Memorandum Opinion filed April 3, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 209th District Court Harris County, Texas, Trial Court Cause No. 989113.
Panel consists of Justices YATES, FOWLER, and GUZMAN.
Appellant Lisa Margaret Hunter-Odulate was convicted of aggravated robbery and sentenced to eight years confinement in the Texas Department of Criminal Justice, Institutional Division. In her first two issues, she challenges the legal and factual sufficiency of the evidence to support her conviction. In her second and third issues, appellant contends the trial court abused its discretion in denying her a mistrial based on (1) improper jury argument and (2) an improper comment on her silence during questioning. Because we conclude the evidence is legally and factually sufficient and the trial court properly denied her requests for mistrial, we affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUNDOn May 27, 2004, appellant was indicted for the offense of aggravated robbery, alleged to have occurred on or about January 1, 2004. At her trial, which occurred in late November 2006, the State presented testimony from the complaining witness and several Houston Police Department ("HPD") officers, summarized below. HPD Sergeant James Wright testified that he was dispatched to a game room in the 6800 block of Gessner in Houston in the early morning hours of January 2, 2004, in response to an aggravated robbery that had occurred around midnight on January 1, 2004. According to Wright, when he arrived at the game room, he found the complaining witness, Nizar Ali, shaken up and scared. He saw that most of the games in the establishment had been broken into and damaged. Wright stated that he found an extension cord lying in the floor in the back bathroom. According to Wright, Ali identified three suspects: two males and a female. Ali described the female suspect, as well as her vehicle, which Ali identified as a silver four-door Hyundai with slight damage on the rear bumper. Wright testified that Ali provided a partial license plate number. A print unit was called to the scene, but Wright stated that no leads in the investigation came out of the processing of the crime scene. Wright further stated that HPD was unable to find any suspects based on the information provided by Ali at the scene. On cross-examination, Wright admitted that, from the back bathroom, a person could not see what was occurring in the main part of the game room. The complaining witness, Nizar Ali, described the game room, which he had purchased several months before the robbery occurred. The game room had numerous video games to play, with players winning tickets. The tickets could then be turned in for prizes. Ali described the prize cases in the game room as containing items such as leather purses, watches, jewelry, and perfume. According to Ali, the windows of the game room were tinted to keep the inside dark so the graphics on the games would look better. Ali stated that he always kept the door to the game room locked; Ali only unlocked the door to let people in after they rang a bell. Ali testified that appellant gave her name as "Cynthia," and had been a customer of the game room before the evening of the robbery. According to Ali, appellant came into the game room on the evening of January 1 at around 11 p.m. After playing games for a while, appellant told Ali that she needed to leave to get some cash. Ali stated that he saw appellant get into a silver Hyundai and drive away, presumably to get cash. Sometime after the other customers left the game room, appellant returned. Ali told appellant that he was closing at midnight, but let her in to play games. Ali testified that shortly after appellant entered the game room, a car pulled into the parking lot and two young African American men got out and approached the game room. Although Ali initially refused to let them in, they stated that appellant was their sister. Because appellant indicated to Ali that the men were her brothers, Ali unlocked the door and let them into the game room. Ali stated that, as he was locking the door after the men entered, one of the men approached him from behind and hit him with what Ali thought was a gun. According to Ali, the men pointed a gun at him and ordered him to lay down on the floor. Fearing for his life, Ali complied. As he lay down, Ali saw appellant move toward the area where he kept his cash box; he also stated that he saw appellant "cleaning up." Ali stated that appellant gave no indication she was scared or surprised by the robbery. Ali testified that the men then dragged him into the bathroom and tied his hands behind his back with a phone cord. According to Ali, one of the men stayed in the bathroom with him, pointing a gun at his head. While he was lying on the bathroom floor, he heard the other male suspect asking for cutters. He did not hear any response, but then heard cutting and breaking of machines. He then heard both male and female voices asking for keys to the prize cases; in response to the requests, the male suspect standing over Ali with the gun searched Ali's pockets, finding Ali's keys, cash, and wallet. Ali described hearing the show cases being unlocked and the sound of what he thought was a garbage bag being opened and items being put into the bag. Shortly thereafter, Ali stated he was ordered not to move and then all three suspects left together. After waiting about ten minutes because he was frightened, Ali managed to untie the cord around his arms and get out of the bathroom. He then called 911 to report the robbery. When Ali looked around the game room, he saw that the games all had broken locks and appeared empty. Ali testified that when police arrived about twenty