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Herrera v. State

Court of Appeals of Texas, Tenth District, Waco
Feb 7, 2007
No. 10-06-00181-CR (Tex. App. Feb. 7, 2007)

Opinion

No. 10-06-00181-CR

February 7, 2007. DO NOT PUBLISH.

Appeal From the 40th District Court Ellis County, Texas Trial Court No. 30,410CR.

Before Chief Justice Gray, Justice Vance, and Justice Reyna.


MEMORANDUM OPINION


Herrera appeals his conviction for robbery. See TEX. PENAL CODE ANN. § 29.02(a) (Vernon 2003). We affirm. Sufficiency of the Evidence. In Herrera's fifth issue, he contends that the evidence of his culpable mental state was legally and factually insufficient. We understand Herrera's argument to concern the sufficiency of the evidence that he intended to deprive the victim of property at least "for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner." (Br. at 33 (citing Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App. [Panel Op.] 1981)).) A person commits [robbery] if, in the course of committing theft as defined in [Texas Penal Code] Chapter 31 and with intent to obtain or maintain control of property, he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
TEX. PENAL CODE ANN. § 29.02(a). Penal Code Chapter 31 defines theft as the "unlawful appropriate[ion] of property with intent to deprive the owner of property." Id. § 31.03(a) (Vernon Supp. 2006). "'Deprive' means," in relevant part, "to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner." Id. § 31.01(2) (Vernon Supp. 2006). "[P]roof of a completed theft is not required to establish the underlying offense of robbery. . . ." Bustamante v. State, 106 S.W.3d 738, 740 (Tex.Crim.App. 2003). Legal Sufficiency. "The inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether, after viewing the evidence in a light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Powell v. State, 194 S.W.3d 503, 506 (Tex.Crim.App. 2006); accord Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App. 2006); see Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). "A `legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence.'" Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000) (quoting Cardenas v. State, 30 S.W.3d 384, [389] (Tex.Crim.App. 2000)). "[C]ourts reviewing all the evidence in a light favorable to the verdict must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review." Evans at 165 n. 27 (quoting City of Keller v. Wilson, 168 S.W.3d 802, 821 (Tex. 2005)); accord Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). "When the court is faced with a record of historical facts that supports conflicting inferences, it must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution." Evans at 164 n. 19 (quoting Jackson at 326); Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999); Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). The State points to evidence that Herrera threatened the victim with a knife and punched him in the face, breaking his nose, before taking his bicycle, jacket, and beer. Viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found beyond a reasonable doubt that Herrera intended to deprive the victim of property. The evidence of Herrera's culpable mental state was legally sufficient. Factual Sufficiency. "There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?" Watson, 204 S.W.3d at 415 (quoting Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004)); accord Prible v. State, 175 S.W.3d 724, 730-31 (Tex.Crim.App.), cert. denied, 126 S. Ct. 481 (2005). "We set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met." Prible at 731; accord Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003); see also Watson at 414-15. "[A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the . . . evidence contradicts the jury's verdict before it is justified in" reversing for factual insufficiency of the evidence. Watson at 417. Herrera points to evidence that he was still in vicinity of the robbery when the police arrived. Viewing the evidence in a neutral light, we hold that a jury was rationally justified in finding beyond a reasonable doubt that Herrera intended to deprive the victim of property. The evidence of Herrera's culpable mental state was factually sufficient. We overrule Herrera's fifth issue. Impeachment. In Herrera's first issue, he contends that the trial court erred in overruling Herrera's Motion to Testify Free From Impeachment by Prior Conviction. "For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, . . . and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party." TEX. R. EVID. 609(a); see id. 403. "In determining whether a trial court erred in admitting evidence, the standard for review is abuse of discretion." McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005); accord Theus v. State, 845 S.W.2d 874, 876 (Tex.Crim.App. 1992) (evidence of prior conviction); Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex.Crim.App. 1991) (op. on reh'g). "A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree." McDonald at 576; accord Montgomery at 391. "A non-exclusive list" of "factors to be considered in weighing the probative value of a conviction against its prejudicial effect" includes
(1) the impeachment value of the prior crime,
(2) the temporal proximity of the past crime relative to the charged offense and the witness' subsequent history,
(3) the similarity between the past crime and the offense being prosecuted,
(4) the importance of the defendant's testimony, and
(5) the importance of the credibility issue.
Theus, 845 S.W.2d at 880 (internal footnote omitted). "The impeachment value of crimes that involve deception is higher than crimes that involve violence, and the latter have a higher potential for prejudice." Id. at 881. "If . . . the past crime and the charged crime are similar, the third factor will militate against admission." Id. "When the case involves the testimony of only the defendant and the State's witnesses, . . . the importance of the defendant's credibility and testimony escalates. As the importance of the defendant's testimony escalates, so will the need to allow the State an opportunity to impeach the defendant's credibility." Id. Herrera complains of the trial court's ruling concerning his conviction for felony assault on a prison employee in Michigan. See MICH. COMP. LAWS SERV. § 750.197c (LexisNexis 2006). The State concedes that the impeachment value of that conviction, though the offense was a felony, is less than would be that of a crime of deception. Herrera concedes that the closeness in time between the prior offense, for which he was convicted in 2001, and the offense for which he was on trial in 2006 weighs in favor of the State. The State concedes that the similarity between assault on a prison employee and robbery, an assaultive offense, weighs in Herrera's favor. Herrera offered no evidence before the jury in the guilt-or-innocence stage of trial; had he testified, he would have