Opinion
Nos. 05-05-00189-CR, 05-05-00190-CR
Opinion Filed May 25, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-74547-Kn and F03-74548-VN. Affirmed.
Before Justices WRIGHT, MOSELEY, and LANG.
OPINION
Cedrick Jermond Williams appeals his conviction for aggravated assault and aggravated robbery. After a consolidated trial, a jury found appellant guilty of both offenses. Appellant pleaded true to the enhancement paragraphs of the indictments, and the trial court found the enhancement paragraphs true. Punishment was assessed by the trial court at forty-five years' confinement in each case, to run concurrently. Appellant raises four issues on appeal: (1) the evidence is legally insufficient to support his conviction; (2) the evidence is factually insufficient to support his conviction; (3) the trial court erred in denying his motion for mistrial after the prosecutor gave unsworn testimony as part of the closing jury argument; and (4) the trial court erred in overruling his objection to the prosecutor's closing jury argument because that argument contained unsworn testimony that was wholly outside the record. Viewing the evidence under the appropriate standards, we conclude that the evidence is legally and factually sufficient to support appellant's convictions. We also conclude that the trial court did not abuse its discretion in denying appellant's motion for a mistrial. Any harm was cured by the trial court's instruction to disregard made at the time appellant's objection was sustained and the instructions in the jury charges. Finally, the trial court did not err in overruling appellant's objection that a portion of the prosecutor's argument was wholly outside the record, because the challenged argument was a proper summation of and a reasonable deduction from the evidence, and there was no harm shown from this alleged error. For these reasons, we find against appellant on all four issues. The trial court's judgments are affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mayti Cantu testified that after going out to dinner with her family on the evening of December 12, 2003, she accompanied her brother Mark Cantu to his apartment. The time was approximately 10 p.m. As Ms.Cantu stood on a second-floor outdoor landing waiting for her brother to unlock the door to his unit, she heard someone behind her say "dinero." She turned around and saw a man in a dark hooded pullover standing at the bottom of the stairs, pointing a gun at her. The man ordered Mr. Cantu to tell Ms. Cantu to throw down her purse or he would shoot her. Ms. Cantu threw her purse down to the man, who grabbed it and ran toward the apartment parking lot. Meanwhile, Pete Martinez, another brother of Ms. Cantu, was making his way to Mr. Cantu's apartment from the parking lot when he heard Ms. Cantu shout. A man passing near Mr. Martinez then began running, and Mr. Martinez chased after him. Mr. Martinez noted that the man was a black male wearing a dark-colored hooded pullover with white lettering across the front. He also noted that the man had hair on his chin. As the two reached the apartment parking lot, the man pulled a gun from his pocket and pointed it at Mr. Martinez. Mr. Martinez ducked behind a car as the man fired three shots. By this time, Mr. Cantu had also reached the parking lot. He saw the man standing between two cars, firing the gun. Finally, the man ran toward a creek area behind the apartment complex and disappeared from sight. Ms. Cantu testified that her purse, which was never recovered, contained her social security card, two credit cards, some photographs, and five dollars. Dallas Police Officer Tanya Coleman was working off-duty security that evening at a neighboring apartment complex. Officer Coleman knew appellant because he lived at that apartment complex with his mother. Officer Coleman testified that at approximately 9:30 p.m., she saw appellant get into a car with two other men and drive away. She noted that appellant was wearing a dark hooded sweatshirt, and that his hair was short and he had hair on his chin. Shortly thereafter, Officer Coleman heard three gunshots. As she and her security patrol partner drove around the complex trying to determine where the shots were coming from, they saw a Hispanic man running through the apartment complex next door. Other patrol officers later told Officer Coleman about the incident and described the perpetrator as a black male with short hair, wearing a black hooded jacket. She immediately thought of appellant and passed the information on to Dallas Police Detective Richard Duggan. Officer Coleman did not see appellant return home that night. After speaking with Officer Coleman, Detective Duggan placed appellant's photograph into a lineup with five other photos. The photo of appellant that was used for the lineup showed him without facial hair. Both Mr. Cantu and Mr. Martinez positively identified appellant as the assailant from the photo lineup. Ms. Cantu was able to eliminate four of the photographs in the lineup, leaving just appellant's photograph and one other. A warrant was issued for appellant's arrest. He was arrested and indicted for aggravated robbery and aggravated assault. Appellant pleaded not guilty. At trial, Mr. Cantu and Mr. Martinez again identified appellant as the perpetrator of the robbery and assault they had witnessed. Although appellant did not testify