Opinion
No. 04-02-00422-CR
Delivered and Filed: March 30, 2005. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-2697, Honorable Bill M. White, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Victor Moreno appeals the trial court's judgment convicting him of robbery, sentencing him to twenty years confinement in the Texas Department of Criminal Justice — Institutional Division, and fining him ten thousand dollars. We affirm the trial court's judgment. 1. In his first issue, Moreno argues the trial court's discussion with counsel regarding pending motions and resolution of these motions in Moreno's absence violated article 28.01 of the Texas Code of Criminal Procedure. We disagree. Article 28.01 provides in relevant part that "[t]he defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding." Tex. Code Crim. Proc. Ann. art. 28.01 (Vernon 1989). A trial judge's and counsel's in camera meeting, during which the dismissal of a juror is suggested by one of the attorneys and agreed to by the two attorneys, is not a "proceeding" within the meaning of article 28.01, because resolution of the juror issue "was the result of negotiation not of an adversarial proceeding . . . [and] was one to which the trial court consented, not one which it ordered." Lawton v. State, 913 S.W.2d 542, 550 (Tex.Crim.App. 1995), cert. denied, 519 U.S. 826 (1996). So it is here. Before Moreno was brought into the courtroom, the attorneys announced to the court that the State had complied with various discovery motions and counsel had agreed to suppress Moreno's oral statements; therefore, a hearing on these motions was unnecessary. The judge then initialed each of the motions, indicating they had been "resolved." Because this discussion was not a "proceeding" within the scope of article 28.01, Moreno's presence was not required. See id. Moreno also argues that article 28.01 was violated when his attorney met privately with the State's attorney and agreed to waive a ground in Moreno's motion to suppress. However, article 28.01 does not require defendant's presence at meetings between counsel. See id. We therefore overrule Moreno's first point of error. 2. In his second point of error, Moreno argues the trial court "unreasonabl[y] restricted the time to conduct voir dire." We again disagree. Because "[t]he conduct of voir dire rests largely within the sound discretion of the trial court," "trial courts may impose reasonable restrictions on the exercise of voir dire examination." Boyd v. State, 811 S.W.2d 105, 115 (Tex.Crim.App.), cert. denied, 502 U.S. 971 (1991). In reviewing whether a trial court placed unreasonable time limitations on voir dire and thus abused its discretion, we are to consider (1) whether the party attempted to prolong the voir dire, (2) whether the party was precluded from asking proper voir dire questions, and (3) whether the party was permitted to examine prospective jurors who actually served on the jury. McCarter v. State, 837 S.W.2d 117, 119 (Tex.Crim.App. 1992). At the beginning of voir dire, the trial judge instructed counsel that they would not have "strict limitations, but let's try to get through in an hour." After approximately two hours of general and individual questioning, the court stated that "[c]ounsel for the State, both sides, you've used about the allotted time, so let's proceed." Nonetheless, when individual questioning of the prospective jurors continued for another thirty minutes, the court did not interrupt. Finally, when the court asked counsel if they were "ready to cut the jury," Moreno's attorney indicated he was; he neither objected that he had been precluded from conducting a thorough voir dire nor indicated there were additional questions he would like to ask. The record further reflects that Moreno's attorney was afforded the opportunity to individually question the first thirty-seven prospective jurors and did question each of the prospective jurors who ended up on the jury. Under these circumstances we hold the trial court did not unreasonably limit voir dire and thus did not abuse its discretion. See id. 3. In his third point of error, Moreno contends "the trial court was without jurisdiction due to a fundamentally defective complaint." Moreno contends that a defective, fraudulent, and forged witness's statement, which Moreno refers to as "the complaint," formed the basis of the charges against him; therefore, the charges should be dismissed. We disagree. Moreno was charged by indictment, not by complaint and information; and the record is silent as to what evidence was presented to the grand jury. There is therefore no record support for Moreno's assertion that the witness's statement formed the basis of the charges against him. 4. In his next point of error, Moreno argues the court's charge impermissibly lessened the State's burden of proof by allowing the jury to find him guilty if he threatened or placed the victim "in fear of imminent bodily injury or death" when the indictment charged that Moreno threatened or placed the victim "in fear of imminent bodily injury and death." However, this method of pleading and charging robbery has been expressly approved by the Texas Court of Criminal Appeals. Robinson v. State, 596 S.W.2d 130, 133-134 (Tex.Crim.App. 1980); see Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991), cert. denied, 504 U.S. 958 (1992) (holding that jury should be charged the differing methods of committing the offense in the disjunctive even though the indictment alleges the methods in the conjunctive). 