Opinion
No. 05-14-01375-CR
03-31-2016
WILLIE JAMES PITTS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause No. F-1361758-I
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Lang-Miers
A jury found appellant Willie James Pitts guilty of aggravated robbery with a deadly weapon and assessed punishment at forty-seven years' imprisonment. In two issues on appeal, appellant argues that the trial court erred by not including a jury charge on the lesser included offense of robbery and by making statements concerning the reasonable doubt standard during voir dire. Because all dispositive issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court's judgment.
BACKGROUND
Erica Hernandez Molina testified that she was working as a cashier at a gas station one night when a man entered the store. He picked out a drink from the store cooler, "started looking around in the store, making sure no one else was in there" but her, and approached the register. When Molina told the man the cost of his drink, "he jumped over the counter and attacked" her. Molina testified that he was "constantly hitting" her with his fist in her face and "[e]verywhere[,]" "[a]nywhere it landed," while calling her a derogatory term and demanding that she give him the store's money. Molina also testified that, in addition to hitting and kicking her, "when he knocked [her] on the ground, he also had this . . . paint scraper." She believed "he took it out of his pocket because we had no tool of that in the store." She testified, "[H]e cut me on my head. And after that, . . . [t]rying to cut me, he grabbed me[.]" She testified he put the tool at her neck and she felt it on her neck, but that, "instead of cutting" her, the "tool got caught" on her shirt and she "was able to grab ahold of it."
The jury viewed store surveillance videos that depicted the robbery. During her testimony and as the videos were played, Molina described the portions of the videos that showed "where he pulls the metal scraper from his back pocket[,]" cuts her head, grabs her, and "threatens to cut [her] on [her] throat if" she does not "hand him over any cash." She testified that he tore the register off the counter so that Molina was unable to open it. Molina gave appellant some money that the store kept under the counter. When she showed him this cash, she was "holding on" to "the metal scraper at that point." She dropped the scraper when the police entered the store and the scraper appeared in a photograph "where [she] dropped it." She testified that another photograph was "a close-up view of that metal scraper[.]" She also testified that the "blood from [her] head" "was constantly dripping all over[,]" she had bruises from her head to her feet, and her "face was really swollen." Molina testified that she received five staples on her head "for the cut from the metal scraper" at a hospital that night. Molina also testified that, because the man knocked her glasses off, Molina was unable to identify the person who attacked her.
Molina testified that a store co-worker, Hunter Callicut, heard Molina's calls for help and ran to assist by hitting the man with "dust pan with a stick." The man then attacked Callicut with the stick and "constantly hit[] him until he was knocked on the ground completely unconscious." Callicut also testified that the man entered the store and attacked Molina, Callicut attempted to assist Molina by fighting the man, and the man hit Callicut many times until Callicut became unconscious.
On cross-examination, Molina testified that she did not mention being cut by a metal scraper or that appellant said he was going to cut her throat open in her written statement regarding the incident that she gave to Dallas Police Department Detective Jeffrey Loeb while she was at the hospital that night. But she testified that she told Detective Loeb that she was cut with "some type of metal object" that she could not "make out what the name was" of the "tool" and that she wrestled it from appellant's hand. She also testified that she told doctors that she was cut with a metal object. She testified that it was not "possible that [she] was cut or injured by" the "till that was pulled down on [her] or being hit" and that she did not recall the till ever making contact with her when it fell. In addition, she testified that she might not have "noticed everything clear because of [her] blurry vision." When asked what a video reflected that she took out of her pocket, Molina at first testified that it was the metal scraper, but then, when corrected by defense counsel, she testified that the object was her cell phone. She also testified that the photo featuring the scraper "that cut" her did not show any blood on the scraper.
She also testified that appellant appeared to be intoxicated or high when he attacked her and that appellant yelled "shoot me, shoot me, that he didn't care" to the police when they arrived at the store.