been the only defense witness. Herrera concedes, "The importance of the Appellant's testimony is crucial to the case." (Br. at 13.) The importance of Herrera's testimony, had he testified, and his credibility thus would weigh in the State's favor. The trial court did not abuse its discretion in overruling Herrera's motion. We overrule Herrera's first issue. Lesser Included Offense. In Herrera's second issue, he contends that the trial court erred in denying Herrera's requested instruction on the lesser included offense of assault. See TEX. PENAL CODE ANN. § 21.01(a) (Vernon 2003). "A trial court may instruct the jury on a lesser included offense if (1) the offense in question is a lesser included offense under Article 37.09 of the Texas Code of Criminal Procedure and (2) there is some evidence that would permit a rational jury to find that the defendant is not guilty of the greater offense but is guilty of the lesser included offense." Stadt v. State, 182 S.W.3d 360, 363 (Tex.Crim.App. 2005) (internal footnote omitted); accord Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993); see TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 2006). "It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense." Hampton v. State, 109 S.W.3d 437, 440 (Tex.Crim.App. 2003) (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997)). "The evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense." Sorto v. State, 173 S.W.3d 469, 476 (Tex.Crim.App. 2005), cert. denied, 126 S. Ct. 2982 (2006); accord Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App. 1998); Rousseau at 672. Herrera points to evidence that Herrera struck the victim "repeatedly . . . without provocation," that the victim left the area and called the police, that the victim's bicycle was still in the vicinity of the robbery when the police arrived, and that Herrera did not make any res-gestae statements to police. The State points to the evidence that Herrera struck and threatened the victim with a knife in the course of committing theft. Herrera does not point to evidence that would permit a rational jury to find him not guilty of robbery but guilty of assault. The trial court did not err in denying Herrera's requested instruction. We overrule Herrera's second issue. Extraneous Offenses. In Herrera's third issue, he contends that the trial court erred in overruling Herrera's objection to evidence of extraneous offenses. Herrera complains of "1) [e]vidence of [Herrera] kicking out the window of the patrol car after being arrested and 2) [e]vidence that [Herrera] slashed some tires in the neighborhood" of the robbery. (Br. at 24.) For example, Herrera complains of the following testimony on direct examination by the State:
Q What happened when [Herrera] got in the police car?
A. . . . He started kicking the windows, and he broke them.
(6 R.R. at 21.) Herrera also complains of the victim's testimony on cross-examination by Herrera:
Q So you went to the police station later and signed a statement?
A Yes. Because they call[ed] other people too because he had cut somebody else's tires.
(6 R.R. 30.) "Evidence of other crimes, wrongs or acts" other than those for which the defendant is on trial "is not admissible to prove the character of a person in order to show conformity therewith." TEX. R. EVID. 404(b). "Generally, evidence of extraneous offenses may not be used against the accused in a criminal trial." Daggett v. State, 187 S.W.3d 444, 450 (Tex.Crim.App. 2005); accord Gilbert v. State, 808 S.W.2d 467, 471-42 (Tex.Crim.App. 1991). "A trial court's ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard." Prible, 175 S.W.3d at 731; accord Montgomery, 810 S.W.2d at 391-92. "The erroneous admission of an extraneous offense is nonconstitutional error." Coleman v. State, 188 S.W.3d 708, 726 (Tex.App.-Tyler 2005, pet. ref'd), cert. denied, 127 S. Ct. 502 (2006); see Woods v. State, 152 S.W.3d 105, 118 (Tex.Crim.App. 2004). "Any other error, defect, irregularity, or variance," other than constitutional error, "that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). "The Rule 44.2(b) harm standard is whether the error in admitting the evidence `had a substantial and injurious effect or influence in determining the jury's verdict.'" Hernandez v. State, 176 S.W.3d 821, 824 (Tex.Crim.App. 2005) (quoting King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)). "[T]he conviction should not be reversed when, after examining the record as a whole, the reviewing court has a fair assurance that the error did not influence the jury or had but a slight effect." McDonald, 179 S.W.3d at 578; accord King at 271. "[O]verwhelming evidence of guilt is a factor to be considered under a" Rule 44.2(b) analysis. Motilla v. State, 78 S.W.3d 352, 357 (Tex.Crim.App. 2002); see Harris v. State, 790 S.W.2d 568, 585 (Tex.Crim.App. 1989). "An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection." Lane v. State, 151 S.W.3d 188, 193 (Tex.Crim.App. 2004) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003)) (alteration in Lane); accord Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). We assume without deciding that the trial court erred in overruling Herrera's objections to evidence of extraneous offenses. As to the evidence of Herrera's conduct after his arrest, besides the evidence of which he complains, the trial court admitted evidence of such violent conduct from the arresting officer without objection from Herrera. Any error in the admission of that evidence of which Herrera complains was cured. As to the evidence of Herrera's slashing of someone's tires, moreover, in light of the evidence of Herrera's guilt, the victim's passing reference in response to Herrera's question did not influence the jury, and any error was harmless. We overrule Herrera's third issue. Clerk's Record. In Herrera's fourth issue, he contends that "[t]he Clerk's record is incomplete and it is reversible error for the charge and verdict of the guilt or innocence phase of the trial to be uncertified by the Judge and unsigned by the foreman of the jury." (Br. at 8, 30.) "The appellant's brief must . . . contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(h). When an appellant does not provide argument with citations in support of an issue, the issue is inadequately briefed, presents nothing for review, and must be overruled. See Hall v. State, 160 S.W.3d 24, 26 n. 2 (Tex.Crim.App. 2004), cert. denied, 545 U.S. 1141 (2005); Hankins v. State, 132 S.W.3d 380, 385 (Tex.Crim.App.), cert. denied, 543 U.S. 944 (2004); McCarthy v. State, 65 S.W.3d 47, 49 n. 2 (Tex.Crim.App. 2001), cert. denied, 454 U.S. 1117 (2005); Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App. 2000) (op. on orig. submission); Cardenas, 30 S.W.3d at 393. Herrera's brief contains no argument in support of his issue. The issue is inadequately briefed. We overrule Herrera's fourth issue. CONCLUSION. Having overruled Herrera's issues, we affirm. Affirmed

