Wilson v. State

Full title: BURNICE WILSON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Dec 3, 2003

No. 05-02-01233-CR (Tex. App. Dec. 3, 2003)

Opinion

No. 05-02-01233-CR

Opinion issued December 3, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-00557-UN.

Before Justices JAMES, FITZGERALD, and LANG-MIERS.

OPINION

Opinion by Justice JAMES.

Burnice Wilson appeals his conviction for robbery, with the punishment enhanced by two prior convictions. The jury found appellant guilty, found both enhancement allegations true, and assessed appellant's punishment at ninety-nine years' imprisonment. Appellant brings four issues asserting: (1) the evidence is factually insufficient to show he caused the complainant bodily injury, (2) the trial court erred in admitting a videotape of the police's pursuit of appellant, (3) the prosecutor committed misconduct, and (4) the evidence is insufficient to support the jury's finding of true to both enhancement allegations. We reverse the trial court's judgment only on the basis of an error or errors made in the punishment stage of the trial, and we remand the cause for further proceedings pursuant to article 44.29(b) of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).

FACTUAL BACKGROUND

On November 7, 2001, Leearthy Levells, a truck driver for DeFord's Lumber, parked his tractor-trailer rig, loaded with lumber and a forklift, at a restaurant for lunch. Levells left the engine running and locked the door of the truck cab. While Levells was in the restaurant, appellant broke the passenger-side window of the truck cab, climbed into the cab, and began to drive away with the truck and trailer. Levells looked out the restaurant window and saw his truck being driven away. Levells ran out of the restaurant and jumped on the catwalk behind the cab. Levells waved at a police car, which started following them. Levells hung on to the side of the cab and fought with appellant through the driver's side window. Appellant opened the door and shoved Levells with his hand and the truck door, pinning Levells against the side of the truck and causing him pain. Levells got back on the catwalk behind the cab, and appellant drove erratically, swerving, braking, and accelerating, to throw Levells off the truck. As the truck slowed down in traffic at an intersection, Levells disconnected the brake lines to the trailer and jumped clear of the truck. With the brake lines disconnected, the trailer's brakes would lock, preventing the truck from going fast. Police officers saw Levells and appellant struggling for control of the truck, and the officers drove behind the truck and called for backup. When Levells jumped off the truck, he ran to the squad car, got in the car, and explained to the officers what had happened. The officers continued to pursue appellant with lights and sirens, but appellant did not stop. The officers were joined by many other officers, the SWAT team, and police helicopters as they pursued appellant for about one and a half hours. During the police chase, appellant drove through red lights at intersections, repeatedly drove down the wrong side of major streets, drove through yards, drove down the median, forced traffic off the road, and tried to ram at least one police car. The brakes on the right rear side of the trailer caught fire, setting the right rear trailer tires on fire as well as setting some of the lumber, the bed of the trailer, and the forklift on fire. The police tried to get appellant to stop, shooting the truck tires and firing tear gas and bullets at the truck cab, but appellant would not stop in response to these actions. To prevent traffic accidents, the police blocked off intersections of several major streets, closed exit ramps from highways, and stopped traffic on an interstate highway. Eventually, appellant stopped and got out of the truck, and he was quickly apprehended by the police.

FACTUAL SUFFICIENCY

In his first issue, appellant asserts the evidence is factually insufficient to show appellant caused bodily injury to Levells as alleged in the indictment. In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Appellant argues the evidence is factually insufficient to show appellant caused Levells bodily injury by shoving him with his hand and the truck door because only Levell testified to these facts and two witnesses testified they did not see appellant shove Levells. One witness outside the restaurant testified he did not see appellant and Levells fighting, and another witness who followed the truck for about ten minutes also testified he did not see appellant and Levells fighting. However, the two police officers following the truck testified they saw appellant push Levells against the side of the truck and open the door into Levells. Thus, appellant's testimony is consistent with the testimony of these police officers. After reviewing all the evidence in a neutral light, we conclude the evidence is not factually insufficient to show appellant caused Levells bodily injury by pushing Levells against the truck with his hands as alleged in the indictment. We resolve appellant's first issue against him.