minutes after he called, he described the female suspect to the officers. He also gave a description of her vehicle and a partial plate number, telling the officers that he thought the last three digits of the license plate were "NF4." He described the two male suspects as 20-to 25-year-old African American men and the female suspect as a slightly "chubby" 40-to 45-year-old African American female with a mole on her face. According to Ali, he informed the police officers about the items and cash stolen, indicating that over $2,000 in cash had been taken, as well as several leather purses, watches, jewelry, and perfume sets. Ali stated that HPD was unable to find the suspects based on the information he provided immediately following the robbery. According to Ali, however, appellant returned to the game room about two months later, seeking entry by ringing the bell. Ali did not let her in, but he took down the full license plate number of her car. He also stated that appellant was carrying a leather purse that he recognized as being one of the ones stolen the night of the robbery. Ali testified that he called HPD, gave his case number from the robbery, and reported appellant's full license plate number. Later, he met with a police officer at the HPD station to attempt to identify appellant from a photographic array. Based on the photographs provided, Ali was able to identify appellant as the female suspect from the robbery; he signed his name on her photograph and the array was admitted into evidence at trial. While being cross-examined, however, Ali testified that he never saw appellant with a gun and that it was dark inside the game room. Glenn Ebers, an investigator with the HPD Robbery Division, confirmed much of Ali's testimony. He stated that, initially, he was unable to identify any of the suspects from the robbery based on the information obtained during the investigation immediately following it. But he explained that on April 19, 2004, he got a voice mail message from Ali, who stated that he had seen the female suspect at the game room again and was able to provide the full license plate number from her car. Ebers stated that the license plate number provided by Ali was registered on a 2000 silver four-door Daewoo, owned by appellant and a male he assumed was her husband. Based on this information, Ebers testified that he generated a photographic array using appellant's driver's license photograph and several similar photographs from the same database. Ebers stated that on May 26, 2004, he showed the photographic array to Ali and that Ali identified appellant as "the one" who had been involved in the robbery on January 1, 2004 at the game room. Ebers testified that he interviewed appellant regarding the robbery. When asked to describe her demeanor during the interview, Ebers stated she was calm and "didn't seem to be concerned about her situation." Appellant's trial counsel objected to this response, stating that it violated her Fifth Amendment right to remain silent. The trial court sustained the objection, instructed the jury to disregard, and denied appellant's request for a mistrial. At the conclusion of Ebers' testimony, the State rested. In her defense, appellant called one witness and testified herself. First, Ledisi Meneno testified for appellant. According to Meneno, he and appellant had attended a New Year's Eve party together on December 31, 2003. Meneno stated that he and appellant were together on New Year's day. Although appellant left at 7:00 a.m. the morning of January 1, 2004, Meneno testified that they went to dinner at a restaurant about 8:00 p.m. that evening. After dinner, the two returned to Meneno's apartment and watched TV; Meneno stated that he fell asleep about 11:00 p.m. while appellant was there. When he awoke about an hour later, appellant was still there. According to Meneno, appellant was gone by the time he woke up the morning of January 2, 2004 at around 10:00 or 11:00 a.m. On cross examination, Meneno admitted that he and appellant had a "boyfriend-girlfriend" relationship. He also stated that he had no idea whether she had been at the apartment during the times he was asleep. Appellant testified that, at the time of the robbery, she was having an affair with Meneno. She also stated that the first time she went to the game room was in April 2004, although she later stated she had been to the facility about four months before the robbery. She repeatedly testified that she was not there on January 1, 2004. She also stated that she was with Meneno at his apartment on January 1, although she left some time in the morning to get a change of clothing from her house and returned to the apartment. She admitted that she told the investigating officer, Ebers, that she had never been to the game room and that she had been at a motel on January 1. During cross-examination, appellant also admitted that the story she told police during her interview on June 8, 2004, and the story she was telling the jury at trial differed. After her testimony, the defense rested. The State then recalled Ebers as a rebuttal witness. He testified that appellant told him she had never been to the game room. According to Ebers, appellant also stated she had spent January 1, 2004, at a motel and at some parties. On cross-examination, Ebers admitted that appellant had informed him during her interview that she had been having an affair with Meneno. Both sides then rested and closed, and the trial court charged the jury. The jury deliberated and found appellant guilty of aggravated robbery as charged in the indictment. After a brief punishment hearing, the jury assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for eight years. This appeal timely ensued.