5. Moreno also argues the trial court erred by failing to charge the jury on the lesser included offense of theft. We again disagree. A defendant is entitled to a jury charge on a lesser-included offense only if "(1) the lesser-included offense [is] included within the proof necessary to establish the offense charged, and (2) some evidence . . . exist[s] in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense." Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001). "It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather, there must be some evidence directly germane to a lesser included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted." Cantu v. State, 939 S.W.2d 627, 646 (Tex.Crim.App.), cert. denied, 522 U.S. 994 (1997). If a defendant presents no evidence showing he is guilty only of the lesser offense, and the State does not introduce such evidence, a jury instruction on the lesser-included offense is not required. Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App. 1994). To prove the charged offense of robbery, the State was required to prove that "in the course of committing theft . . . and with the intent to obtain or maintain control of the property, [Moreno] . . . intentionally or knowingly threaten[ed] or place[d] another in fear of imminent bodily injury or death." Tex. Pen. Code Ann. § 29.02(a) (Vernon 2003). Theft is thus a lesser included offense of robbery when, as in this case, the facts adduced at trial showed a completed theft. See Jacob v. State, 892 S.W.2d 905, 909 (Tex.Crim.App. 1995). Because the State's theory of the case was that Moreno committed robbery by conduct that placed the victim in fear of imminent bodily injury, it was required to prove conduct the victim found threatening and that the victim's fear of imminent bodily injury was reasonable under the circumstances. Welch v. State, 880 S.W.2d 225, 227 (Tex.App.-Austin 1994, no pet.); Williams v. State, 827 S.W.2d 614, 616 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). Accordingly, Moreno was entitled to a charge on the lesser included offense of theft only if there is some evidence that would permit a rational juror to find that Moreno did not intentionally or knowingly commit any act that placed the victim in reasonable fear of imminent bodily injury. There is no such evidence. Moreno did not testify. Accordingly, evidence of the robbery came from the Lupita Garcia, the only employee working at the convenience store at the time of the robbery, and the videotape of the robbery. Garcia testified that she and her six year-old daughter were in the store one morning around 9:00 a.m. when a man, whom Garcia identified as Moreno, came in, walked quickly up to the counter, started banging on it, and demanded that Garcia open the register and give him money. Then, in an effort to open the cash drawer, he reached over the counter and started banging hard on the computer screen. When he was unsuccessful, he repeatedly reached over the counter and tried to grab Garcia, all the while yelling at her. To elude him, Garcia backed away from the counter and moved sideways to the other register. She tried to push the alarm button but was unsuccessful, which made her more fearful. She then picked up the telephone to call 911 but was unable to dial the numbers. When Moreno reached over the counter to try to get into the second register, Garcia hit his arm with the telephone receiver. Moreno then left the store. Garcia testified that she felt threatened as soon as Moreno started pounding on the counter and yelling at her. She did not know if he had a weapon; but he was very aggressive. She did not know what he was going to do; and she was afraid that any second he would hurt her or her daughter, who was in the open in the front of the store, watching the whole time. Garcia kept hoping her daughter would get out of the way. She was so frightened that her reactions were not normal; she thus does not remember what she said or that she consciously decided to say or do anything. The jury also saw the store's videotape, which substantiates Garcia's testimony about Moreno's aggressive actions by showing him repeatedly banging on the counter and computer screen, reaching far over the counter and trying to grab Garcia, and, unable to open the cash register, reaching over the counter and tearing off several lottery tickets. On the videotape, Garcia asks Moreno soon after he walked in "where's the gun?" Garcia yells to Moreno to "get out of here" as she hits him with the telephone and calls him names as he runs out of the store. Finally, the video shows that, as soon as Moreno leaves the store, Garcia calls her daughter to come around the counter, breaks into tears, and clutches her daughter. Moreno argues the evidence raises an issue as to whether Garcia was in fear of imminent bodily injury and points to the fact he did not have a weapon and did not make any verbal threats; and Garcia called him names, hit him with the telephone, and did not cry until he left the store. We disagree. Not only did Garcia unequivocally testify that Moreno's actions threatened her and made her afraid for her daughter's and her safety and she did not know if he had a weapon, but no rational juror watching the videotape could conclude that Moreno's actions did not place Garcia in fear of imminent bodily injury or that her fear was unreasonable. That Garcia cursed at Moreno, hit him with the telephone, and did not show visible signs of fear until Moreno left the store does not negate or rebut her testimony that while Moreno was in the store, she was afraid he was going to hurt her or her daughter. See e.g., Walker v. State, No. 05-03-00144-CR, 2003 WL 22332406, *1 (Tex.App.