On redirect examination, Molina testified that her written statement to police was not complete. She testified that she was "just given a short amount of time to write" the statement and "just felt the need to just write down about the attack, but [she] didn't fully explain what had happened." She testified that she was scared and in shock when she was attacked, and that at the hospital she was "just happy to be alive because [she] could have died that night."
Various Dallas police officers testified that they arrived at the scene, attempted to apprehend appellant, pursued him on foot and by car, and apprehended him a few blocks from the store. Dallas police officers Jennifer Castleberg and Mario Gomez identified appellant in court as the person whom they apprehended that evening. Officer Castleberg testified on cross-examination that "nowhere" in her police report of the incident "is there any mention of any metal scraper or any knife, gun or . . . any weapon from the scene[.]"
In addition, Detective Robert Lawrence with the Dallas Police Department identified appellant as Willie James Pitts who was arrested that evening.
Detective Jeffrey Loeb of the Dallas Police Department testified that, when he spoke with Molina at the hospital that night, she "mentioned to [him] that she thought the suspect had a knife, some sort of—some sort of knife or metal object in his hand during the attack." Loeb further testified, "I went back later and looked at the crime scene photos, and I did see some sort of bladed object on the floor during the—when I reviewed the—the photographs of the crime scene. And I went back, and I ended up collecting the knife later." Loeb testified that it was "some sort of drywall scraper or putty knife." Loeb also testified that the "metal scraper that [he] located in the photos" was the same metal scraper admitted as a State's exhibit. Loeb testified that he collected the scraper from a drawer in the store, he thought, two days after the crime occurred. In addition, Loeb testified that the metal scraper was not tested for fingerprint or DNA evidence because "the suspect's identity, in [his] opinion, was not a question." He also testified that multiple people had handled the scraper. Detective Loeb testified that the scraper was capable of causing death or serious bodily injury and that he saw Molina's injuries and that she had "multiple staples in her head and a large gash to her head[.]" He also testified that the evidence unit did not take photos of Molina's injuries because they were unable to locate her from the address information they received.
On cross-examination, Loeb testified that Molina's written statement describing the incident did not mention a metal scraper or a knife. Loeb also testified that he did not "hurry her up" and that Molina had "plenty of time to put what she wanted to put in the statement[,]" but that Molina was "ready to leave the hospital pretty quickly." Loeb testified that, on the store videos, one cannot "see any type of cutting or anything cut with a scraper by the defendant on the victim," but "[y]ou can just see a scraper in the hand of the suspect." Loeb testified that he "found" the scraper in the videos on the day after the incident, and "physically located it" the next day. He went to the store, and one of the managers said "it had been recovered" and "opened up a drawer and gave it to" him. Loeb also testified that there was no blood on the blade area of the scraper, but he believed there was blood on the back of the blade, although he could not be positive because the scraper was not tested.
The State's exhibits included a photograph of the area behind the store counter where the attack took place that depicted a metal scraper laying on the floor, a close-up photograph of the metal scraper, and the metal scraper.
The jury found appellant guilty of aggravated robbery with a deadly weapon. See TEX. PENAL CODE ANN. § 29.03 (West 2011). Appellant pleaded true to two enhancement paragraphs alleging two prior felony convictions for possession of a controlled substance and aggravated assault causing serious bodily injury. The jury found the enhancement paragraphs true and assessed appellant's punishment at forty-seven years' imprisonment. Appellant filed a motion for new trial, which was overruled by operation of law. Appellant then filed this appeal.