II. ISSUES PRESENTEDIn her first two issues, appellant challenges the legal and factual sufficiency of the evidence to support her conviction. In her third and fourth issues, appellant asserts that the trial court erred in refusing to grant a mistrial in response to the prosecution's comment regarding appellant's hiring of the alleged co-actors during closing argument and in response to an alleged comment on her failure to testify.
A. Sufficiency of the EvidenceAppellant's sufficiency challenges focus on the lack of evidence regarding her actions once the two unknown male suspects entered the game room. She challenges the sufficiency of the evidence to establish that she assisted these men when they began robbing the complainant. She further asserts that there was no evidence that she even remained in the game room once the robbery began. 1. The Charged Offense The jury charge, in accord with the indictment, authorized the jury to convict appellant of aggravated robbery, either as a principal or as a party, under Texas Penal Code sections 7.02(a)(2), 29.02(a)(2), and 29.03(a)(2):
Now, if you find from the evidence beyond a reasonable doubt that on or about the 1st day of January, 2004, in Harris County, Texas, the defendant, Lisa Margaret Hunter-Odulate, did then and there unlawfully, while in the course of committing theft of property owned by Nizar Ali and with intent to obtain or maintain control of the property, intentionally or knowingly threaten or place Nizar Ali in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a firearm; or if you find from the evidence beyond a reasonable doubt that on or about the 1st day of January 2004, in Harris County, Texas, an unknown person or persons, did then and there unlawfully, while in the course of committing theft of property owned by Nizar Ali and with intent to obtain or maintain control of the property, intentionally or knowingly threaten or place Nizar Ali in fear of imminent bodily injury or death, and the unknown person or persons did then and there use or exhibit a deadly weapon, to-wit: a firearm, and that the defendant, Lisa Margaret Hunter-Odulate, with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid the unknown person or persons to commit the offense, if she did, then you will find the defendant guilty of aggravated robbery as charged in the indictment.Because the use of a deadly weapon is an element of the offense of aggravated robbery, the State automatically carries the burden of proving appellant knew a deadly weapon would be used or exhibited in the commission of the offense. Sarmiento v. State, 93 S.W.3d 566, 570 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). Thus, before the jurors were authorized to find appellant guilty, even as a party, they had to first believe beyond a reasonable doubt appellant knew a deadly weapon would be used in the commission of the robbery. Id. (citing Johnson v. State, 6 S.W.3d 709, 714 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd)). 2. Legal Sufficiency When reviewing the legal sufficiency of the evidence, we do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789 (1979). Rather, we examine all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. at 319, 99 S.Ct. at 2789; Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (en banc). Our review of the evidence includes both properly and improperly admitted evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). We consider both direct and circumstantial evidence, and all reasonable inferences that may be drawn therefrom in making our determination. Id. "Evidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement." Salinas v. State, 163 S.W.3d 734, 739 (Tex.Crim.App. 2005) (quoting Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994) (op. on reh'g)). Events occurring before, during, and after the commission of the offense may show party participation; courts may rely on actions of the defendant that "show an understanding and common design" to commit the offense. Id. at 739-40. Finally, circumstantial evidence may be used to prove party status. Ransom, 920 S.W.2d at 302. Appellant's legal sufficiency argument rests on two main allegations: (1) there was no evidence that appellant aided in the use or carrying of the firearm; and (2) the fact that she "effectuated" the two male suspects' entry into the game room by claiming to know them was not a crime "in and of itself." We address each of these arguments in turn, then discuss the legally sufficient evidence establishing appellant's guilt. First, because appellant was charged as a party as well as a principal, the State did not need to establish she used or carried the firearm; instead, the State had to prove that she knew a deadly weapon would be used in the commission of the robbery. See Sarmiento, 93 S.W.3d at 570. In this case, the complainant, Nizar Ali, testified that appellant did not appear surprised or otherwise react to the fact that the unknown males brandished a gun during the robbery. From Ali's testimony, the jury could infer that appellant's lack of reaction to the use of the firearm meant she knew that it would be used during the commission of the robbery. Second, although appellant's assistance in convincing Ali to let the armed