No. 14-03-00246-CR
Opinion Filed August 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 182nd District Court, Harris County, Texas, Trial Court Cause No. 901,187. Affirmed.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
CHARLES W. SEYMORE, Justice.
Appellant, Quincy Lamon Moore, appeals a conviction for aggravated robbery. In five issues, appellant contends: (1) the evidence is legally and factually insufficient to support his conviction, (2) the trial court erred by refusing to instruct the jury on a lesser included offense, (3) the trial court erred by admitting evidence of an extraneous offense, (4) the trial court erred by admitting evidence under the excited utterance exception to the hearsay rule, and (5) the trial court erred by admitting evidence of a weapon similar to the one used to commit the offense. We affirm.
I. FACTUAL BACKGROUND
On January 31, 2002, complainant Enrique Morales went to the car wash after dropping his daughter off at school. While he was drying his car, he saw a second car pull up next to him. Appellant got out of this car, and approached Morales with a gun, yelling at Morales to "get on the floor." When Morales failed to comply, appellant hit him over the head with the gun. Morales ran backwards, and appellant pursued him and shot him in the abdominal area. Morales then heard a second shot and saw appellant's car leave the car wash. Because the fire station is less than a block from the car wash, the paramedics were able to arrive within minutes and began to evaluate Morales' gunshot. While the paramedics were tending Morales, the first police officer, Officer Gwen Manuel, arrived. Officer Manuel testified that it took her approximately four minutes to arrive at the scene after receiving the call. She spoke briefly to Morales, who explained that appellant came up to him and wanted some money, but that he didn't have any money, so appellant ran after him and shot him. At trial, Morales further stated that, because he was in "severe pain" at the time of this conversation, he did not want to talk and was not able to give the police much information. A second officer, Officer Draycott, arrived at the scene and was able to view a security videotape from the car wash. Officer Draycott testified that the videotape showed appellant drawing his weapon and pursuing Morales out of the car wash with his weapon drawn. Officer Draycott further testified that the videotape also showed appellant come back to the car wash, enter another car wash bay, and repeat the same process with a second victim. Officer Draycott also observed that appellant picked something up off of the ground after chasing his second victim and ran back to his car before exiting the car wash. Police officers in the area soon spotted appellant in the vehicle recorded on the security tape. When the officers began following appellant's car, appellant fled. The ensuing chase resulted in an accident with one of the police cars, and culminated in a second accident, which caused appellant to leave his car and try to escape on foot. Appellant scaled a fence and tried to force his way into a nearby apartment complex, where he was apprehended and arrested by police. Appellant was eventually taken to the Houston downtown jail. After being processed, around 5:45 p.m. that afternoon, he was interviewed by police, and this interview was videotaped. The videotape was admitted into evidence at trial. On the videotape, after being read his rights, appellant discussed his activities at the car wash with a police officer. Among other things, appellant admitted that he was carrying a gun when he pulled into the car wash, and that he fired two shots with this gun, one shot each at two different victims. When asked what he said to the first man he approached, appellant responded that he was communicating with his "body language," and that he expected the man to "throw me his wallet," like on television. With respect to the second man that he shot, appellant admitted that the man gave him "a five" and a couple "of ones." This and other evidence was submitted to the jury, which found that appellant was guilty of aggravated robbery. II. CHALLENGES TO LEGAL AND FACTUAL SUFFICIENCY
In his first issue, appellant contends the evidence is legally and factually insufficient to support his aggravated robbery conviction. Appellant claims that there was insufficient evidence that he acted in the course of committing a theft, primarily because there was no evidence that appellant orally demanded property, or actually removed any property, from complainant. In reviewing the legal sufficiency of the evidence, we evaluate 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." King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). This standard does not permit us to re-weigh the evidence to substitute our judgment for that of the jury. Id. In reviewing the factual sufficiency of the evidence, we consider all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence may be factually insufficient in one of two ways. First, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, evidence contrary to the verdict may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 485. A conviction for aggravated robbery requires a showing, beyond a reasonable doubt, that a