VIDEOTAPE OF POLICE CHASE

In his second issue, appellant asserts the trial court erred in admitting a silent videotape of the police chase of appellant after Levells had jumped off the truck. Appellant argues the videotape was irrelevant and unduly prejudicial. Appellant did not object at trial that the videotape was inadmissible due to it being unduly prejudicial. Accordingly, this issue is not preserved for appellate review. Tex.R.App.P. 33.1; Castillo v. State, 79 S.W.3d 817, 826 (Tex. App.-Dallas 2002, pet. ref'd), cert. denied, 123 S.Ct. 1593 (2003). We review the trial court's admission of evidence under the abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). We do not reverse the trial court's ruling unless it falls outside the zone of reasonable disagreement. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim. App. 2003). To prove robbery, the State had to prove appellant was in the course of committing theft of the truck and intended to obtain and maintain control of the truck. Tex. Pen. Code Ann. § 29.02(a) (Vernon 2003). To prove theft, the State had to establish appellant intended to deprive Levells of the truck. Id. § 31.03(a) (Vernon Supp. 2004). The State asserts the videotape of the police chasing appellant as he drove the truck is relevant to these elements. Appellant argues the videotape is irrelevant because it begins after Levells had jumped off the truck, which appellant argues marked the end of the robbery offense. The silent videotape shows approximately fifty minutes of the police chase culminating in appellant's apprehension as filmed from a television station's helicopter. The tape shows appellant driving erratically, driving through yards, driving on the center median, driving on the wrong side of the road at least ten times, violating many other traffic laws, and at least once attempting to ram a police car. Evidence is relevant if it has any tendency to make a fact of consequence more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. The videotape shows the lengths to which appellant went to escape the police with the truck, thus tending to make it more probable that he intended to maintain control of the truck and to deprive Levells of the truck. Furthermore, evidence of a defendant's flight and the extraneous offenses committed during flight are circumstantial evidence of the defendant's guilt. Rabb v. State, 835 S.W.2d 270, 273 (Tex. App.-Tyler 1992, no pet.). Accordingly, we conclude the videotape showing appellant's flight from the police is relevant. We resolve appellant's second issue against him.

PROSECUTORIAL MISCONDUCT

In his third issue, appellant asserts the prosecutor committed misconduct requiring reversal of appellant's conviction. Prosecutorial misconduct occurs when the prosecutor makes a statement clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced by the statement. Huffman v. State, 746 S.W.2d 212, 218 (Tex.Crim.App. 1988). Prosecutorial misconduct can also occur when the prosecutor's action deliberately violates an express court order and the misconduct is so blatant as to border on being contumacious. Stahl v. State, 749 S.W.2d 826, 831 (Tex.Crim.App. 1988). During defense counsel's cross-examination of officer Leslie Reese, defense counsel asked Reese to refresh his memory from the police offense report:

Q. All right. Okay. Is that the police offense report that you prepared?

A. Yeah.

Q. Okay. I want you to review that to yourself. Just look through it, please. Kind of refresh your memory, if you would.

[Prosecutor]: Your Honor, if defense wants to offer that into evidence, we've got no objection.

The Court: You have no objection?

[Defense Counsel]: Well, I haven't offered it yet, Your Honor. I don't think it's appropriate for me to offer it at this point in time, quite honestly.

I can understand the State wanting to do certain things, but we object to the State attempting to play defense counsel.

The Court: Sustained.

* * *

Q. Well, okay. Once again, let me show you what's Defense Exhibit No. 6.

[Prosecutor]: Your Honor, once again, if defense counsel would like to admit it into evidence, I have no objection.

[Defense Counsel]: Well, we very graciously appreciate the State making that offer, Judge, but the Rules of Evidence at this point in time don't allow me to offer it.

[Prosecutor]: That would be a misstatement of the law, and I'd object to that, your Honor.

The Court: This is a tempest in a teapot. Let the defense offer its own evidence, and then you can make your objection or make no objection.

