Opinion issued September 23, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-01222-CR
ANDREW EHI OBADAGBONYI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 950981
O P I N I O N
Appellant, Andrew Ehi Obadagbonyi, pleaded not guilty to the offense of aggravated robbery. A jury found appellant guilty and assessed punishment of 15 years in prison. In four points of error, appellant complains that: (1) the evidence was legally insufficient to convict him; (2) the evidence was factually insufficient to convict him; (3) the trial court erred in overruling his objection to the State’s argument before the jury; and (4) the trial court erred in denying him a mistrial based on the State’s argument before the jury. We affirm.
BACKGROUND
At about 5:45 p.m. on December 29, 2002, Jose Cabral was walking to his car, which was located in the parking lot of the apartment complex where he lived. As Cabral was walking to his car, several men, including appellant, approached him. Appellant spoke to Cabral, then hit him with brass knuckles, causing him to fall to the ground. After Cabral fell, the men kicked and punched him as he lay on the ground. They took his wallet and ran off toward the rear of the apartment complex, leaving him on the ground.
After the men left, two witnesses to the attack, Joseph Rideaux and Natshia Tippit, went to help Cabral. Both Tippit and Rideaux identified appellant as one of the men in the group that attacked Cabral. At trial, Tippit testified that appellant was the man who started the attack by punching Cabral in the face.
Officer Curtis Mayfield was the first officer on the scene. He arrived at the apartment complex after the incident and saw a trail of blood leading to the driver’s side of an automobile in the parking lot. Mayfield determined that Cabral was the owner of the automobile and that he was in the hospital. Mayfield testified that he attempted to speak to Cabral in the hospital, but was unable to because Cabral spoke only Spanish and Mayfield did not speak Spanish. Cabral died of his wounds before he could be questioned.
Travis Thomas testified at trial that on December 29, 2002 he was hanging out in the parking lot of the apartment complex and talking with some women. Appellant and several other persons were also in the parking lot. Thomas knew appellant from high school and identified him at trial. Thomas testified that, as he and appellant were “chilling” in the parking lot, two men, Lorenzo and TJ, asked them if they wanted to “go hit a lick or something.” Thomas interpreted that phrase to mean doing something illegal to get money. Thomas refused, but appellant walked off with Lorenzo and TJ and another person known as “G-town.” Thomas believed that appellant’s action meant that he had agreed to join them in getting money.
Thomas further testified that he did not see the attack in the parking lot, but he saw the four men return, and saw G-town give money to the others, including appellant. Thomas stated that, when he asked appellant about it later, appellant told him that he had attacked a “white guy” in the parking lot and had received about $40.
Amenaghawon Obadagbonyi, appellant’s father, testified that he saw appellant at home at 2:00 p.m. and again at “close to 6:00 p.m.” Etinosa Obadagbonyi, appellant’s brother, testified that he remembered December 29, 2002, and that appellant remained home all day, but that appellant left after his father returned at around 6:00 pm. Ideyan Obadagbonyi, another brother, testified that he was home from college on December 29, 2002, and remembered that appellant remained in the family’s apartment for the entire day.
DISCUSSION
Legal and Factual Sufficiency
In his first and second points of error, appellant contends that the evidence was legally and factually insufficient to support his conviction. Specifically, appellant argues that the State did not rebut his alibi defense beyond a reasonable doubt.
An alibi is not an affirmative defense; rather, it is a fact intended to negate the State’s evidence of a defendant’s presence at the time and place of the commission of a crime. Giesberg v. State, 984 S.W.2d 245, 248 (Tex. Crim. App. 1998). The State has the burden of establishing all the essential elements of the offense, but does not have the burden of disproving beyond a reasonable doubt appellant’s alibi defense. Drake v. State, 860 S.W.2d 182, 185 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). Therefore, we review the evidence for legal and factual sufficiency.
In reviewing the evidence on legal sufficiency grounds, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In reviewing the evidence on factual sufficiency grounds, we must review the evidence as a whole neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The Court of Criminal Appeals has stated the following standard for a factual sufficiency review:
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? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Zuniga v. State, No. 539-02, slip op. at 8 (Tex. Crim. App. Apr. 21, 2004) (footnote omitted). In a factual sufficiency review, the appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).
