No. 05-10-00499-CR
Opinion issued November 8, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause No. F08-41747-J.
Before Justices MORRIS, O'NEILL, and FILLMORE.
Opinion By Justice MORRIS.
A jury convicted Jamon Lenard Turner of aggravated robbery. On appeal, he presents three issues claiming reversible error because the evidence against him is legally insufficient, the trial court erred in failing to redact certain records, and two different jurors served as foreperson during the guilt-innocence and punishment phases of trial. Concluding appellant's issues are without merit, we affirm the trial court's judgment.
Factual Background
On the day of the offense, the complainant Sena Ayatey planned to buy a used car with cash. He hid $1,000 under the passenger seat of his parents' van and $900 under the driver's seat. Before the sale was to take place, Ayatey spent some time with his friend Devaun Baker. Baker, who had seen the $1,000 cash Ayatey was hiding under the van's passenger seat, told Ayatey that he knew of a man who would sell him twenty-two-inch tire rims for $600. Ayatey decided to buy the rims, and he and Baker went in the van to the location of the sale. Baker appeared to be in contact with the seller as they waited in the parking lot of an apartment complex. While they were waiting, Ayatey noticed appellant; he had seen appellant spending time with Baker's twin in the past, but Baker was not aware that Ayatey knew appellant. Ayatey could see that appellant had a gun tucked into his waistband. Baker made a phone call and then told Ayatey they needed to go across the street to a car wash to meet the seller of the rims. While they were waiting at the car wash for the supposed seller, appellant approached the van with the gun. He pointed the gun at Ayatey's side and told him to give him his cell phone and his money. Ayatey denied that he had any money, so appellant grabbed his cell phone. Appellant then walked to the other side of the van, patted down Baker, then looked in the van's glove compartment and under the passenger seat. He fled after he found the $1,000 cash under the seat. Ayatey grabbed a .40 caliber pistol he kept hidden under the driver's seat of the van and chased appellant into the apartment complex. He fired his gun into the air two times, hoping appellant would stop. When Ayatey was unable to locate appellant, he returned to the van and Baker. The two were approached by police officers, who had been called to the scene because of the shooting. Officers reporting to the scene found appellant in an apartment. They also found Ayatey's cell phone in the room. But they did not find a gun or the money that had been taken from Ayatey. Appellant gave police a written statement claiming he had stolen the money but found Ayatey's cell phone on the ground after he had fled from Ayatey. He did not admit in the statement that he possessed a gun during the offense. Text messages retrieved from the cell phones of appellant and Baker indicated that the two had planned the robbery based on Baker's knowledge that Ayatey possessed what Baker believed to be $2,500 cash in his car. In the text messages, Baker and appellant agreed to the location, method, and division of the robbery proceeds. In relevant part, the two exchanged the following messages: [Baker:] U got heat
[Baker:] Did u send da pic
[Appellant:] Yea I sum
[Appellant:] Yea I sent it
Other messages retrieved from appellant's phone showed that he was "on the run" once he was aware police wanted to arrest him for the offense. Discussion
In his first issue, appellant challenges the legal sufficiency of the evidence showing he used or exhibited a deadly weapon during the offense. He argues that the only evidence showing he had a gun came from Ayatey, the gun was never recovered, he never admitted to having a gun in his written statement, and the text messages exchanged between Baker and him show he did not plan to use a gun during the robbery. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Here, despite appellant's claims to the contrary, Ayatey maintained that appellant had used a gun during the robbery. Moreover, when applying common knowledge that sometimes the sender of a text message sends a second message before the recipient of the messages is able to respond to the first, the text message conversation between appellant and Baker may be read to demonstrate that appellant had planned to be armed with a gun, or "heat," during the robbery. Deferring to the jury's credibility determinations, we conclude the evidence is legally sufficient to support appellant's conviction. We resolve his first issue against him. In his second issue, appellant complains about several sexually explicit text messages retrieved from appellant's phone that were admitted in the block of text messages offered by the State to show appellant was on the run from police following the offense. He complains the messages were not relevant to any issue in the case and should have been redacted from the admissible text messages. The State responds that appellant did not raise this objection at the time the messages were offered into evidence. The record before us supports the State's position. When the parties initially discussed the sexually explicit messages out of the presence of the jury, defense counsel stated that the messages were irrelevant and also inadmissible hearsay. The prosecutor stated that she would be willing to redact the messages that did not talk about being "on the run" but asserted that many of the sexual messages indicated appellant was on the run because he had committed an offense. At that time, the trial judge stated that she intended to admit the text messages into evidence when they were offered and agreed to note appellant's objection. Later in the trial, however, when the entirety of the text messages were offered into evidence out of the presence of the jury, defense counsel objected only that the proper predicate had not been laid for their admission and that they were hearsay. The trial court overruled appellant's objections and admitted the text messages into evidence out of the presence of the jury. The next morning, the State re-offered the messages in the presence of the jury. Appellant stated only that he objected to their admission and requested a general running objection. The trial court overruled appellant's objection, admitted the evidence, and granted appellant's running objection. Appellant never requested that the sexually explicit text messages be redacted from the rest of the text messages. To preserve any alleged error for appeal, a defendant must make a specific and timely objection and get a ruling on his objection. In addition, with two exceptions, Texas law requires a party to continue to object each time inadmissible evidence is offered. The two exceptions require the defendant either to (1) obtain a running objection, or (2) request a hearing outside the presence of the jury. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). Here, appellant failed to continue to object specifically that the sexually explicit messages were irrelevant. In addition, he never requested a running objection on that basis or asked that they be redacted from the rest of the admissible text messages. Accordingly, he has failed to preserve his complaint for appeal. See Tex. R. App. P. 33.1(a)(1)(A). We resolve his second issue against him. In his third issue, appellant complains reversible error occurred when the foreperson who served during the punishment phase of his trial was not the same foreperson who served during the guilt-innocence phase. Appellant did not object when the trial judge noted that the jury had changed forepersons, nor did he object when the trial court accepted the verdict. He now contends the change in forepersons violated article 36.26 of the Texas Code of Criminal Procedure, which provides that each jury "shall appoint one of its members foreman." Tex. Code Crim. Proc. Ann. art. 36.26 (West 2006) (emphasis added). Appellant acknowledges the holding by the court of criminal appeals in Elizaldi v. State, 519 S.W.2d 881 (Tex. Crim. App. 1975), that a jury could "certainly" choose another member if the original foreperson resigned or refused to serve. 519 S.W.2d at 883. He argues, however, that Elizaldi may be distinguished from his case because it is unclear in that opinion whether the change in foreperson occurred during guilt-innocence deliberations rather than during the punishment phase of trial. He asserts that a change in the foreperson during the guilt-innocence phase "would have resulted in only one foreperson presiding over both deliberations," rather than a separate foreperson for each phase as he had in his case. Obviously, before the jury in Elizaldi sent out its note, it had a foreperson who had served up to that point. The jury making the change permitted by the trial court in that case resulted in a total of two separate forepersons presiding over the jury, regardless of whether the switch was made in the middle of one of the phases of trial or between them. Nothing in article 36.26 prohibits a jury from changing from one foreperson to another. The jurors in appellant's case were instructed — without objection — by the trial judge before their deliberations on punishment that their "first order of business will be to choose a foreperson. Once you choose a foreperson, you-all will deliberate. . . ." They did just that. Based on the holding in Elizaldi, we conclude that no reversible error occurred when the jury switched forepersons for the punishment phase of trial. We resolve appellant's third issue against him. We affirm the trial court's judgment.