To preserve error, appellant had to object and obtain an adverse ruling. Dooley v. State, 65 S.W.3d 840, 842 (Tex. App.-Dallas 2002, pet. ref'd). Although appellant objected to the prosecutor's statement in the first instance, the trial court sustained his objection, and appellant did not request any further relief. Accordingly, no error, if any, was preserved. Appellant did not object to the prosecutor's second statement and, thus, did not preserve any error for appellate review. Tex.R.App.P. 33.1. Furthermore, appellant did not object on the ground of prosecutorial misconduct; thus, his objection is waived because it does not comport with his argument on appeal. Montoya v. State, 43 S.W.3d 568, 572 (Tex. App.-Waco 2001, no pet.). We resolve appellant's third issue against him.

PUNISHMENT ENHANCEMENT

In his fourth issue, appellant asserts the evidence is legally insufficient to support the jury's verdict on the enhancement allegations. The State alleged punishment enhancement pursuant to section 12.42(d) of the penal code, which would enhance appellant's punishment from a minimum term of twenty-five years to a maximum term of ninety-nine years or life. The jury found appellant was convicted on June 10, 1987 in Oklahoma of felony possession of a controlled substance and convicted in Missouri on May 15, 1980 of felony manslaughter, that the 1980 conviction was a final conviction before appellant committed the offense leading to the 1987 conviction, and that the 1987 conviction was a final conviction when appellant committed the charged offense. However, the evidence of the 1980 and 1987 convictions does not show the dates on which appellant committed these offenses. Without evidence of the date on which appellant committed the offense leading to the 1987 conviction, the State cannot prove beyond a reasonable doubt that the 1980 conviction was final when appellant committed that offense. See Moore v. State, 802 S.W.2d 367, 372-74 (Tex. App.-Dallas 1990, pet. ref'd); Patterson v. State, 723 S.W.2d 308, 316 (Tex. App.-Austin 1987), aff'd, 769 S.W.2d 938 (Tex.Crim.App. 1989). Accordingly, we conclude the evidence was insufficient to support the jury's finding appellant committed the Oklahoma offense after the Missouri offense became final. The jury's erroneous finding of true to the Oklahoma offense enhancement paragraph resulted in the jury's consideration of the wrong range of punishment. Robbery is a second degree felony. Tex. Pen. Code Ann. § 29.02(b) (Vernon 2003). Because the jury found both enhancement paragraphs true, the range of punishment it considered was twenty-five to ninety-nine years or life imprisonment. Id. § 12.42(d) (Vernon Supp. 2004). Had the jury found only one enhancement paragraph true, the punishment range it would have considered is that for a first degree felony, five to ninety-nine years or life imprisonment and a fine of up to $10,000. Id. §§ 12.32, 12.42(b) (Vernon 2003 Supp. 2004). Thus, the error affected the minimum penalty but not the maximum. This error implicates appellant's statutory right to be have the jury consider the correct punishment range but does not implicate appellant's constitutional rights; accordingly, we must disregard the error unless it affected appellant's substantial rights. Tex.R.App.P. 44.2(b); Sims v. State, 84 S.W.3d 768, 780 (Tex. App.-Dallas 2002, pet. ref'd); Fite v. State, 60 S.W.3d 314, 319 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). In King v. State, the court of criminal appeals defined" substantial rights" as being affected "when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim. App. 1997). In determining whether the error was harmful under rule 44.2(b), we examine the entire record. See Fowler v. State, 958 S.W.2d 853, 865 (Tex. App.-Waco 1997), aff'd, 991 S.W.2d 258 (Tex.Crim.App. 1999). During the punishment phase, the State presented evidence appellant had been previously convicted of: burglary and receiving stolen property in Oklahoma in 1978 and sentenced to four years in each case; manslaughter in 1980 in Missouri and sentenced to seven years; possession of a controlled substance with intent to distribute and bail jumping in 1987 in Oklahoma and sentenced to twenty years in each case; and impersonating an officer and failing to return rental property in 1992 in Oklahoma and sentenced to 360 days and ten years respectively. Besides the seven prior felony convictions, the State also presented evidence that on May 31, 2001, appellant stole a flat-bed wrecker and used it to steal a Suburban. After running a red light in front of a police officer, appellant pulled into a parking lot and unloaded the Suburban as the police officer pulled into the parking lot. Appellant explained to the officer he was repossessing the Suburban. The officer allowed appellant to return to the wrecker to get his papers out of the wrecker, but appellant jumped into the wrecker and drove away. The officer pursued appellant into an industrial area where he slowed down and jumped out of