LESSER INCLUDED OFFENSE
In his first issue, appellant argues that the trial court erred by denying his request that the jury charge include the law and an instruction applying the law of the lesser included offense of robbery. A defendant is entitled to an instruction on a lesser included offense if (1) the proof necessary to establish the charged offense also includes the lesser offense and (2) the evidence shows that, if appellant is guilty, he is guilty only of the lesser offense. Cavazos v. State, 382 S.W.3d 377, 382-83 (Tex. Crim. App. 2012). As alleged here and as acknowledged by the State, robbery is a lesser included offense of aggravated robbery, with the difference between the two being the use or exhibition of a deadly weapon. See TEX. PENAL CODE ANN. §§ 29.02, 29.03(a)(2) (West 2011). The indictment alleged appellant "used and exhibited a deadly weapon, to-wit: A METAL SCRAPER," and the charge instructed the jury that, if it found "beyond a reasonable doubt that [appellant] used or exhibit[ed] a deadly weapon, to-wit: a metal scraper," it shall find him guilty of aggravated robbery. As a result, appellant was entitled to a jury instruction on robbery if there was some affirmative evidence from which a rational jury could find that he did not use or exhibit a metal scraper. Cavazos, 382 S.W.3d at 385. Anything more than a scintilla of evidence may be sufficient to entitle a defendant to the lesser included offense instruction. Id. But the evidence must establish the lesser included offense as a '"valid, rational alternative' to the charged offense." Id. (quoting Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007)).
In making our review, we evaluate the evidence in the context of the entire record, but do not consider whether the evidence is controverted, credible, or in conflict with other evidence. Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). Although the evidence may be weak or contradicted, "the evidence must still be directly germane to the lesser-included offense and must rise to a level that a rational jury could find that if [a]ppellant is guilty, he is guilty only of the lesser-included offense." Cavazos, 382 S.W.3d at 385. "Meeting this threshold requires more than mere speculation—it requires affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense." Id.
Appellant argues that he was entitled to a lesser included offense instruction on robbery based on evidence that appellant did not use a metal scraper in the offense. Appellant acknowledges that there was evidence that supports the finding that appellant used or exhibited the metal scraper, including Molina's testimony concerning the store video and where it showed appellant cut her head with a scraper, put the scraper "around [her] neck[,]" and threatened to cut her throat, Detective Loeb's testimony that the metal scraper could leave scars and permanent disfigurement and was capable of causing death or serious bodily injury, and the surveillance videos showing the robbery and the metal scraper. But appellant argues that the following evidence supports his argument: (1) Molina and Loeb's testimony that Molina did not mention a scraper in her statement to police, (2) although she denied that a falling cash register caused the cut on her head, she also admitted that she may not have noticed everything because she did not have on her glasses, (3) when asked what she was holding at one point in the store video, Molina at first testified that she was holding the metal scraper but then stated that it was her cell phone, and (4) "no weapon was discovered at the scene on the night of the robbery, but was found several days later." Appellant also quotes his lawyer's assertions during his closing argument that the State did not show the jury Molina's injury in pictures or in-person during her testimony and that the store surveillance videos did not show appellant pulling a metal scraper out of his pocket, cutting Molina, or "holding the throat." Appellant argues that the jury's question during deliberations—"If he is not guilty of indictment, can he still be fo[u]nd guilty of robbery?"—reflects that the issue of whether the evidence was sufficient to prove "the deadly weapon allegation beyond a reasonable doubt" was "clearly before the jury[.]"
But regardless of whether he established the first step, appellant does not argue that he has established the second step in the test: that the evidence rises "to a level that a rational jury could find that if [a]ppellant is guilty, he is guilty only of the lesser-included offense." Cavazos, 382 S.W.3d at 385. And after reviewing the evidence, we conclude that the evidence appellant relies upon does not constitute "affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense." Id. No witness testified that appellant did not use or exhibit a metal scraper during the robbery. To the contrary, Molina testified that appellant "had this . . . paint . . . scraper" and that she believed "he took it out of his pocket[.]" She testified that appellant cut her on her head and then held the tool to her neck. She also testified as to which portions of the surveillance video showed appellant "pull[ing] the metal scraper from his back pocket[,]" cutting Molina on her head, grabbing her and placing the scraper to her neck, and "threaten[ing] to cut [her] on [her] throat if" she does not "hand him over any cash." She testified that, "instead of cutting" her on her neck, the "tool got caught" on her shirt and she "was able to grab ahold of it." She also testified that she dropped the scraper when the police entered the store and that the scraper appeared in a police photo "where [she] dropped it" and that another photograph was "a close-up view of that metal scraper[.]" Molina also testified that she required five staples on her head "for the cut from the metal scraper."