robbers into the game room is not, by itself, a crime, we may look to events occurring before, during, or after the offense to establish appellant's party participation. Salinas, 163 S.W.3d at 739-40. Before the offense, appellant frequented the game room and identified herself to Ali with a fictitious name. On the evening of the robbery, appellant left the game room, only returning after all the other customers had departed. She convinced Ali to let the men into the game room by claiming that they were her brothers. Based on Ali's testimony summarized above, the jury could reasonably infer that appellant gathered the cash from the cash box, requested the keys to the game room prize cases, helped find lock cutters to open the locks on the games, and left with the men. Finally, Ali testified that when appellant returned to the game room several months after the robbery, she was carrying one of the purses that had been stolen during the robbery. Each of these acts establishes appellant's "understanding and common design" to commit the aggravated robbery. See id. Viewing this evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found that appellant was a party to the commission of the offense of aggravated robbery. We therefore overrule appellant's first issue. 3. Factual Sufficiency When reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light and set aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (en banc)). Before we may reverse for factual insufficiency, we 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. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). When reviewing the evidence, we must avoid intruding on the factfinder's role as the sole judge of the weight and credibility of the witness testimony. See Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000) (en banc). We do not re-evaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the factfinder. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). Finally, we must discuss the most important and relevant evidence that supports the appellant's argument on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Appellant asserts that the State "never offered evidence that [she] aided or assisted in the commission of the robbery." We disagree. The evidence discussed above establishes that appellant was a party to the aggravated robbery. And despite appellant's claims that she was not in the game room, the jury is the sole judge of the weight and credibility of the witnesses's testimony. See Johnson, 23 S.W.3d at 9. Finally, although Meneno indicated appellant was with him on the evening in question, he admitted that he was asleep for at least part of the evening and that he was not aware whether appellant remained in his apartment while he was asleep. Viewing all the evidence in a neutral light, we cannot say that the jury's verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We therefore overrule appellant's second issue.
B. Motions for MistrialIn her final two issues, appellant asserts the trial court erred in denying her motions for mistrial. First, she asserts that the State injected new and harmful facts into the case during closing argument by asserting that appellant had hired the two men who assisted in the robbery. Second, she contends that the trial court should have granted a mistrial following the State's introduction of testimony regarding her demeanor during questioning because such demeanor testimony was an improper comment on her post-arrest silence in violation of the law and her constitutional rights. 1. Standard of Review We review the trial court's denial of a motion for mistrial under an abuse-of-discretion standard. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004) (en banc). A mistrial is an extreme remedy for prejudicial events that occur at trial and should therefore be exceedingly uncommon. Austin v. State, 222 S.W.3d 801, 815 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd). A mistrial should only halt trial proceedings when an error is so prejudicial that continuing the trial would be wasteful and futile because an impartial verdict cannot be reached or a conviction would have to be reversed on appeal due to obvious error. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). We conduct our harm analysis in light of any curative instruction by the trial court. Hawkins, 135 S.W.3d at 77. 2. Comments During Closing Argument In issue three, appellant complains that the trial court erred in denying her motion for mistrial after the following comments were made by the State during closing argument, "And [appellant] waited until that last person left and she came back and she sat at that machine and she waited some more. And guess who came along? The two people that she had hired to get together with her." Appellant objected that this statement was outside the record. The trial court sustained the objection and instructed the jury as follows, "The last statement was not in evidence. You will disregard the last statement `hired anybody.'" Appellant moved for a mistrial, which the trial court denied. We agree with the trial court that the statement by the prosecutor was inappropriate. But we do not agree with appellant that this statement warrants