in his own defense, he did call several witnesses to testify on his behalf. Vanessa Mims, the girlfriend of one of appellant's acquaintances and a resident of the apartment complex where the incident occurred, testified that she witnessed the robbery and was certain that appellant was not the perpetrator. She admitted, however, that she never contacted authorities to tell them what she had seen, even after she learned from appellant's brother that appellant had been arrested for the crime. Telling her version of the events at trial for the first time, Ms. Mims described the assailant as being tall, "husky," and very dark, with "nappy" hair. Appellant's mother testified that appellant was "in and out of the house" that evening and that he was not wearing a hooded sweatshirt. Finally, appellant's younger brother testified that he was with appellant at their cousin's apartment on the evening of December 12, 2003, and that appellant never left his sight. The jury found appellant guilty of both offenses.II. LEGAL AND FACTUAL SUFFICIENCY
In his first two issues on appeal, appellant argues that the evidence is legally and factually insufficient to support his conviction. Specifically, appellant contends that the record is insufficient to show that he participated in the offenses of aggravated assault and aggravated robbery because of the following: (1) Ms. Cantu was unable to identify appellant as her assailant, even though she provided a number of details as to her assailant's appearance; (2) there were "discrepancies" in Mr. Cantu's testimony regarding at what point he had a clear view of the perpetrator; (3) Mr. Martinez testified that the shooter had facial hair, but he identified a photograph of appellant, who did not have facial hair; (4) Mr. Martinez testified that he saw only part of the shooter's face because a hood covered the area just above the shooter's eyes; (5) Officer Coleman did not see appellant when she went to investigate the gunshots; (6) other possible witnesses were not interviewed by police; and (7) the defense presented testimony that appellant was not the perpetrator. The State responds that the factors asserted by appellant do not render the evidence insufficient, as the jury was the sole judge of the credibility of the witnesses and the strength of the evidence and is presumed to have resolved any conflicts in favor of the State. Further, the State argues, appellant was positively identified by the victim of the aggravated assault and by an eyewitness of the aggravated robbery, and the jury was entitled to credit those identifications and to reject appellant's alibi evidence and defensive theory of misidentification.A. Standards of Review
In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Finally, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998). In reviewing the factual sufficiency of evidence to support a verdict, we review all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt, and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. This analysis is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). In conducting this review, we must not "substantially intrude upon" the fact finder's role as the exclusive judge of the evidence's weight and the testimony's credibility. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Accordingly, we must defer to the jury's decisions on credibility and weight. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). Resolution of conflicts in the evidence and credibility of witnesses lies within the fact finder's exclusive province. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). See also Johnson, 23 S.W.3d at 9.B. Applicable Law
To sustain a conviction, there must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense against him. See Johnson v. State, 673 S.W.2d 190, 196 (Tex.Crim.App. 1984). Under Texas law, a person commits aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury while using or exhibiting a deadly weapon. Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2005). A firearm is a deadly weapon. Id. at § 1.07(a)(17)(A). A person commits aggravated robbery if, in the course of committing theft and with intent to obtain or maintain control of property, he intentionally and knowingly threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. Tex. Pen. Code Ann. §§ 29.03(a)(2), 29.02(a)(2) (Vernon 2003). See also Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2005) (theft). Testimony by a witness that a defendant used a firearm during the commission of an offense is sufficient to support a finding of use and exhibition of a deadly weapon. Gomez v. State, 685 S.W.2d 333, 336 (Tex.Crim.App. 1985).C. Application of Law to Facts