Molina's testimony and Loeb's testimony that Molina did not mention in her written statement to police that the man cut her with a metal scraper was not affirmative evidence that appellant did not use or exhibit the metal scraper. Rather, she testified on re-direct examination that the statement was not complete and did not "fully explain" what had happened. She also testified that, at the hospital that night, she told Detective Loeb that she "was cut with some type of metal object" but she could not "make out" the name of the "tool." She also testified that she told doctors that she was cut with a metal object. In addition, Loeb testified that Molina told him at the hospital that she thought the suspect had "some sort of knife or metal object in his hand during the attack."
Likewise, the other evidence appellant relies upon—including Molina's testimony that the falling till did not cause the cut on her head, but she might not have noticed everything that occurred because her glasses were knocked off, Molina's statement on cross-examination that an item that she was holding in her hand in the surveillance video was her cell phone and not the scraper, Detective Loeb's recovery of the scraper "several days" after the incident, and the State's failure to show the jury Molina's injuries through photographs or in-person—is not affirmative evidence from which a rational jury could find that appellant did not use or exhibit the metal scraper. To the contrary, Molina testified that it was not possible that she was cut or injured by the falling till because she did not recall it making contact with her when it fell. In addition, Loeb testified that he "went back later" after interviewing Molina at the hospital and looked at the crime scene photos and saw "some sort of bladed object on the floor" and he "collected the knife later"—which was "some sort of drywall scraper or putty knife." He also testified that the metal scraper admitted as a State's exhibit was the same metal scraper that he viewed in the photos and was the same one that he retrieved two days after the crime occurred from a drawer in the store. The admitted exhibits included a photograph showing a metal scraper on the floor in the area behind the store counter where the attack took place, a photo of the scraper, and the scraper itself.
Molina referred to two sections of the cash register: the "top machine where we press the button to open the register" and the "till" that held the money.
Appellant contends that the store surveillance videos did not show appellant pulling a metal scraper out of his pocket or show him cutting Molina or holding the scraper to her throat. But Loeb testified that "[y]ou can just see a scraper in the hand of the suspect." In addition, Molina testified, as the videos were played for the jury, that the videos showed where appellant "pull[ed] the metal scraper from his back pocket[,]" cut her head, grabbed her, and placed the scraper to her neck, and "threaten[ed] to cut [her] on [her] throat if" she does not "hand him over any cash."
In summary, there was no affirmative evidence that he did not use or exhibit a metal scraper. See Cavazos, 382 S.W.3d at 385. And the evidence does not establish the lesser included offense of robbery as a '"valid, rational alternative' to the charged offense." Id. (quoting Hall, 225 S.W.3d at 536). Consequently, we conclude the evidence here does not rise to a level that a rational jury could find that, if appellant is guilty, he is guilty only of the lesser included offense of robbery. See Cavazos, 382 S.W.3d at 385; Penaloza v. State, 349 S.W.3d 709, 713 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) ("To be entitled to an instruction on robbery, the record must contain affirmative evidence that a deadly weapon was not used.").
We overrule appellant's first issue.
COMMENT CONCERNING REASONABLE DOUBT
In his second issue, appellant argues that the trial court fundamentally erred when the court made the following comment to the jury during voir dire: "The State's not required to prove guilt beyond all possible doubt. It's only required that the State prove to exclude all reasonable doubt concerning the Defendant's guilt."