reversal. Generally, argument may include (a) summation of the evidence, (b) reasonable deductions from the evidence, (c) answers to argument of opposing counsel, and (d) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000) (en banc). But even when argument exceeds the bounds of these permissible areas, it will not require a mistrial unless, in light of the entire record, the argument is extremely improper, violates a mandatory statute, or injects new and harmful facts into the proceedings. Id. Further, the "remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial." Id. Finally, an instruction to disregard will generally cure the error. Id. Here, the prosecutor misspoke when she claimed appellant hired her accomplices. But the trial court sustained appellant's objection and promptly instructed the jury to disregard. We presume the jury followed the trial court's instruction to disregard. See id. at 116. Further, the prosecutor quickly apologized and stated that appellant's accomplices were "[t]he two people that she worked with." We cannot say that this comment is so flagrent as to warrant the drastic remedy of mistrial. See id. at 115-16. Because the trial court did not abuse its discretion in denying appellant's request for a mistrial, we overrule her third issue. 3. Alleged Comment on Appellant's Post-Arrest Silence/Failure to Testify While HPD robbery division investigator Ebers was testifying, the State questioned him about his interview of appellant. After detailing the legal warnings he had provided appellant and stating that appellant waived her rights orally, the State asked Ebers to comment on appellant's demeanor during the interview. In response, Ebers stated, "She was calm and didn't seem to be concerned about her situation." Appellant's counsel objected, stating specifically that Eber's last statement violated appellant's Fifth Amendment right to remain silent. In her fourth issue, appellant contends the trial court erred by refusing her request for a mistrial because this statement constituted an improper comment on her failure to testify in violation of the law and her state and federal constitutional rights. But, as illustrated above, appellant only preserved her complaint as it relates to her Fifth Amendment right to silence under the United States Constitution. See, e.g., Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004) (en banc) (holding that an objection based on the Fifth Amendment was not sufficient to preserve complaint on appeal that rights to post-arrest silence under the Texas Constitution had been violated). Thus, we address her complaint only as it relates to her federal constitutional right to silence. The Fifth Amendment's prohibition against self-incrimination is violated by a comment on a defendant's post-arrest silence. Dinkins v. State, 894 S.W.2d 330, 356 (Tex.Crim.App. 1995) (en banc). Such a comment is tantamount to a comment on a suspect's failure to testify at trial because it raises an inference of guilt from the invocation of a constitutional right. Id. The prohibition against commenting on post-arrest silence "includes testimony regarding a defendant's contrition or remorse because such testimony can only come from the defendant." Id. As indicated above, Ebers provided appellant with the necessary legal warnings at the outset of his interview. Specifically, Ebers testified that he warned appellant as follows:
You have the right to remain silent and not make any statement at all and that any statement you make may be used against you and probably will be used against you at your trial. Any statement you make may be used as evidence against you in court.
You have the right to have a lawyer present to advice [sic] you prior to and during any questioning. If you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questioning.
You have the right to terminate this interview at any time.According to Ebers, appellant indicated she understood these warnings and legal rights, and orally agreed to waive her rights. An improper comment on a suspect's post-arrest silence does not lead to automatic reversal. Id. Generally, an instruction to disregard an improper comment on a defendant's post-arrest silence is sufficient to cure any harm. Ho v. State, 171 S.W.3d 295, 306 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (op. on reh'g). In this case, the trial court issued the following prompt and strongly worded instruction to disregard:
Members of the jury[,] the last statement was not responsive at all. We're asking her demeanor. Demeanor only, how she looked. I'm going to tell you right now when you go back there and deliberate if anybody brings up the last statement by the investigator, if someone calls me, writes me a note, I'm going to declare a mistrial immediately.
Can everybody disregard that and take everything else into consideration, but not that statement by the detective or the investigator, please? If you can't[,] let me know and we'll declare a mistrial right now. Good.This prompt instruction to disregard sufficiently cured any harm that may have resulted from Ebers' allegedly improper comment. Under these circumstances, we conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. Accordingly, we overrule appellant's final issue.