Contending the evidence is legally insufficient, appellant first argues that there is no evidence to support his convictions for aggravated robbery and aggravated assault. He asserts weaknesses and discrepancies in the identification testimony of Ms. Cantu, Mr. Cantu, and Mr. Martinez. Specifically, appellant notes that although Ms. Cantu was unable to make a positive identification of him in the photo lineup or at trial, she gave specific details as to her assailant's appearance, testifying that he wore a dark sweatshirt with no lettering and had short hair that was not slicked back. Appellant also asserts that Mr. Cantu testified at one point that when the assailant told his sister to throw down her purse, his back was to the man, yet Mr. Cantu later said that he got his best look at the assailant when he was demanding the purse. Appellant further notes that Mr. Cantu could not recall if the assailant had facial hair, but was able to identify a photo of appellant, who did not have facial hair. Mr. Cantu also could not recall what type of hairstyle the assailant wore, and stated that the man wore a dark "hoody" that did not have writing on the front. Appellant states that Mr. Martinez described the shooter as having facial hair, yet identified appellant, who was clean shaven, as the assailant. Appellant also notes that Mr. Martinez testified that he only saw part of the shooter's face, because a hood covered the man's face just above his eyes. Appellant further asserts that he presented testimony that he was not the perpetrator. Eyewitness Vanessa Mims stated that she saw someone other than appellant commit the robbery. In addition, appellant's mother testified that appellant was not wearing a hooded sweatshirt on the evening of the crime, and appellant's younger brother testified that he was with appellant in another location at the time in question. After applying the appropriate standard of review, we conclude that there was legally sufficient evidence that appellant committed both offenses charged. In pretrial photographic lineups and again at trial, Mr. Cantu identified appellant as the perpetrator of the aggravated robbery and Mr. Martinez identified him as the perpetrator of the aggravated assault. See Green v. State, 510 S.W.2d 919, 922 (Tex.Crim.App. 1974) (holding that positive identification of appellant was sufficient evidence to connect him with the offense); Fluellen v. State, 104 S.W.3d 152, 160 (Tex.App.-Texarkana 2003, no pet.) (holding that police officer's identification of defendant as the person who sold him cocaine was legally sufficient evidence to support defendant's conviction). Further, although Ms. Cantu did not positively identify appellant as her assailant, she selected his photograph from a lineup as one of two possible suspects. In addition, her description of appellant's appearance on the evening in question was consistent with the descriptions provided by Officer Coleman, Mr. Cantu, and Mr. Martinez. The credibility of the evidence presented by appellant as to his misidentification and his asserted alibi was solely within the jury's province, and the jury was entrusted with resolving any conflicts regarding that evidence. In light of the eyewitness identifications by Mr. Cantu and Mr. Martinez, as well as Officer Coleman's testimony that she saw appellant leave his nearby apartment shortly before the robbery and shooting and did not see him return, a rational jury could have rejected appellant's defensive evidence. Because a rational trier of fact would not be precluded from finding that appellant committed the essential elements of each offense beyond a reasonable doubt, the evidence is legally sufficient to support both of appellant's convictions. We decide against appellant on his first issue. In his second issue, appellant contends that a full review of the testimony without the prism of "in the light most favorable to the prosecution" shows that the jury's verdicts are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. In his argument regarding the factual sufficiency of the evidence, however, appellant does not point to any specific deficiencies or imbalances, but rather "incorporates herein by reference the definitions, arguments, and authorities" from his point of error regarding legal sufficiency. Accordingly, we look again at the considerations raised above. Mr. Cantu testified that the stairwell area was well lit and that he was able to see the assailant's face from the top of the stairs. He identified appellant with certainty in the photo lineup and in court. Mr. Martinez testified that he had been able to get a good look at the shooter in the parking lot and that he was certain appellant was the person who shot at him. Further, as noted above, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. See Jones, 944 S.W.2d at 647; Harvey, 135 S.W.3d at 717. Witnesses presented by appellant included his mother and his younger brother, as well as an acquaintance who said she witnessed the robbery, but failed to come forward with her version of the events until trial. A rational jury could have chosen to doubt the credibility of any or all of appellant's witnesses. Reviewing all of the evidence in a neutral light, we cannot conclude that the proof of appellant's guilt is "so obviously weak" that it undermines our confidence in the jury's verdict, or that the proof of his guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11. Accordingly, we conclude that the evidence was factually sufficient to support appellant's convictions of aggravated assault and aggravated robbery. Appellant's second issue on appeal is decided against him.III. DENIAL OF MOTION FOR MISTRIAL