Appellant acknowledges that he did not object to the statements in the trial court and that, in order to present a complaint on appeal, the record must show that a complaint was made to the trial court by timely request, objection, or motion stating the specific grounds for the desired ruling. TEX. R. APP. P. 33.1(a)(1); see Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999) (concluding defendant waived complaint about trial court's explanation of reasonable doubt standard during jury selection by failing to renew objection when trial court repeated explanation); Marshall v. State, 312 S.W.3d 741, 743 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (concluding one must object to trial court's voir dire comments to preserve error).
Appellant argues on appeal that the court's statements constituted fundamental constitutional error and that he can raise the issue for the first time on appeal because "any improper comment on the definition of the term 'beyond a reasonable doubt' violates the Appellant's right to a jury trial" and his "constitutional due process right" to only be convicted if the evidence "show[s] the elements of the crime 'beyond a reasonable doubt.'" See Marin v. State, 851 S.W.2d 275, 278-80 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (recognizing categories of rights to which the requirement of a timely and specific objection does not apply).
The State argues that appellant did not preserve error and that the court's remarks did not constitute fundamental error because they did not "directly comment on Appellant's Fifth Amendment rights or shift the State's burden of proof in any way." We agree with the State.
To support his argument that the trial court fundamentally erred when it made the remarks to the jury, appellant cites Paulson v. State, 28 S.W.3d 570, 571-72 (Tex. Crim. App. 2000), and contends that Texas courts "are not permitted to give the jury a definition of the term 'beyond a reasonable doubt.'" Appellant also quotes the Paulson court's conclusion "that the better practice is to give no definition of reasonable doubt at all to the jury." Id. at 573. In addition, appellant states, jurors must determine their own definition of reasonable doubt using their common sense. See Rogers v. State, 795 S.W.2d 300, 306 (Tex. App.—Houston [1st Dist.] 1990, pet. ref'd). Appellant argues that, although the trial court did not define "beyond a reasonable doubt[,]" it "in effect" gave the venire panel "a definition of the term reasonable doubt" by stating that "it was not proof beyond all doubt." Appellant contends that jurors have the absolute right, using their common sense, "to define beyond a reasonable doubt as beyond all doubt." He argues that, as a result, the court's comments infringed on the "critical due process right" for each juror to weigh the evidence based on that juror's definition of beyond a reasonable doubt.
Appellant quotes Murphy v. State, 112 S.W.3d 592, 597 (Tex. Crim. App. 2003), for the proposition that "each juror must decide for himself what amount of proof would constitute the threshold of beyond a reasonable doubt"—which was a description by the court in Murphy of its holding in Garrett v. State, 851 S.W.2d 853, 859 (Tex. Crim. App. 1993). Murphy and Garrett are distinguishable. In both, the appellant asserted that the trial court erred in granting the State's challenge for cause of venirepersons based on their stated views as to whether they could make certain findings concerning the appellant. See Murphy, 112 S.W.3d at 596-98; Garrett, 851 S.W.2d at 857-61. Our issue here involves the trial court's comments to the voir dire panel.
Appellant relies on four cases to support his argument that the remarks created fundamental error. But the cases are distinguishable or of no precedential value. Fuller v. State, 363 S.W.3d 583, 584-87 (Tex. Crim. App. 2012), did not involve allegedly improper comments by a trial court during jury selection. Instead, in Fuller, the court of criminal appeals held that the trial court erred in denying defense counsel's request to ask prospective jurors whether they understood that proof beyond a reasonable doubt was the highest burden and to contrast beyond a reasonable doubt with preponderance of the evidence and clear and convincing standards. Id. at 587. Blue v. State, 41 S.W.3d 129, 133 (Tex. Crim. App. 2000) (plurality op.), is a plurality opinion with no precedential value. See Unkart v. State, 400 S.W.3d 94, 100 (Tex. Crim. App. 2013) (concluding "the Blue decision has no precedential value"). But even if we followed Blue's plurality opinion, the comments by the trial court during voir dire involved in Blue are distinguishable from the comments involved in this case. In Blue, the trial court stated to the jury that the defendant had seriously considered a plea deal and that the judge would have preferred that the defendant pleaded guilty. 41 S.W.3d at 130, 132. The court concluded that those comments tainted the presumption of innocence and, as a result, created fundamental constitutional error and that an objection was not required to preserve error. Id. at 132. In contrast, the trial court's comments in this case did not "bear on the presumption of innocence or vitiate the impartiality of the jury." Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001).
