Opinion
No. 01-04-00123-CR
Opinion Issued March 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 962049.
Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
MEMORANDUM OPINION
A jury indicted appellant, Joseph Anthony Sampson, guilty of aggravated robbery. After having found true an enhancement paragraph alleging a prior felony,
the trial court assessed punishment at twenty years' confinement. In this appeal, Sampson contends that the trial court erred in (1) denying his motion for a directed verdict, and (2) admitting witness testimony of extraneous acts. We affirm.
Background
Marvin Jacob Lamond stored his two-and-a-half-ton flatbed pickup truck at the Rigginses' family home, located at 1407 Paul Quinn Street in Houston, Texas. Sampson desired to rent Lamond's truck, but after a disagreement, they cancelled the proposed deal. Sampson testified that he owned the tires on Lamond's truck, and that, on February 8, 2003, he towed the truck to another location. A neighbor, Michael Davis, saw Sampson, accompanied by two men, towing the truck from the Rigginses' driveway. Davis immediately called his cousin, Annette Riggins, to alert her of the towing. Annette stated that no one had the authority to tow the vehicle, and then called the Houston Police Department and Lamond. Pursuant to Lamond's request, Larry Davis, Michael's brother, got into his vehicle, drove around the neighboring streets, and found Lamond's truck parked in a nearby yard. Larry returned to Annette's home and told the police officers that he had located the truck. The police officer then went with Larry and Michael to retrieve Lamond's truck. Larry and Michael towed Lamond's truck back to the Rigginses' home. They pushed the truck into the back yard, closed the gate to the yard, wrapped a chain around the gate, and secured the chain with a padlock. Elijah Riggins, Annette's brother, testified that he received a phone call on the morning of February 9 alerting him that the gate to his family's backyard had been damaged. He went to his family's house on Paul Quinn Street and saw the badly damaged gate. It appeared that someone had backed a vehicle into the gate, trying to break the lock. Elijah waited for Annette to return home, and called the police. The police officer stated that there was little to be done, prepared a report, and left the Rigginses' property. Elijah got into his pickup truck, backed out of the driveway, and noticed Sampson driving down Paul Quinn Street. Elijah tried to stop the police officer to let him know that Sampson could be responsible for the gate damage, but he was unsuccessful because Sampson blocked the road with his pickup truck. Elijah pulled his vehicle over to the side of the street. Sampson then jumped out of his pickup truck, ran up to Elijah's vehicle, and began making threatening remarks. Sampson told Elijah that, if he failed to pay him $1700, he would kill him and his mother. Elijah put his pickup truck in reverse, went around Sampson's vehicle and began driving toward his home. Elijah saw Sampson pass him, but later lost sight of him. Meanwhile, Annette noticed her brother and Sampson stopped on Paul Quinn Street. Annette got into her vehicle and drove toward them. She testified that, when she arrived, they were leaving, but she decided to follow her brother to make sure her brother was "all right and Mr. Sampson didn't jump out and attack him again." Although she lost sight of her brother, she was able to follow Sampson. She testified that she saw Sampson pull into a driveway, get out of his pickup truck, and enter a small building. Elijah then noticed his sister, Annette, traveling behind him. They both stopped their vehicles, and he told her about his recent interaction with Sampson. Annette informed Elijah that she saw Sampson stop and enter a building and that he might have a gun. Elijah and Annette decided to go to the police station. As Elijah drove to the police station, he noticed Sampson coming out beside a building with a gun in his hand. Sampson began firing shots at Elijah's vehicle. The third shot hit and went through Elijah's truck, striking him in the leg. Annette also testified that she saw Sampson firing his gun toward her brother's truck and another family member's vehicle, then fire his gun toward her vehicle. Annette returned to the family home to find Elijah and take him to the hospital. During trial, Sampson testified that he towed the truck from the Rigginses' driveway in an effort to retrieve his tires. He further admitted that he damaged the Rigginses' fence and gate on February 8, the day he towed the truck. Finally, he stated that he shot at Elijah's truck only after the Riggins family members began shooting at him.Discussion
Directed Verdict In his first issue, Sampson contends that the trial court erred in denying his motion for a directed verdict. Specifically, he claims that the State did not prove that the offense occurred in Harris County, Texas, as alleged in the indictment. The State responds that the evidence presented at trial supports the jury's finding that the offense occurred in Harris County. We treat a challenge to the trial court's denial of a motion for instructed verdict as a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder 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). In a legal sufficiency review, we may not substitute our own judgment for that of the fact finder. Id. Sampson maintains that the State failed to prove, beyond a reasonable doubt, that venue was proper in Harris County. He cites Seiffert v. State to support his position. 501 S.W.2d 124, 126-27 (Tex.Crim.App. 1973) (holding State must prove allegations in indictment beyond reasonable doubt). First, we note that venue must be proven only by a preponderance of evidence. Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 1977). Next, we must presume that venue was proved at trial unless it was disputed in the trial court or the record affirmatively shows otherwise. TEX. R. APP. P. 44.2 (c)(1). Here, Sampson filed a motion for directed verdict claiming that the State did not prove venue. Neither the State nor Sampson, however, presented any evidence that venue in Harris County is inappropriate. Sampson also neglects to acknowledge the following testimony of Officer John Kuchta, of the Houston Police Department:State: Now, I want to draw your attention back to February 9, 2003. Do you recall being dispatched to a home off of Paul Quinn?