In his third issue, appellant complains that the trial court erred by denying his motion for mistrial after the prosecutor gave unsworn testimony as part of the jury argument during the guilt-innocence phase of the trial. The challenged argument was made during the rebuttal portion of the State's closing argument, when the prosecutor was discussing the failure of defense witness Vanessa Mims to come forward with her version of events prior to trial:You know what, I know people don't want to get involved in things like this. I understand that she may not have wanted to go out there and talk to the police officers, but you know what, she waits until what she says she's known for two weeks. You know what if she had come to us, am I saying I would have dropped these charges? No, because I wouldn't have believed her story, but what I could have done is(Rep. R. vol. 3, 206-07). Appellant objected, asserting that the prosecutor was "testifying about what she would believe or not believe." The trial court sustained appellant's objection and instructed the jury to disregard the prosecutor's last statement. However, appellant's request for a mistrial was denied. Appellant contends that the State used the remark as a "back handed" method to inform the jury of its opinion about the veracity of the witness, rather than allowing the jury to draw their own conclusions. He maintains that the State's argument was a "manifestly dangerous and improper method" and unfairly prejudiced the jury against the testimony of Ms. Mims. Appellant alleges that he was harmed because he had no avenue to dispute the State's argument with rebuttal testimony of the witness and no fair assurance that the error did not influence the jury's verdict. Appellant further contends that the trial court's instruction to the jury was insufficient to cure the error, and the judgment must therefore be reversed. The State responds that, viewed in context, the challenged remark is within the bounds of permissible jury argument. Moreover, the State argues, curative measures were adopted by the trial court in the form of a prompt instruction to disregard and a statement in each jury charge that the jurors were to be the sole judges of the credibility of the witnesses and the weight to be given their testimony. In light of the strength of the evidence against appellant in the record, the State maintains, the trial court could have reasonably believed that its instruction to disregard was effective and that appellant suffered no prejudice from the prosecutor's remark.
A. Standard of Review
We review a trial court's decision to deny a mistrial under an abuse of discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). In evaluating whether a trial court abused its discretion in denying a mistrial for improper argument, we balance the following factors: (i) the severity of the misconduct (prejudicial effect), (ii) curative measures taken, and (iii) the certainty of the punishment assessed absent the misconduct. Id. See also Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000).B. Applicable Law
The decision to deny a motion for mistrial is within the discretion of the trial court. Edwards v. State, 106 S.W.3d 833, 838 (Tex.App.-Dallas 2003, pet. ref'd) (citing Rousseau v. State, 855 S.W.2d 666, 684 (Tex.Crim.App. 1993)). A mistrial is an extreme remedy for prejudicial events occurring during the trial process. See Hawkins, 135 S.W.3d at 77. Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant may a motion for mistrial be granted. Id. The law provides for, and presumes, a fair trial free from improper argument by the state. Thompson v. State, 89 S.W.3d 843, 850 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). There are four permissible areas of jury argument: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answers to the argument of opposing counsel, and (4) pleas for law enforcement. Id. It is well-settled that a prosecutor may not inject his or her personal opinions or beliefs as to matters of consequence to the case in statements to the jury. See McKay v. State, 707 S.W.2d 23, 37 (Tex.Crim.App. 1985); Johnson v. State, 698 S.W.2d 154, 167 (Tex.Crim.App. 1985). However, a prosecutor may argue an opinion or belief concerning an issue in the case so long as the opinion or belief is based on the evidence admitted at trial and does not constitute unsworn testimony. See McKay, 707 S.W.2d at 37; Johnson, 698 S.W.2d at 167. Jury argument must be analyzed in light of the entire argument made and not just isolated sentences. Caballero v. State, 927 S.W.2d 128, 132 (Tex.App.-El Paso 1996, pet. ref'd) (citing Mosley v. State, 686 S.W.2d 180, 183 (Tex.Crim.App. 1985)).C. Application of Law to Facts
Immediately prior to making the challenged remark, the prosecutor had summarized for the jury, using the evidence presented at trial, reasons to question the credibility of the testimony of Vanessa Mims. The prosecutor pointed out that in Ms. Mims's version of the incident, Ms. Cantu was standing downstairs when she was robbed, and her purse was taken from her rather than tossed to the assailant. The prosecutor further noted that Ms. Mims testified that she stood outside of her apartment with her young daughter and watched the armed robbery unfold before taking her daughter inside. Finally, the prosecutor noted that Ms. Mims chose to wait until trial to come forward with her version of events, rather than contacting the police when she heard that appellant had been arrested in connection with the incident, even though she felt sure that appellant was not the perpetrator. This summary was followed by the prosecutor's statement that, even had Ms. Mims come forward earlier, "I wouldn't have believed her story." The trial court properly sustained appellant's objection to the