person, while in the course of committing theft of property, with intent to obtain and maintain control of property, intentionally and knowingly threatens or places another person in fear of imminent bodily injury and death. TEX. PEN. CODE ANN. § 29.02 29.03 (Vernon 2003). There must also be proof that a deadly weapon was used or exhibited during the course of the offense. Id. Applying these standards, we find that the evidence was both legally and factually sufficient to support the conviction for aggravated robbery. It is well-established under Texas law that the actual commission of a theft is not a prerequisite to the commission of robbery. Autry v. State, 626 S.W.2d 758, 762 (Tex.Crim.App. 1982); Johnson v. State, 541 S.W.2d 185, 186-87 (Tex.Crim.App. 1976). Instead, "the intent to steal can be inferred from an appellant's actions or conduct." King v. State, 157 S.W.3d 873, 874 (Tex.App.-Houston [14th Dist.] 2005, pet. filed) (holding evidence both legally and factually sufficient to support aggravated robbery conviction under similar circumstances); Chastain v. State, 667 S.W.2d 791, 795 (Tex.App.-Houston [14th Dist.] 1983, pet. ref'd). As this Court noted in King, in each of these cases, "the appellate courts held that the evidence was sufficient to convict the appellants of aggravated robbery based on overall circumstances, despite the fact that there was no evidence of a demand being made." King, 157 S.W.3d at 874. This case is not materially different. Here, there was ample evidence to support a finding that appellant acted in the course of committing a theft, with the intent to obtain and maintain control of Morales' property. Appellant and Morales did not have any sort of prior relationship. Nevertheless, while Morales was washing his car early one morning, appellant approached Morales with his gun drawn, yelled at him to get "on the floor," then hit him over the head with the gun. When Morales ran instead of complying with appellant's demand, appellant shot him. Appellant thereafter ran back to the car wash, robbed a second person, and fired another shot before jumping into his car and driving away. While being tended by the paramedics, Morales told a police officer that appellant had tried to rob him. Appellant himself, in a confession taped later that day, admitted that, when he pointed the gun at Morales, he was communicating with his body language and expected Morales to throw his wallet. Applying the standards for a legal sufficiency challenge, this evidence makes clear that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See id. at 875. Therefore, we conclude that the evidence is legally sufficient to support appellant's conviction. We also conclude that the evidence is factually sufficient to support appellant's conviction. Reviewing the evidence neutrally under Zuniga, 144 S.W.3d at 484-85, we find that the evidence of guilt is not too weak to support the verdict beyond a reasonable doubt, and that the contrary evidence is not so strong that the reasonable doubt standard could not have been met. See id. Accordingly, we overrule appellant's first issue. III. CHALLENGE TO REFUSAL TO INSTRUCT ON A LESSER INCLUDED OFFENSE
In his third issue, appellant contends that the trial court erred in refusing to instruct the jury on the lesser included offense of attempted robbery. Recasting his arguments about evidentiary sufficiency, appellant argues that the trial court should have submitted the attempted robbery instruction given questions about whether he actually intended to steal anything from Morales. A two pronged test applies to determine whether a defendant is entitled to a lesser included offense instruction: (1) the lesser included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser included offense. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985); Rosseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993). Here, only the second prong of the test is at issue, and the question is whether the jury could have rationally found appellant guilty only of attempted robbery. See Feldman v. State, 71 S.W.3d 738, 750-51 (Tex.Crim.App. 2002). This requirement may be satisfied if the evidence either affirmatively refutes or negates an element establishing the greater offense, or the evidence is subject to two different interpretations, one of which negates or rebuts an element of the greater offense. Hendrix v. State, 150 S.W.3d 839, 850 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (quoting Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App. 1996)). In examining the evidence, we "may not consider whether the evidence is credible, controverted, or in conflict with other evidence." Id. After reviewing the record, we conclude that the evidence in this case would not have permitted the jury to rationally find appellant guilty only of attempted robbery. As discussed in the previous section, the evidence supports the aggravated robbery conviction, and appellant points to no evidence that affirmatively refutes or negates any element of that offense. Moreover, examining all of the evidence in the record, there is no differing interpretation of the evidence which would permit a rational finding that appellant is guilty only of attempted robbery. Appellant's taped confession conclusively establishes that appellant intended to rob Morales when he pointed the gun at him, chased him, and ultimately shot him, and Morales himself told the first officer on the scene that appellant wanted his money. Nothing in the record provides a basis for disbelieving these statements in order to support a lesser included finding of attempted robbery. See, e.g., Hanson v. State, 55 S.W.3d 681, 699 (Tex.App.-Austin 2001, pet. ref'd) ("Because the evidence would not allow a rational finding that, if guilty, appellant was guilty only of conspiracy to commit robbery, a jury instruction on the lesser included offense was not warranted."). Accordingly, we overrule appellant's third issue. IV. EVIDENTIARY CHALLENGES