the wrecker while it was still moving. Appellant got up and tried to run away, but the officer boxed in appellant with his vehicle and arrested appellant as he tried to hide under a car. The State also presented evidence that on November 1, 2001, a truck driver for Sysco Foods¹ parked his tractor-trailer rig in front of a building, turned off the engine, and left the key in the ignition. The driver took a delivery into the building, and when he returned ten minutes later, the tractor-trailer rig was gone. The tractor and trailer were later found abandoned, and appellant's fingerprint was on the steering wheel. Howard Clarkson testified for appellant that in the summer of 2001, appellant worked as a wrecker driver. Clarkson stated he was not with appellant when appellant was arrested on May 31, 2001, and he did not know anything about appellant's criminal background. Doan Johnson testified appellant worked as a truck driver for his company for two weeks in June 1999 and that appellant was a good truck driver, was good with the customers, and kept his paperwork organized and up to date. Johnson offered appellant a permanent job, which appellant refused because he did not want to drive flat-beds. Johnson testified he was unaware of appellant's criminal background but thought appellant was a good person. Johnson saw some of the television footage of the November 7, 2001 police chase, and he "was shocked" and considered appellant's behavior" totally out of character." Delilah English testified she was appellant's neighbor and a friend of appellant's wife. English stated appellant was a kind person and that he was good with computers but could not get a job working with computers because of his criminal history. Eugene Gaddis testified he had known appellant since appellant was fourteen years old. Appellant worked for Gaddis when he lived in Oklahoma, and appellant was dependable and a hard worker. In Gaddis's opinion, appellant was "a fine young man," but Gaddis testified he was unaware of appellant's criminal background. During jury argument at the punishment phase, the State argued that appellant's past criminal history, including appellant's stealing a wrecker and a tractor-trailer shortly before committing the charged offense, as well as appellant's endangering the lives of hundreds of people during the police chase in this case, was "crying out for a life sentence." The defense argued appellant's friends thought appellant a good enough person to travel to Dallas and testify on his behalf, even though some of them had not seen appellant in years. Regarding the unadjudicated offenses, the defense argued the State did not show appellant stole the Sysco Foods truck but only that he had been in the truck cab. The defense also argued Gaddis's testimony showed appellant was working as a wrecker driver in a wrecker that was not stolen in the summer of 1991. Concerning the charged offense, the defense argued appellant did not hit any other vehicles with the truck or try to drive over any police cars with the truck during the police chase. The defense asked the jurors to determine punishment fairly and without emotion. Thirty-seven minutes into deliberation, the jury sent the court a note requesting clarification of the difference between a sentence of life and a sentence of ninety-nine years. The trial court told the jury, "We are unable to answer that question. You have all of the law and evidence to decide the case. Please continue your deliberations." A little over an hour later, the jury returned its verdict of ninety-nine years. The State argues the error is harmless because it affected only the minimum punishment, did not affect the maximum punishment, and the jury assessed the maximum punishment of ninety-nine years' imprisonment. However, the State cites no case where error affecting the minimum punishment has been held to be harmless, and we found no such case. Several cases have found error affecting the minimum punishment to be harmful. See Fullbright v. State, 818 S.W.2d 808, 810-11 (Tex.Crim.App. 1991); Throneberry v. State, 109 S.W.3d 52, 60 (Tex. App.-Fort Worth 2003, no pet.); Sims, 84 S.W.3d at 781; Fite, 60 S.W.3d at 320. In this case, there was a significant disparity of twenty years between the correct minimum punishment of five years and the minimum punishment of twenty-five years considered by the jury under the charge. When setting punishment within such a broad range, we consider it imperative that the jury consider the correct range of punishment. After reviewing the entire record, we conclude the error had a "substantial and injurious effect or influence" on the jury's punishment determination. King, 953 S.W.2d at 271. Accordingly, we resolve appellant's fourth issue in his favor. We reverse the trial court's judgment only on the basis of an error or errors made in the punishment stage of the trial, and we remand the cause for further proceedings pursuant to article 44.29(b) of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).