her car around 1:00 a.m. on July 4th. As Guttierez was loading the groceries in her car, a white, four-door car pulled up and three people got out. Two were men dressed as women. Gutierrez identified appellant as one of the two men dressed as women. As they approached, one of them asked for directions. Gutierrez noticed that appellant was swinging a knife. Another man then placed a gun against Gutierrez's head and demanded her purse. She indicated that it was on the seat, and appellant reached in and took it. The white car then moved, and the three people got back in and drove away. Gutierrez later identified appellant from a photo array as the man dressed as a woman who was carrying a knife and who took her purse.Standard of Review
We review a trial court's evidentiary rulings under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Pierre v. State, 2 S.W.3d 439, 442 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). We recognize that a trial court must be given wide latitude to admit or exclude evidence. Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App. 1992); Pierre, 2 S.W.3d at 442. If the trial court's evidentiary ruling is within the zone of reasonable disagreement, we will not disturb the ruling. Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App. 2005); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990); Sunbury v. State, 33 S.W.3d 436, 441 (Tex.App.-Houston [1st Dist] 2000, no pet.). Conversely, if the trial court's ruling "is so clearly wrong as to lie outside that zone within which reasonable persons might disagree," then we must reverse for abuse of discretion. Burks v. State, 227 S.W.3d 138, 147 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (quoting McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005)).Rule 404(b)
Evidence of other crimes, wrongs, or acts is not generally admissible to prove character conformity, but may be admissible for other purposes, such as proof of motive, opportunity, intent, or absence of mistake or accident. Tex. R. Evid. 404. Extraneous offense evidence may become admissible to prove intent only if the intent required for a conviction for the primary offense is a contested issue in the case. McGee v. State, 725 S.W.2d 362, 364 (Tex.App.-Houston [14th Dist.] 1987, no pet.). Appellant argues that, at the point in the trial when the extraneous offense evidence was admitted, appellant's intent was not yet an issue because he had not yet testified. Intent can be characterized as a contested issue if (1) the required intent for the primary offense cannot be inferred from the act itself or (2) the accused presents evidence to rebut an inference that the required intent existed. Id. It is true that, as appellant argues, he had not yet testified in such a way as to rebut an inference that the required intent existed. However, his questioning of Hillhouse clearly raised the defensive issue of his lack of intent. During cross-examination of Hillhouse, the following exchange took place:[Defense counsel]: Now, Ms. Hillhouse
[Hillhouse]: Yes, ma'am.
[Defense counsel]: — you state that you saw Mr. Brown get out of the car.
[Hillhouse]: Yes, ma'am.
[Defense counsel]: When you saw him get out of the car, you're saying he stood right there by the door, or where did he go?
[Hillhouse]: He stayed at the door with the door open.
[Defense counsel]: And he didn't say anything to you; is that correct?
[Hillhouse]: No, ma'am. He was — no, ma'am, he did not.
[Defense counsel]: Could you hear anything he said?
[Hillhouse]: No, ma'am.
[Defense counsel]: Do you know if he could have been motioning for the other two to come on back to the car?
[Prosecutor]: That would call for speculation, Judge.
[Trial court]: Sustained.
[Defense counsel]: Well, you didn't hear him say anything?
[Hillhouse]: No, ma'am, I did not.
. . . .
[Defense counsel]: Did you see Mr. Brown with any type of weapon?
[Hillhouse]: No, ma'am.
[Defense counsel]: So, its safe to say you don't really know his purpose for getting out? You did see him get out of the car? He never left the door?
[Hillhouse]: No, ma'am. I don't know what his purpose was, no, ma'am.By questioning Hillhouse about appellant's "purpose" in getting out of the car, appellant was suggesting that he had a "purpose" other than a criminal intent to participate in a crime. Furthermore, a defendant need not raise his defensive issue in his case-in-chief before the State is permitted to introduce extraneous offenses under Rule 404(b). See Powell v. State, 63 S.W.3d 435, 439 (Tex.Crim.App. 2001) (holding that defensive theory could be raised in opening statements and cross-examination of complainant, thereby permitting State to introduce extraneous offenses during case-in-chief). Appellant also argues that the extraneous offensives had no relevance other than to show character conformity. Appellant claims that the "extraneous offenses were not so similar to the [charged] robbery that the jury could infer Appellant's intent and involvement in [this] case." We disagree. To show intent from extraneous offenses, the courts require only that the facts of the charged offense and the extraneous offense be substantially similar, not exact. See Johnson v. State, 932 S.W.2d 296, 302 (Tex.App.-Austin 1996, pet. ref'd) (citing Robinson v. State, 701 S.W.2d 895, 898 (Tex.Crim.App. 1985). Sufficient similarity may be shown by proximity in time and place or by a common mode of committing the offense. Phat Van Bui v. State, 68 S.W.3d 830, 837 (Tex.App.-Houston [1st Dist.] 2002, no pet.). The Gutierrez and Rosette robberies were substantially similar to the charged robbery because all of the robberies involved similar facts: 1) each robbery began with a man dressed as a woman asking for directions; 2) a man dressed as a man would then approach the car with a gun and threaten the victims; 3) the getaway car was a white, four-door car; 4) at least two males dressed as females were involved in each offense; 5) each offense occurred after midnight in a parking lot in the same general vicinity; and 6) the offenses occurred within a short period of time. Therefore, we hold that the trial court did not abuse its discretion in admitting the extraneous offenses to show appellant's intent pursuant to Rule 404(b).