-Dallas, Oct. 14, 2003, pet. ref'd) (not designated for publication); Rodriguez v. State, No. 08-02-00504-CR, 2004 WL 1693748, * 4 (Tex.App.-El Paso, July 29, 2004, no pet.) (not designated for publication). Because no evidence raised the lesser included offense of theft, the trial court did not err in refusing to charge the jury on theft. 6. In his fifth point, Moreno contends the evidence was factually "insufficient to support two key elements — `intent' and `fear of imminent death.'" On the intent element, Moreno argues the evidence is insufficient to establish he had the "intent to obtain and maintain control of . . . three (3) lottery tickets" as alleged in the indictment and as incorporated in the jury charge because the evidence is unequivocal that the robber demanded cash. Although it is true that the robber demanded cash, it is also true that the robber reached over the counter to the lottery ticket dispenser, tore off some tickets, and left the store with the tickets without paying for them. Garcia's testimony that the stolen lottery tickets were the convenience store's property over which she had care, custody, and control is sufficient evidence to support jury's finding on the "intent to obtain or maintain control of the property" element of the charge; it is immaterial that Moreno also intended to deprive the store of money. See Brown v. State, 61 Tex. Crim. 334, 136 S.W. 265, 266 (1911) (holding that defendant's theft of a coat "through force and fear" with the intent of taking money he believed to be in the coat was robbery even though there was no money in the coat and defendant soon abandoned it). Moreno also argues the State offered no evidence that he threatened or placed Garcia in fear of death. However, the State was required to prove only that Moreno placed Garcia in fear of imminent bodily injury or death. See Robinson, 596 S.W.2d at 133-134. 7. In his sixth point of error, Moreno argues the trial court erred in overruling his Rule 402 and Rule 403 objections to the portion of the videotape that depicted events after Moreno left the store. We disagree. Evidence is relevant if it tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. The portion of the videotape about which Moreno complains shows that, immediately after Moreno walked out the door, Garcia called for her daughter, held her, and repeatedly asked if she was alright. Within thirteen seconds, as Garcia reached the 911 operator and still held her daughter, Garcia started to break down, whimpering and having a hard time speaking. And within thirty seconds, both Garcia and her daughter were crying and holding each other. As noted above, the State was required to prove as an element of its case that Garcia was in fear of imminent bodily injury during the course of the theft. Garcia's actions after Moreno's departure are probative of the emotions she felt while he was in the store: her immediate concern for the safety of her daughter and her loss of control within seconds of Moreno's departure logically serve to make it more probable that Garcia was afraid while Moreno was in the store. Accordingly, this portion of the videotape showing Garcia's collapse immediately after Moreno's departure is relevant. See Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1991) (on reh'g). Moreno also argues the videotape of Garcia's "dramatic display of emotion" should not have been admitted under Rule 403 because it "inflamed the passions of the jury" and misled the jury into believing that fear occurring after Moreno left was sufficient to convict. We again disagree. As we stated above, this portion of the videotape is highly probative of Garcia's state of mind during the offense, particularly in light of defense counsel's focus on Garcia's lack of any visual expression of fear during the time Moreno was in the store. And, although the emotional content of the videotape was certainly prejudicial to Moreno, it was not unfairly so. Moreno's actions created a highly emotional situation; and the State had the burden of proving the fact and nature of Garcia's fear. That the evidence was in the form of a videotape was not unfair to Moreno. Nor do we agree that the tape misled the jury regarding the elements of the offense. It is not possible to reasonably infer from the tape that Garcia became afraid only after Moreno left; the only reasonable inference is that she did not visibly display her fear until the immediate threat was gone. Accordingly, the trial court did not abuse its discretion in admitting this portion of the videotape. See Montgomery, 810 S.W.2d at 389-90 (non-exclusive list of factors to consider in conducting a Rule 403 balancing test); State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App. 2005) ("A trial court is entitled to broad discretion in ruling on a Rule 403 objection."). 