Opinion
No. 01-07-00461-CR
Opinion issued May 14, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 1031454.
Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
MEMORANDUM OPINION
A jury found appellant, Vance Edward Johnson, guilty of the offense of robbery and, after finding true the allegations in two enhancement paragraphs that he had two prior felony convictions, assessed his punishment at confinement for life. In three points of error, appellant contends that the trial court erred in denying his motion to suppress evidence, admitting testimony about an extraneous offense, and denying his motion for a mistrial after the admission of evidence of the extraneous offense. We affirm.
See Tex. Penal Code. Ann. § 29.02 (Vernon 2003).
Factual Background
Sam Sbaiti, the complainant, testified that on June 10, 2005, he was working as a bank teller for Compass Bank when appellant, with a black bag in hand, approached him and said, "Put all the money on the counter, or I'm going to blow your fucking head off." The complainant placed the money on the counter because appellant "was concealing his hand in the bag as though he had a gun." While the complainant was putting money on the counter, appellant kept telling him, "If you don't hurry up, I'm going to blow your head off. I will fucking kill you." When the complainant said, "[T]hat's all I have," appellant told him to turn around and take four steps. After taking four steps, the complainant looked back and saw that appellant was gone. Federal Bureau of Investigation ("FBI") Special Agent R. Sharp testified that on June 20, 2005, ten days after the Compass Bank robbery, a man robbed a nearby Sterling Bank. After obtaining a description of the man who had robbed the Sterling Bank, Sharp "started patrolling the area looking" for any sign of the robber. As he was driving on the road that runs behind the Sterling Bank, Sharp noticed appellant walking towards the University of Houston. Because appellant matched the general description of the man who had robbed the Sterling Bank, Sharp pulled up next to him and, after identifying himself as a special agent with the FBI, asked appellant for his identifying information, i.e., "date of birth, social [security number], address, employment, [and other] general things that [Sharp typically] would ask somebody in an interview." After appellant explained that he was a student at the University of Houston and provided the requested identifying information, Sharp "[w]ent back to the office and began preparing [his] paperwork." However, when Sharp began checking the information that appellant had given him, he discovered that although appellant's name was accurate, other information was false. When Sharp discovered that appellant had provided him with inaccurate information, he began to suspect that appellant may have been involved in the Compass Bank robbery. Sharp showed the complainant a photographic array containing a photograph of appellant and five other men, and the complainant identified appellant as the man who had robbed him at the Compass Bank on June 10, 2005. Based on that identification, a police officer obtained an arrest warrant for appellant, and Sharp drove to appellant's residence, accompanied by FBI Special Agent Cheatam, to arrest appellant. When they arrived at appellant's residence, Sharp saw appellant exit the house, so he called appellant's name. Appellant pointed over Sharp's shoulder and said that the man that Sharp was looking for was over there. Then appellant ran and attempted to scale a fence, but before appellant could climb over the fence, "Cheatam was able to grab him." Sharp and Cheatam then "turned [appellant] over to the custody of the Houston Police Department." Houston Police Department Sergeant D. Ryza testified that he investigated appellant's involvement in the robbery of Compass Bank. On June 22, 2005, after appellant "had been placed under arrest by FBI agents," Ryza went to appellant's house, and Kathy Alvarez, who said she had been staying at the house with appellant "on and off" for approximately three weeks, gave Ryza consent to search the home. Ryza and four other police officers searched the house and found approximately $3,000 in cash hidden throughout the house.Motion to Suppress
In his third point of error, appellant argues that the trial court erred in denying his motion to suppress evidence of the money seized at his house because the State did not demonstrate that the warrantless search of his house was justified. Our standard for reviewing a trial court's ruling on a motion to suppress evidence is bifurcated; we give almost total deference to a trial court's determination of historical facts and review de novo the trial court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). We afford "the same amount of deference to [a] trial court's rulings on `application of law to fact questions' . . . if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor." Montanez v. State, 195 S.W.3d 101, 106 (Tex.Crim.App. 2006) (quoting Guzman v. State, 955 S.W.2d 85, 89 (1997)). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of a witness's credibility. Maxwell, 73 S.W.3d at 281. Accordingly, the trial court may choose to believe or to disbelieve all or any part of the witnesses' testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Unless the trial court abuses its discretion by making a finding unsupported by the record, we defer to its fact findings and will not disturb them on appeal. Flores v. State, 177 S.W.3d 8, 13-14 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). In reviewing a trial court's ruling, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App. 1996). At the pretrial hearing on appellant's motion, Officer Ryza testified that when he arrived at appellant's house, appellant had already been arrested. When Ryza knocked on the front door of the house, Alvarez arrived at the door and, indicating that she "had custody of the house at that time," agreed to let Ryza and the other police officers search the house. After obtaining Alvarez's written consent, Ryza and four other officers searched appellant's house. Appellant testified that Alvarez did not have "permission to control who came into and out of the house when [he] left" and that she was staying at his house only "for that one day." After hearing the evidence at the pretrial hearing, the trial court found that Alvarez "was staying at the house, that she was in control of the house, and that she legally could give consent to search the house." Warrantless searches are presumed to be unreasonable, but there are well-recognized exceptions. Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007). A third party may consent to a search when she has "equal control over and authority to use the premises being searched." Maxwell, 73 S.W.3d at 281. Mutual use of the property by a third party gives rise to common authority over the premises such that the third party may consent to a warrantless search. Id. at 281-82. Here, the trial court's findings that Alvarez "was staying at the house" and "was in control of the house" are supported by Sergeant Ryza's testimony. Based on this mutual use of appellant's residence, Alvarez had the authority to consent to the warrantless search of appellant's house. See id. Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress evidence. We overrule appellant's third point of error.Testimony About the Sterling Bank Robbery
In his first point of error, appellant argues that "the trial court erred in admitting, over defense objection, evidence of an extraneous offense, the robbery of Sterling Bank on June 20, 2005, . . . during the State's case-in-chief" because this evidence "was not relevant and its probative value was substantially outweighed by unfair prejudice and confusion of the issues." Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Tex. R. Evid. 403. The opponent of the evidence must not only demonstrate the negative attributes of the evidence but must also show that these negative attributes "substantially outweigh" any probative value. Montgomery v. State, 810 S.W.2d 372, 377 (Tex.Crim.App. 1991) (op. on reh'g). Here, after the complainant testified about the Compass Bank robbery, the trial court ruled that the State could elicit testimony about the Sterling Bank robbery, which occurred then days after the Compass Bank robbery, because appellant had made his "identity an issue." The only witness who referenced the Sterling Bank robbery was Special Agent Sharp, who testified that:[Sharp:] During the [Sterling] bank robbery, the victim teller gave the bank robbery suspect a dye pack, which is exploding red ink that gets on the money. And after we had finished our interviews inside the bank, we started patrolling the area looking to see if they had thrown the dye pack out, which commonly happens. They want to get rid of it.Sharp then began patrolling the area, looking for the dye pack or for anyone who matched the physical description of the man who had robbed the Sterling Bank. Sharp spoke to appellant because he was in the area and matched the physical description of the bank robber. After obtaining appellant's name and other identifying information, Sharp did not believe that appellant had been involved in robbing the Sterling Bank. However, Sharp began to suspect that "maybe [appellant] was a suspect in the Compass Bank robbery on June 10, 2005" when he discovered that appellant had provided him with incorrect identifying information. Appellant did not object, during Sharp's testimony, to Sharp's brief reference to the Sterling Bank robbery. However, after the State had rested its case, appellant complained that Sharp's testimony about the Sterling robbery was "highly prejudicial." In response to appellant's complaint, the trial court stated that it would "consider an instruction to disregard." After appellant rested, the trial court instructed the jury as follows:
[The trial court:] At this time, members of the jury, I'm going to instruct you to disregard any evidence about any robbery or alleged robbery other than the alleged robbery on or about June 10, 2005, of [the complainant].Generally, a timely instruction to disregard cures an error associated with an improper question and answer, even one regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783-84 (Tex.Crim.App. 2000); see Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992) (concluding that testimony referring to inadmissible extraneous offense was rendered harmless by instruction to disregard because testimony "was not so inflammatory as to undermine the efficacy of the trial court's instruction to disregard"). Moreover, we presume that a jury will obey a trial court's instruction to disregard unless "the evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds." Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999) (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987), cert. denied, 484 U.S. 905, 108 S. Ct. 248 (1987)); see Baker v. State, 177 S.W.3d 113, 126 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (citing Gardner, 730 S.W.2d at 696). Only an extremely inflammatory statement overcomes this presumption. See Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991) (holding that instruction to disregard cured prejudice created by prosecutor's argument that compared defendant to Adolf Hitler); Logan v. State, 698 S.W.2d 680, 683-84 (Tex.Crim.App. 1985) (holding that instruction to disregard cured prejudice created by prosecutor's reference to homosexual relationship between defendant and her alibi witness). Here, the only testimony about the Sterling Bank robbery came from Special Agent Sharp, who testified that he talked to appellant because appellant appeared to match the physical description of the man who had robbed the Sterling Bank. Sharp never stated that appellant robbed the Sterling Bank. In fact, he testified that he did not believe that appellant had been involved in the Sterling Bank robbery. Sharp's testimony explained how appellant became a suspect in the Compass Bank robbery. Appellant does not explain in his briefing, nor do we find evidence in the record, that Sharp's fleeting reference to the Sterling Bank robbery was so inflammatory that it could not have been cured by the trial court's instruction. Accordingly, we hold that any possible error in admitting the testimony about the Sterling Bank robbery was cured by the trial court's instruction to disregard. See Ovalle, 13 S.W.3d at 783-84. We overrule appellant's first point of error.