Opinion issued June 8, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-01212-CR
JOSEPH JAMES SIMON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 974537
MEMORANDUM OPINION
A jury found appellant, Joseph James Simon, guilty of aggravated robbery and assessed punishment at 30 years’ imprisonment. In his first issue, appellant contends that the trial court committed reversible error by allowing into evidence a news videotape recording of his arrest. In his second and third issues, appellant contends that the evidence was legally and factually insufficient to support his conviction because the evidence failed to show that he ever maintained control of, or attempted to obtain or maintain control over, personal property belonging to the complainant, Ahmed Khan. In his fourth and fifth issues, appellant complains that the evidence was legally and factually insufficient to support his conviction under the law of parties because the record fails to show that he aided, assisted, or encouraged Benjamin Guillory to commit the alleged offense. We affirm.
Background
At approximately 2:00 a.m. on January 19, 2004, Ahmed Khan finished a cell phone call while sitting in his car in his apartment parking lot. He looked up and saw a man knock on the front passenger window with a gun. The man was later identified as appellant. A second man carrying a gun appeared at Khan’s driver side window. This man was later identified as Benjamin Guillory.
Khan rolled down his windows, and both men demanded money. When he responded that he did not have any money, the men accused Khan of lying and threatened to kill him. While still pointing his gun at Khan, Guillory searched Khan’s pockets for money. Once satisfied that Khan did not have any money on him, appellant and Guillory asked if he or his friends kept guns inside their apartment. When Khan said that they did not, the men again threatened to kill him if he was lying. Khan offered to go inside the apartment and bring money out to them if he had any. The men wanted to go with Khan into the apartment and instructed him to speak only English to his roommates. When Khan and the two men entered the apartment, he told his two roommates, “There’s nothing to worry about. They’re my classmates.” Guillory then followed Khan to his bedroom while appellant stood guard at the apartment door.
Guillory took money out of Khan’s wallet and then asked for his ATM card and personal identification number (“PIN”). Appellant and Guillory led Khan out of the apartment and into Khan’s car. Khan drove, while Guillory sat in the passenger seat, and appellant sat in the back seat. Appellant instructed Khan to drive to a nearby bank. When they arrived at the bank, Guillory again asked Khan for his PIN and threatened to kill him if the number was wrong. Guillory went to the bank ATM alone, but attempted to withdraw more money than the ATM would allow in one transaction. He returned to the car and accused Khan of lying about his PIN. After Khan swore that he gave the correct PIN, Guillory went back to the ATM, but again tried to withdraw more money than allowed.
After Khan left the apartment with appellant and Guillory, one of his roommates, Hassan Nasir, called 911 to report that Khan had been kidnaped. He noticed Khan’s odd behavior when Guillory and appellant were in the apartment. The police arrived at the bank and found the men sitting in the car near the ATM. The police instructed Khan to exit the vehicle and ordered Guillory and appellant to surrender. Once Guillory and appellant were apprehended, the police found a gun under the front passenger seat of the car where Guillory was sitting and another gun under the back seat where appellant was sitting. Neither weapon was examined for fingerprints.
Appellant testified at the guilt phase of trial. He testified that he was riding around with Guillory on the night of the alleged offense. He said that Guillory had told him that Khan owed him money. Appellant also testified that he did not know Guillory was armed until they arrived at the ATM. He further insisted that the gun found in the back seat of Khan’s car did not belong to him.
The jury was authorized to convict appellant for the offense of aggravated robbery either as a principal or under the law of parties. The jury found appellant guilty of aggravated robbery and assessed punishment at 30 years in prison.
Admissibility of Videotape Evidence
In his first point of error, appellant contends that the trial court committed reversible error by allowing a videotaped newscast of his arrest into evidence. Appellant argues that the admission of the videotape was highly prejudicial because it showed him being taken into police custody. He further claims that the videotape had no probative value because his arrest was undisputed.