Under both legal and factual sufficiency, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 671 (Tex App.—Houston [1st Dist.] 2003, pet. ref’d). The jury may believe all, some, or none of any witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (stating that the jury “could choose to believe or not believe the witnesses, or any portion of their testimony”).
Appellant asserts that the State built its case against him on the eyewitness accounts of Rideaux and Tippit and that their testimony varied considerably with regard to where they were standing and what they saw during the attack. Appellant also claims that Rideaux’s testimony at trial differed from the statement he gave to the police after the incident. Therefore, appellant argues, the testimony of Rideaux and Tippit was not credible. Appellant also contends that Thomas’s testimony that he heard appellant being recruited for the assault was not credible because Thomas testified that appellant said he had robbed a white man and Cabral was Hispanic.
The testimony of Rideaux, Tippit, and Thomas placed appellant at the scene of the crime and identified him as one of the individuals who beat and robbed Cabral. Viewing the evidence in the light most favorable to the prosecution, we hold that the evidence was legally sufficient for a rational juror to find the essential elements of the offense beyond a reasonable doubt.
Any discrepancies in the Testimony of Rideaux, Tippit, and Thomas were factors for the jury to consider in weighing the evidence. The jury was entitled to believe the testimony of those witnesses and to disbelieve the testimony of members of appellant’s family that he was at home during parts of the day in question. A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). After reviewing all of the evidence, we hold that the evidence is not factually insufficient under a beyond-a-reasonable-doubt standard. See Zuniga, No. 539-02, slip op. at 8.
We overrule appellant’s first and second points of error.
Objection to State’s Jury argument
In his third point of error, appellant argues that, because the State’s jury argument improperly went outside the record, the trial court erred when it denied his objection to the argument.
Proper jury argument falls within four categories: (1) summation of the evidence; (2) reasonable deduction from that evidence; (3) response to opposing counsel; and (4) plea for law enforcement. Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000). Before an appellant will be permitted to complain on appeal about an erroneous jury argument, he must show that he timely and properly objected to the argument and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Specific objections are required so that the trial court will have an opportunity to rule and opposing counsel will have an opportunity to correct any error. Appellant did not specify what he was objecting to, or what the basis of his objection was, in the trial court and has failed to preserve any error. Tex. R. App. P. 33.1(a). We overrule appellant’s third point of error.
Motion for Mistrial
In his fourth point of error, appellant argues that the trial court erred by overruling his request for a mistrial based on the State’s jury argument because it contained facts not in the record. Appellant complains of the following remarks:
Prosecutor:Travis Thomas, you know, he also didn’t sound like he wanted to be here. You know, being brought back from TDC having to tell you what he saw, having to snitch on somebody that he knows. Maybe he saw more. Maybe Joseph saw more. Maybe they’re just unwilling to really tell you the whole thing. Maybe there’s just some unwritten code in the neighborhood that you, you know, you stick by.
Appellant’s Counsel:Objection, Your Honor. No evidence of that.
The Court:Sustained.
Appellant’s Counsel: Ask for an instruction, Your Honor.
The Court:Disregard.
Appellant’s Counsel:Move for a mistrial.
The Court:Denied.
Appellant argues that no instruction could have cured the “prosecution’s implication that the neighborhood where the alleged offense took place contained organized crime groups with an unwritten code not to testify fully before juries about criminal activities.”
A trial court’s denial of a motion for mistrial is reviewed under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Mistrial is appropriate only for “highly prejudicial and incurable errors.” Id. The court’s denial of appellant’s motion for mistrial constitutes error only if the court’s instruction to disregard was inadequate to cure any prejudicial effect. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994). An instruction to disregard is presumed inadequate only in the most blatant cases. Moore v. State, 999 S.W.2d 385, 405 (Tex. Crim. App. 1999). An appellate court presumes that the jury will follow instructions to disregard. Ladd, 3 S.W.3d at 567.
There is no indication that the State’s argument could not be corrected through a sustained objection and an instruction to disregard. We hold that the trial court did not abuse its discretion by denying appellant’s motion for mistrial. We overrule appellant’s fourth point of error.
CONCLUSION
We affirm the judgment of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).