Kuchta: Yes, I do.
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State: At some point, let me ask you this: The address, 1407 Paul Quinn, is that located in Harris County, Texas?
Kuchta: Yes, it is.
State: Are you familiar with the area 6722 Arabella in West Montgomery?
Kuchta: Yes, I am.
State: Is that also located in Harris County, Texas?
Kuchta: Yes, it is.Sampson further testified that he fired shots at Elijah near the intersection of West Montgomery and Arabella. Houston Police Officer Chandler testified that, around 5:30 p.m. on February 9, 2003, he picked up Sampson on the corner of West Montgomery and Arabella, after he saw him waiving his arms, as if to get his attention. We hold that this evidence is sufficient to prove venue in the county of prosecution. See Creekmore v. State, 860 S.W.2d 880, 890 (Tex.App.-San Antonio 1993, pet. ref'd). We therefore conclude that the trial court did not err in denying Sampson's motion for a directed verdict. Inadmissible evidence In his second issue, Sampson asserts that the trial court erred in admitting the testimony of Patricia Hall. Hall testified that, on the morning of the shooting, Sampson stopped by her home and warned her that three people in her family were going to die. Hall further testified that Sampson explained to her that he was angry because Annette called the police after he attempted to remove his tires from Lamond's truck. Sampson's trial counsel objected to the testimony as "extraneous" and on relevancy grounds. The State then argued to the trial judge that the statements are admissible under Rule 404(b) because they demonstrate his intent and state of mind on the morning of the shooting. Tex. R. Evid. 404(b). The trial court overruled Sampson's objections and allowed Hall to testify before the jury. On appeal, Sampson contends that the statements he made to Hall cannot be classified as "other crimes, wrongs or acts" under Rule 404(b). TEX. R. EVID. 404(b). In essence, Sampson maintains that his statements to Hall are not extraneous offenses, and, consequently, that Hall's testimony concerning Sampson's statements are not admissible under any rule 404(b) exception. TEX. R. EVID. 404(b). We review the trial court's determination of admissibility under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1990); Roberts v. State, 29 S.W.3d 596, 600 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). As a general rule, to prevent an accused from being prosecuted for some collateral crime or misconduct, the State may not introduce evidence of bad acts similar to the offense charged, even if relevant. Rule 404(b) provides that evidence of "other crimes, wrongs or acts" is not admissible to prove a defendant's character in order to show action in conformity therewith. TEX. R. EVID. 404(b). However, such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. TEX.R. EVID. 404(b). "To constitute an extraneous offense, the evidence must show a crime or bad act, and that the defendant was connected to it." Lockhart v. State, 847 S.W.2d 568, 573 (Tex.Crim.App. 1992). The evidence must include some sort of extraneous conduct on behalf of the defendant which forms part of the alleged extraneous offense. Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App. 1993); Harris v. State, 738 S.W.2d 207, 224 (Tex.Crim.App. 1986) (op. on reh'g). If no conduct is involved in combination with thoughts, statements concerning a defendant's thoughts of wrongdoing are merely inchoate thoughts. Moreno, 858 S.W.2d at 463 (rejecting defendant's claim that admission of statement in which he expressed plans to commit murder and kidnapping implicated Rule 404(b), because such plans were mere thoughts not connected with any conduct and thus not extraneous offenses). Here, neither party disputes the fact that Sampson did not combine his statements with conduct. Absent any actual conduct involved which alone or in combination with such thoughts could constitute a bad act, wrong, or crime, a defendant's comments about a desire or intent to commit an offense do not constitute prior misconduct and therefore do not implicate Rule 404(b). TEX. R. EVID. 404(b); see Moreno, 858 S.W.2d at 463. Sampson's thoughts thus are not inadmissible under Rule 404(b). See Massey v. State, 933 S.W.2d 141, 153-54 (Tex.Crim.App. 1996) (holding testimony pertaining to thoughts, not conduct, did not implicate Rule 404(b)); see also Moreno, 858 S.W.2d at 463. Accordingly, the trial court did not err in admitting Hall's testimony.