In his second, fourth and fifth issues, appellant challenges the trial court's evidentiary rulings. Specifically, he contends that the trial court erred by: (1) admitting evidence of an extraneous offense, (2) admitting evidence under the excited utterance exception to the hearsay rule, and (3) admitting evidence of a photograph of a weapon similar to the one used to commit the offense. Trial court rulings on the admission of evidence are reviewed for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). Under this standard, we are limited to determining whether the record supports the trial court's ruling. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). We may only reverse when "the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003) (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992)). A. Admission of an Extraneous Offense
In his second issue, appellant argues that the trial court erred in admitting evidence of the fact that appellant also robbed a second car wash patron at gun point. Appellant contends that this evidence was inadmissible under Texas Rule of Evidence 404(b) because it tended to prove he acted in conformity with the other crime when he pointed a gun at Morales. Appellant also contends that the admission of this evidence was unduly prejudicial under Texas Rule of Evidence 403. "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." TEX. R. EVID. 404(b). Such evidence may, however, be admissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id.; see also Feldman, 71 S.W.3d at 754. The proponent of such evidence must satisfy the trial court that the extraneous act has relevance apart from its tendency to prove character conformity. Feldman, 71 S.W.3d at 754. If he does so, then the trial court has discretion to admit the evidence. Id. The record reveals that the State proved the evidence of appellant's other crime was relevant for purposes other than any tendency to prove appellant's character or action in conformity therewith. The other crime was particularly relevant to appellant's intent to rob Morales, a fact disputed at trial, which appellant continues to challenge on appeal. In addition, evidence of the other crime, which occurred just minutes after the crime for which appellant was being tried, showed the absence of any mistake by appellant. Proof of this sort is expressly contemplated by the language of Rule 404(b), and considering the evidence for these purposes was not error. See Navarro v. State, 154 S.W.3d 795, 798 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (holding evidence admissible under Rule 404(b) to prove both appellant's intent to kill and absence of mistake in attempting to kill his intended victim). Moreover, the trial court did not err in concluding that this evidence was admissible under Texas Rule of Evidence 403. "While the trial court may decide that the evidence is admissible under Rule 404(b), it may nevertheless exclude that evidence if it determines that the probative value of the extraneous act evidence is substantially outweighed by unfair prejudice." Feldman, 71 S.W.3d at 754. Evidence is unfairly prejudicial only "if it inflames and prejudices the jury to the point that it creates an undue tendency to suggest a verdict on an improper basis, such as an emotional basis." See Soto v. State, 156 S.W.3d 131, 136 (Tex.App.-Fort Worth 2005, pet. ref'd) (listing factors that courts may consider in determining the admissibility of evidence of other crimes). In this case, because appellant contested his intent to steal, evidence of appellant's other crime was highly probative of a disputed issue. Accordingly, it was not error for the trial court to conclude that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. See, e.g., Navarro, 154 S.W.3d at 798 ("Because appellant's intent was at issue, the probative value of appellant's prior bad acts thus outweighs the danger of unfair prejudice."). We overrule appellant's second issue. B. Admission of an Excited Utterance