8. In his seventh point of error, Moreno raises complaints about the field identification procedure used by the police. He first argues the identification should have been suppressed because he had not been given his Miranda warnings; therefore, he argues, the identification procedure violated his right against self-incrimination and his right to counsel. We disagree. "[C]ompelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance" and it therefore does not violate the privilege against self-incrimination. United States v. Wade, 388 U.S. 218, 221-233, 87 S.Ct. 1926, 1929-30, 18 L.Ed. 2d 1149 (1967). And because the identification occurred in the field, before Moreno was arrested and before any formal charges were filed, the right to counsel had not attached. See Kirby v. Illinois, 406 U.S. 682, 688-90, 92 S.Ct. 1877, 1881-83, 32 L.Ed. 2d 411 (1972) (plurality op.) (holding there is no right to counsel at police station showup conducted after defendant's arrest but before formal charges are filed); Barley v. State, 906 S.W.2d 27, 36 (Tex.Crim.App. 1995) (holding no right to counsel before the initiation of adversary judicial proceedings), cert. denied, 516 U.S. 1176 (1996). Moreno also argues that, because Garcia's field identification of him was unduly suggestive and unnecessary, it tainted her in-court identification; and both should have been suppressed. We again disagree. "The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability." Manson v. Brathwaite, 432 U.S. 98, 107, 97 S.Ct. 2243, 2249, 53 L.Ed. 2d 140 (1977). An identification is unreliable if "under all the circumstances . . . there is `a very substantial likelihood of irreparable misidentification.'" Id. 432 U.S. at 116, 97 S.Ct. at 2254 (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). The factors to consider in assessing reliability "include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and length of time between the crime and the confrontation." Neill v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). We review the trial court's ruling on the admissibility of the identification for abuse of discretion. Loserth v. State, 963 S.W.2d 770, 771 (Tex.Crim.App. 1998). Because the ultimate question of the reliability of the identification is a mixed question of law and fact that does not turn on credibility and demeanor, we conduct a de novo review. Id. at 773. However, "the underlying Biggers factors are, taken individually, historical facts," and we thus consider them "deferentially in a light favorable to the trial court's ruling." Id. "The factors, viewed in this light, should then be weighed de novo against the `corrupting effect' of the suggestive pretrial identification procedure." Id. at 773-74. The robbery occurred a little after nine in the morning. It was clear to partly cloudy and sunny outside; and the inside store lights were on. According to Garcia, she had a good opportunity during the robbery to see the robber's face. He was just five feet from her, across the counter, and "in [her] face" the whole time. She got a good look at his face, approximate height, the color of his skin, and the clothes he had on. Within seconds of Moreno's departure, Garcia told the 911 operator that he was wearing khaki shorts, a white shirt, and a baseball cap and "looked like he was a white guy." At trial, Garcia testified that she was so upset at the time all she could remember was what the robber was wearing; however, she testified that she told the officer she would recognize the robber if she saw him. Within a minute of the radio dispatch, patrol officer Pete Sweeney parked about two blocks from the store in the direction Garcia said the robber had gone. Several minutes later, Officer Sweeney saw Moreno come out of a brushy area behind a building, walking at a fast pace away from the store. Seeing Officer Sweeney, Moreno started walking faster; and Officer Sweeney decided to stop him. Officer Sweeney noted that, although Moreno was wearing khaki shorts, he was not wearing a white shirt or a baseball cap. And he was not "white," but a very "light-skinned Hispanic." After Officer Sweeney relayed this information, he was told to detain Moreno. Detective Carlos Gonzalez, who investigated the case, then told Sweeney to take Moreno to the convenience store parking lot. Detective Gonzalez testified he decided to conduct a field identification because Garcia's memory would be better then than at a later time. And, if she did not identify Moreno, he could be released and the officers could continue searching for the robber who was most likely still in the area. About twenty minutes after the robbery, Detective Gonzalez had Sweeney take Moreno out of the police car so Garcia could look at him. Moreno was handcuffed at the time and standing next to a uniformed police officer and his squad car. Garcia had a clear, unobstructed view