Standard of Review
The trial court’s ruling on the admission of evidence will not be overturned absent a clear abuse of discretion. See Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993). The sufficiency of the predicate for the admission of evidence is also within the sound discretion of the trial court. See Lee v. State, 874 S.W.2d 220, 222 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Evidence is inadmissible at trial where its prejudicial effect substantially outweighs its probative value. Tex. R. Evid. 403.
In this case, during Officer Stephen Hendrie’s testimony, the State offered the video news clip of the arrest scene. The video was shown to the jury with the sound turned off. Under Rule 403, a trial court’s analysis of the admissibility of a silent videotape is the same as it is for still photographs. See Roy v. State, 608 S.W.2d 645, 649 (Tex. Crim. App. 1980). Motion pictures are admissible when they are properly authenticated, relevant to an issue, and not violative of the rules of evidence for the admissibility of photographs. See Lopez v. State, 630 S.W.2d 936, 939 (Tex. Crim. App. 1982). As with the admissibility of still photographs, the trial court’s decision regarding the admission of a videotape may not be disturbed on appeal absent an abuse of discretion. See Gordon v. State, 784 S.W.2d 410, 412-13 (Tex. Crim. App. 1990).
The videotape in this case is a news video taken at the scene of the arrest. It shows appellant sitting in a police car. The video in the record does have sound, but the record indicates that the jury did not hear the actual news report. Before the video was played to the jury, the State asked one of the investigating officers, Officer Hendrie, “does it fairly and accurately depict both of the defendants as they appeared those early morning hours and part of the scene that’s shown on the clip.” Officer Hendrie answered, “Yes, ma’am.” The video was published to the jury twice without sound. Appellant did not cross-examine any witnesses about the videotape, and the video was not mentioned in the closing arguments of either party.
Appellant argues that the facts surrounding his arrest were not in dispute and his defense at trial was not mistaken identity; thus, the video had no probative value. Instead, appellant contends that his defense at trial was that he did not participate in robbing Khan, although he was with Guillory the night of the robbery. Requiring a defendant to wear handcuffs before the jury at trial infringes his constitutional presumption of innocence. See Dennis v. State, 925 S.W.2d 32, 40 (Tex. App. —Tyler 1995, pet. ref’d) (citing Marquez v. State, 725 S.W.2d 217, 230 (Tex. Crim. App. 1987); Clark v. State, 717 S.W.2d 910, 919 (Tex. Crim. App. 1986)). The only exceptions to the prohibition are where it is shown on the record that there are “exceptional circumstances” or a “manifest need” for such a restraint, Cline v. State, 463 S.W.2d 441, 444 (Tex. Crim. App. 1971), or where the encounter is away from the courtroom and is “momentary, inadvertent and fortuitous” in nature. Clark, 717 S.W.2d at 919.
Although, in this case, appellant was not in front of the jury in handcuffs, the news videotape showing him in the back of a patrol car at the crime scene allowed the jury to view him restrained. The scene of the crime may properly be shown to the jury as evidence, but the State must also observe the rule that the defendant be brought before the jury “unfettered.” Lucas v. State, 791 S.W.2d 35, 55 (Tex. Crim. App. 1989). The record must reflect “good and sufficient reason” for showing the scene of the defendant in restraints, and, if it does not, we must find error in the admission of the videotape. Id.
In this case, the record reflects no facts to support the use of the video. Before the State called Officer Hendrie to the stand, appellant’s counsel informed the court that he had an objection that he wanted to put on the record. The following exchange between appellant’s counsel and the trial court occurred during trial, outside the presence of the jury:
APPELLANT’S COUNSEL: Judge, there was a news coverage of the arrest of [appellant] on the 19th of January of this year. I believe [the State] is going to offer into evidence a blurb of that tape that will show the face of the defendant at the time of the arrest. And we would object to that, Your Honor, because he’s already been identified by the victim in the case. We predict and know that a police officer will come and testify and say that he arrested him at the scene. And we feel that to show this tape of him being handcuffed and put in the police car is only offered to prejudice the jury and wouldn’t do anything probative for the case, Your Honor.