argument. Although it is permissible for a prosecutor to question the credibility of a witness during jury argument through reasonable deductions from the evidence, the statement of the prosecutor addressed her personal view of Ms. Mims's veracity. That is not permissible. See McKay, 707 S.W.2d at 37; Johnson, 698 S.W.2d at 167. Appellant argues that he was harmed in that he had "no avenue to dispute the statement of the State." However, even though the prosecutor's comment was improper, it was not so inflammatory that any prejudicial effect could not be cured by the trial court's instruction to disregard. See Logan v. State, 698 S.W.2d 680, 682 (Tex.Crim.App. 1985). Such an instruction will in most cases be considered effective to cure the harm from an improper argument. See Hawkins, 135 S.W.3d at 84. Further, in addition to the instruction to disregard given immediately after the challenged argument was made, the trial court also included an instruction in the jury charge as to each alleged offense stating that the jurors were "the exclusive judges of the facts proved, the credibility of the witnesses, and the weight to be given the testimony." These instructions clarified to the jury that they were not required to believe or disbelieve any witnesses presented by either the State or appellant. Although appellant contends that there is "no fair assurance that the error did not influence the jury's verdict," he cites no cases holding that denying a mistrial under circumstances such as those presented here is an abuse of discretion, nor does he point to any supporting evidence in the record for his argument. Moreover, in cases involving direct statements of personal belief as to the credibility of a witness, instructions to disregard have been considered effective to cure any harm. See, e.g., McDonald v. State, 148 S.W.3d 598, 603 (Tex.App.-Houston [14th Dist.] 2004) (holding that a mistrial was not warranted by prosecutor's argument that he thought the testifying victim was "very believable"), aff'd on other grounds, 179 S.W.3d 571 (Tex.Crim.App. 2005); Nauert v. State, 838 S.W.2d 328, 329-30 (Tex.App.-Austin 1992, pet. ref'd) (holding that an instruction to disregard cured harm from prosecutor's suggestion that the jury should believe the witness because the prosecutors and investigators believed her). Finally, we consider whether the challenged argument had any effect on the certainty of appellant's conviction. Appellant was identified as the perpetrator by two eyewitnesses. During trial, the State established that Ms. Mims did not come forward with her account of the incident at issue until after she had learned some of the details of the case from appellant's brother. Accordingly, the jury had sufficient basis to doubt the veracity of Ms. Mims. Based upon our review of the facts and circumstances in this case, the challenged argument did not "inflame the minds of the jury" or affect the verdict. See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). In light of the trial court's instruction to disregard and the entire trial record, we conclude that the trial court did not abuse its discretion in denying appellant's motion for mistrial. We decide against appellant on his third issue.IV. OBJECTION TO TESTIMONY FROM OUTSIDE THE RECORD
In his fourth issue, appellant contends that the trial court erred in overruling his objection to the prosecutor's closing jury argument because that argument contained unsworn testimony that was wholly outside the record. Specifically, appellant asserts that the prosecutor injected facts from outside the record concerning the existence and contents of a probable cause affidavit. The challenged statements were made during the State's rebuttal to appellant's closing argument at the guilt-innocence phase of the trial. The prosecutor suggested that defense witness Vanessa Mims had not actually witnessed the robbery, but had learned about it from appellant's brother, who had been provided a copy of the probable cause affidavit by defense counsel:Strangely enough, two weeks ago she [Ms. Mims] got a, I guess, a phone conversation or an in person conversation with the Defendant's brother who had been provided by the defense attorney a copy of the probable cause affidavit. Not the witnesses, but a summary, a basic outline of what had happened. Hispanic woman robbed, gunpoint, took purse, at apartment, and that's what she testified to.(Rep. R. vol. 3, 208). Appellant objected, complaining that the prosecutor was testifying about what the probable cause affidavit contained, when there was no evidence of the affidavit or its contents in the record. The trial court overruled appellant's objection, noting that the prosecutor was allowed to make deductions from the evidence. Appellant argues that because there was nothing in the evidence concerning a probable cause affidavit or evidence of its contents for the jury to consider, his right to a fair trial was denied when the court overruled his objection. He further maintains that the prosecutor's misconduct was flagrant and can be cured only by granting a new trial. The State responds that the challenged argument was a proper summation of and a reasonable deduction from the evidence. Moreover, the State maintains, even if the argument was improper, it did not have a substantial and injurious effect or influence in determining the jury's verdicts.