Appellant discusses the prohibition on a trial court commenting on the weight of the evidence, which—as he concedes—is not determinative of the present issue. --------
Additionally, appellant contrasts this case with Unkart, where the court of criminal appeals concluded that comments by the trial court during voir dire concerning the defendant's right not to testify did not constitute fundamental error. 400 S.W.3d at 96. There, the court concluded the comments were intended to protect the defendant's rights and benefit him. Id. at 101-02. Appellant argues that "the remarks by the trial judge in the present case were not made to protect his due process right of having the beyond a reasonable doubt standard applied, but in effect diminished that right." Appellant does not, however, provide any authority for the proposition that the comments by the trial judge diminished his due process rights to the degree that they constituted fundamental error.
Lastly, appellant also relies on a dissent in Billy v. State, 77 S.W.3d 427, 431-36 (Tex. App.—Dallas 2002, pet. ref'd) (Moseley, J., dissenting). Of course, the dissent has no precedential value. See State v. Doe, 61 S.W.3d 99, 110 (Tex. App.—Dallas 2001) ("It goes without saying, however, that Justice Scalia's dissent has no precedential value."), aff'd, 112 S.W.3d 532 (Tex. Crim. App. 2003). And Billy concerned whether the trial court erred in preventing defense counsel from addressing the jury concerning the meaning of proof beyond a reasonable doubt during closing argument, not whether the trial court erred by making comments concerning the reasonable doubt standard during jury selection. 77 S.W.3d at 429-31.
Additionally, numerous decisions conclude that comments by the trial court similar to those involved here did not constitute fundamental error. See Jasper, 61 S.W.3d at 421 (concluding that, even if court was bound to follow Blue, "[n]one of the trial judge's comments rose to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury"); Haro v. State, 371 S.W.3d 262, 264-66 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (concluding trial court's comments, including comments that reasonable doubt is "what the individual jurors believe[] it to be" and "[i]t's not beyond all possible doubt, and the Charge will tell you that, it's beyond a reasonable doubt[,]" did not constitute fundamental error); Wilkerson v. State, 347 S.W.3d 720, 726 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (citing Jasper, 61 S.W.3d at 421) (concluding trial court's comments, including "reasonable doubt is what's in your mind to be reasonable doubt" and "is the same kind of doubt in making any kind of decision in our lives," did not "bear on the presumption of innocence or vitiate the impartiality of the jury"); Muhammed v. State, 331 S.W.3d 187, 194-95 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (trial court's comments concerning reasonable doubt, including that "[i]t's not 100 percent" and "the law does not require that you be convinced 100 percent[,]" did not constitute fundamental error); Marshall, 312 S.W.3d at 742-45 (concluding trial court's comments concerning reasonable doubt, including that "the Legislature figures everybody is reasonable and they would know a reasonable doubt when they see it[,]" were not fundamental error).
We conclude that the trial court's comments did not rise to the level of fundamental constitutional error and, as a result, appellant waived further complaint about those comments by not objecting to them in the trial court. See TEX. R. APP. P. 33.1(a)(1); Fuentes, 991 S.W.2d at 273; Marshall, 312 S.W.3d at 743-45. We overrule appellant's second issue.
CONCLUSION
We affirm the trial court's judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not Publish
Tex. R. App. P. 47.2(b) 141375F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-1361758-I.
Opinion delivered by Justice Lang-Miers, Justices Bridges and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 31st day of March, 2016.