THE COURT: That’s overruled.
The State did not participate in this exchange, nor did it explain in the record why it was important to have this videotape admitted into evidence. Because the State did not articulate a good and sufficient reason for showing appellant in custody, we hold that it was error for the trial court to have admitted the news videotape showing appellant in handcuffs.
However, to warrant reversal of the judgment of the trial court, error must affect the substantial rights of the parties. See Tex. R. App. P.44.2(b); Prible v. State, 175 S.W.3d 724, 737 (Tex. Crim. App. 2005). “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). “Substantial rights are not affected by the erroneous admission of evidence if the appellate court, after examining the record as a whole, has a fair assurance that the error did not influence the jury, or had but a slight effect. Soloman v. State, 44 S.W.3d 356, 356 (Tex. Crim. App. 2001). In determining whether substantial rights were affected by the erroneous admission of evidence, the question is not simply whether there was sufficient evidence to support the verdict. Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003). Instead, the reviewing court should consider the entire record, including testimony, physical evidence, jury instructions, the State’s theories and any defensive theories, closing arguments, and voir dire, if applicable. Id.
Important factors to consider when evaluating harm include the nature of evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Bagheri, 119 S.W.3d at 763. We should also consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert. Id.
The error in question was the trial court’s admission of the news videotape showing appellant handcuffed in police custody. Similar to the video in Dennis, the video presented in this appeal was extremely short. See Dennis, 925 S.W.2d at 41 (“the time that restraints are visible on Dennis is extremely short”). Here, the effect of the error is slight because the jury could have reasonably expected a suspect arrested for aggravated robbery to be handcuffed and taken into police custody at the scene. See Dennis, 925 S.W.2d at 41 (finding that the videotape indicates nothing more than that the police used a customary procedure typical for an aggravated robbery crime scene). Additionally, in Bagheri, the erroneous evidence was argued by an expert and emphasized repeatedly during trial—particularly during closing arguments. Bagheri, 119 S.W.3d at 763 (holding that it was fair to assume that the erroneous admission of evidence influenced the jury or had more than a slight effect). Unlike Bagheri, this evidence was not argued by an expert and the State did not emphasize the short video clip or mention it in its closing argument. Moreover, the State introduced into evidence a gun found underneath the seat where appellant had been sitting in Khan’s car; Khan identified appellant as one of the men who robbed him at gunpoint; and appellant admitted being with Guillory during the commission of the robbery. Given the strength of this other evidence, we have a fair assurance that the error in admitting the videotape did not influence the jury, or had but a slight effect. We hold that the appellant’s substantial rights were not violated.
Accordingly, we overrule appellant’s first point of error.
Sufficiency of the Evidence
In his second and third points of error, appellant contends that the evidence was legally and factually insufficient to support his conviction for aggravated robbery, where the evidence failed to show that appellant ever maintained control of, or attempted to obtain or maintain control over, property belonging to Khan. In his fourth and fifth points of error, appellant complains that the evidence was legally and factually insufficient to support his conviction of aggravated robbery under the law of parties because the record fails to show that he aided, assisted, or encouraged Benjamin Guillory to commit the alleged offense.
Standard of Review
When conducting a legal-sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational fact finder 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); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Although a legal-sufficiency analysis entails a consideration of all evidence presented at trial, we may neither re-weigh the evidence nor substitute our judgment for the jury’s. King, 29 S.W.3d at 562. The jury, as trier of fact, is the sole judge of the credibility of witnesses and may believe or disbelieve all or any part of a witness’s testimony. Reece v. State, 878 S.W.2d 320, 325 (Tex. App.—Houston [1st Dist.] 1994, no pet.).