The State argues that Herrera failed to preserve his complaint, because Herrera did not make an offer of proof of his testimony until after the trial court charged the jury (citing TEX. R. EVID. 103(a)(2)). See TEX. R. EVID. 103(b). We understand the trial court's ruling as one admitting, at least in limine, evidence of Herrera's prior conviction, and not a ruling excluding his testimony. Herrera preserved that complaint without regard to an offer of proof. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1). Although Herrera did not testify before the jury, and thus the State did not attempt to offer evidence of Herrera's conviction in the guilt-or-innocence stage of trial, we assume without deciding that Herrera preserved his complaint. Cf. TEX. R. APP. P. 33.1(a); Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003); Chavez v. State, No. 08-04-00319-CR, 2006 Tex. App. LEXIS 7878, *14 (Tex.App.-El Paso Aug. 31, 2006, no pet.) (not designated for publication); Morgan v. State, 891 S.W.2d 733, 735 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).

Herrera also objected to testimony to the effect that he "took the knife" and "started cutting some tires," on the ground that counsel "ha[d] not been given any notice of this." (6 R.R. at 38); see TEX. R. EVID. 404(b). Herrera does not pursue that objection on appeal.

A supplemental clerk's record contains a guilt-or-innocence charge signed and filed by the trial court and signed by the grand jury foreperson. (1 1st Supp. C.R. at 2, 2, 7, 8.)


Summaries of

Herrera v. State

Court of Appeals of Texas, Tenth District, Waco
Feb 7, 2007
No. 10-06-00181-CR (Tex. App. Feb. 7, 2007)
Case details for

Herrera v. State

Case Details

Full title:ALBERT HERRERA, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Tenth District, Waco

Date published: Feb 7, 2007

Citations

No. 10-06-00181-CR (Tex. App. Feb. 7, 2007)

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