In his fifth issue, appellant contends that the trial court erred in admitting Morales' out-of-court statement to Officer Manuel that appellant tried to take his money. Appellant argues that this statement is not an excited utterance because the statement was not made during the event in question, and a significant amount of time had passed before the statement was made. Excited utterances, or statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition," are excepted from the hearsay rule. TEX. R. EVID. 803(2). This hearsay exception is based on the belief that a statement made as a result of a startling event or condition is involuntary and does not allow a declarant an adequate opportunity to fabricate, thereby insuring the trustworthiness of the statement. Couchman v. State, 3 S.W.3d 155, 159 (Tex.App.-Fort Worth 1999, pet. ref'd). To qualify as an excited utterance, a statement must: (1) be the product of a startling event, (2) be made while the declarant is dominated by the emotion, excitement, fear, or pain of the event, and (3) relate to the circumstances of the startling event. Ross v. State, 154 S.W.3d 804, 808 (Tex.App.-Houston [14th Dist.] 2004, pet. filed). The critical factor is whether the emotions, excitement, fear, or pain of the event still dominated the declarant at the time of the statement. Zuliani, 97 S.W.3d at 596. Here, the record supports the trial court's admission of this statement into evidence. Morales expressly testified that he was in a fair amount of pain at the time he made the statement to Officer Manuel. The paramedics were assessing Morales' condition after he had been shot and hit on the head with a gun. In Morales' own words, at this time he "had a very severe pain," and "didn't want to talk." This testimony clearly establishes that Morales was still dominated by the pain of the shooting when he made the statement. See Zuliani, 97 S.W.3d at 596. In addition, the record shows that the statement occurred only a short time after the shooting. Officer Manuel was the first officer on the scene, and she stated that she arrived approximately four minutes after receiving a call about the incident. Although it is impossible to tell exactly how many minutes had passed since appellant shot Morales, it is clear from the record that the statement was likely made less than an hour after the event in question occurred. The passage of this short time period clearly satisfies any time limitation on the excited utterance exception. See id. (statements made twenty hours after event satisfied exception where declarant remained scared and tired); Ross, 154 S.W.3d at 810 (statements made at uncertain times, but "likely no more than a few hours" after the event, satisfied exception). The trial court did not err in admitting this statement because it is admissible under the excited utterance exception to the hearsay rule. Accordingly, we overrule appellant's fifth issue. C. Admission of Evidence of a Similar Weapon
In his fourth issue, appellant contends that the trial court erred by admitting a picture of a firearm that was similar to the firearm used in the offense. A weapon similar to that actually used in a crime may be admissible "as an aid to the jury in interpreting and understanding the oral testimony adduced at trial." Simmons v. State, 622 S.W.2d 111, 114 (Tex.Crim.App. 1981) (approving admission, under an abuse of discretion standard, of a weapon that is "`like,' `similar to,' `much the same,' `pretty much the same,' `more or less the same,' `something like,' `not unlike,' `comparable,' `resembles,' `closely resembles,' `close,' `same but not the exact one,' or described by the use of comparable words or phrases"). In this case, the State used a photograph of a similar gun to assist Morales with his testimony. Morales testified that the picture of the gun was similar to the gun that he saw appellant with; the gun in the photograph was the same color, the same shape, and looked like the gun appellant shot him with. Morales used the picture to explain how appellant had handled the gun during the robbery. The State offered the photograph of the similar gun for demonstrative purposes. There was no error in allowing the State to use a photograph of a similar gun for this demonstrative purpose. See Fletcher v. State, 902 S.W.2d 165, 167 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). Although the State offered the photo of the similar gun for demonstrative purposes only, there seems to have been some confusion about the purpose for which the photograph was ultimately admitted into evidence. When appellant's counsel sought to confirm that the photograph was being admitted for demonstrative purposes only, the trial court responded negatively, implying that the photograph was generally admissible. Assuming this confusion was not merely a miscommunication, but amounted to error, it was harmless error. Any improper admission of this evidence is governed by the harm analysis applicable to non-constitutional error. See TEX. R. APP. P. 44.2(b). Conducting this analysis, we will not overturn a criminal conviction if, after examining the record as a whole, we have a fair assurance that the error did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). Here, there is no real possibility that the photograph of the similar weapon had any real impact on the jury. Later in the trial, the State admitted into evidence both the actual gun used in the offense, and a photograph of the actual gun used in the offense. Because the jury was shown the actual weapon used in the offense, no error arose from the admission of a photograph of a similar weapon. See Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App. 1999) (holding that error in admitting evidence was harmless due to admission of other evidence proving the same fact). Accordingly, we overrule appellant's fourth issue. The judgment of the trial court is affirmed.