In a factual-sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside 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. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). In conducting the factual-sufficiency review, we must also employ appropriate deference to the fact finder so that we do not substitute our judgment for that of the fact finder. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004). Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997). What weight to be given contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor. Id. at 408-09. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5.
Law of Parties
The jury charge authorized the jury to find appellant guilty either as a principal or under the law of parties. Under the law of parties, a person is criminally responsible for the offense committed by another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). Although the mere presence at the scene of a crime is not alone sufficient to make an individual vicariously liable for a crime, it is a circumstance that, when combined with other facts, may suffice to show that the accused was a participant. See Ware v. State, 467 S.W.2d 256, 258 (Tex. Crim. App.1971). The law of parties applies to the offense of aggravated robbery. See Johnson v. State, 32 S.W.3d 388, 391-92 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
A person commits aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Tex. Pen. Code. Ann. § 29.03(a)(2) (Vernon 2003); Id. § 29.02(a)(2) (Vernon 2003) (defining robbery as intentionally or knowingly threatening or placing another in fear of imminent bodily injury or death in the course of committing theft). “In the course of committing theft” means conduct that occurs in an attempt to commit theft, during the commission of theft, or in immediate flight after the commission of theft. Id. § 29.01(1) (Vernon 2003). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. Id. § 31.03(a) (Vernon 2005).
Analysis
Appellant contends that the evidence is legally and factually insufficient to prove the third element of aggravated robbery, namely, that he did not have the intent to obtain or maintain control of Khan’s property, because there is no evidence showing that he participated in the aggravated robbery with Guillory. We disagree. Because the jury was charged on the law of parties, it could have reached its verdict by deciding that Guillory committed the elements of the offense and that appellant acted with intent to promote or assist in the commission of the aggravated robbery. The evidence presented shows that, minutes after the police arrived at the scene, Khan identified appellant as one of the men who robbed him. Khan testified that appellant was the first to knock on his car window with a gun and that both appellant and Guillory demanded money from him. When Khan told the men that he had no money, he explained that both men threatened to kill him if he was lying. He testified that appellant stood at the front door of his apartment while he and Guillory went back to his bedroom. Khan stated that, once he and the two men got into his car, appellant instructed him to turn into the bank parking lot. He also testified that appellant brandished his gun a couple of times during the commission of the robbery.
Officer Hendrie testified that appellant and Guillory were in Khan’s car when he and his fellow officers arrived at the bank. He testified that two guns were recovered from Khan’s car; one under the passenger seat where Guillory was sitting and one under the back seat where appellant had been sitting. A jury could have reasonably believed that the gun under appellant’s seat belonged to him and was used by him to threaten Khan during the commission of the robbery. See King, 29 S.W.3d at 562.
Appellant testified that he accompanied Guillory and Khan into Khan’s apartment. He said that he did not follow them into Khan’s bedroom because he was not sure what they were going back to the bedroom to do. Under the law of parties, a jury could reasonably infer that appellant “assisted” Guillory by standing guard at the apartment door while Guillory was attempting to steal from Khan. Appellant testified that he initially thought Guillory was trying to collect a debt from Khan. He admitted that he realized Guillory was robbing Khan once he saw Guillory point a gun to Khan’s neck and demand the correct PIN. Appellant testified that he saw Guillory make several attempts to withdraw money from the bank ATM with Khan’s bank card and PIN.
Viewing all of the evidence in the light most favorable to the verdict, we conclude that a rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. See King, 29 S.W.3d at 562. Viewing the evidence in a neutral light, we also conclude that the evidence supporting appellant's conviction is not too weak to support the finding of guilt beyond a reasonable doubt; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. See Escamilla, 143 S.W.3d at 817. We hold that the evidence is both legally and factually sufficient to support appellant’s conviction.
We overrule appellant’s second, third, fourth, and fifth points of error.
Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.
Do not publish. Tex. R. App. P. 47.4.