of Moreno from thirty to forty feet away. Detective Gonzalez testified that as soon as Garcia saw Moreno, she said "That's him. That's the guy who robbed me." She did not hesitate or equivocate in her identification. Garcia looked at Moreno for a minute or two while he turned each way and then told the detective she was "positive, one hundred percent sure." Garcia noted Moreno had changed his shirt and no longer wore a baseball cap; however, she testified she recognized his face as that of the robber. About the same time Garcia was identifying Moreno, other officers found a baseball cap and a gray shirt hidden behind the building where Officer Sweeney had first seen Moreno. They also found three unscratched lottery tickets, later identified as the ones taken in the robbery, in the gutter along the path Moreno had taken before Sweeney detained him. After Garcia positively identified Moreno, she was shown the clothes that were found and said they were the cap and shirt the robber was wearing. The field identification procedure used was certainly suggestive; and there was no showing that the one-on-one show-up was necessary. However, the procedure served legitimate purposes, see Garza v. State, 633 S.W.2d 508, 512 (Tex.Crim.App. [Panel Op.] 1982) (op. on reh'g), and did not violate due process if the identification was otherwise reliable. Manson, 432 U.S. at 107; Biggers, 409 U.S. at 199. After reviewing the evidence in light of the Biggers factors, we hold the identification was reliable. Garcia was attentive and had a clear view of the robber at the time of the crime and unequivocally identified him about twenty minutes later, even noting that he had changed his clothes. The discrepancies in her description were slight: she said she thought his skin color was "white" when in fact he is a "light-skinned Hispanic," and she said the shirt he was wearing was white, when the shirt found near where Moreno was detained was gray. Under these circumstances, we conclude that the unnecessarily suggestive procedure did not create a substantial likelihood of misidentification. Therefore, the trial court did not abuse its discretion in admitting evidence of the field identification. See Jackson v. State, 657 S.W.2d 123, 129 (Tex.Crim.App. 1983); Sanchez v. State, 705 S.W.2d 304, 305 (Tex.App.-San Antonio 1986, no pet.). The record also clearly reveals that Garcia's in-court identification of Moreno was based on her observation of him during the crime, not on the suggestive field-identification. Accordingly, the trial court did not abuse its discretion in admitting Garcia's in-court identification of Moreno. See Jackson, 657 S.W.2d at 129; Payne v. State, 838 S.W.2d 668, 669-71 (Tex.App.-Dallas 1992, no pet.). 9. Finally, Moreno argues his trial counsel rendered ineffective assistance. We disagree. To establish ineffective assistance of counsel a defendant must show (1) his trial counsel's performance was deficient; and (2) the deficient performance prejudiced him to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999). We presume that counsel's actions fell within the wide range of reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). To rebut the presumption that counsel's trial decisions were based on sound strategy, a defendant must show counsel's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). The alleged ineffectiveness must be affirmatively shown in the record. Id. Moreno first argues his trial counsel was ineffective by announcing at the pretrial hearing that he was waiving the second ground in his motion to suppress the identification. However, the record is silent as to counsel's reasons for doing so. The record is likewise silent on Moreno's complaint that his trial counsel failed to keep him adequately informed. With respect to these complaints, therefore, Moreno has failed to establish that his trial counsel's performance was deficient. See id. Moreno next argues his trial counsel did not adequately cross-examine Garcia. However, "[t]he suggestion that cross-examination should have been conducted in another manner does not rebut the presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Resendiz v. State, 112 S.W.3d 541, 548 (Tex.Crim.App. 2003), cert. denied, 124 S.Ct. 2098 (2004). Moreover, the discrepancies in Garcia's description were probed at trial; and counsel effectively cross-examined Garcia about the lack of a weapon or any verbal threats. Finally, Moreno contends his trial counsel admitted his guilt during closing. We disagree with Moreno's characterization of the argument. Moreno's trial counsel argued to the jury that it could find that Moreno was not guilty because "it wasn't him;" alternatively, the jury could find that, although Moreno may have committed a theft, he did not commit robbery because he did not make any threats. To make this alternative argument was a sound strategy decision. We therefore overrule Moreno's final point of error and affirm the trial court's judgment.
Moreno also complains the trial court abused its discretion by not viewing the tape before it was shown to the jury. We disagree. The trial court based its rulings on the accurate descriptions of the content of the tape by the attorneys for the State and Moreno.