Opinion issued March 11, 2010
In The
Court of Appeals
For The
First District of Texas
NO. 01–08–00247–CR
NO. 01–08–00248–CR
MIGUEL ANGEL GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause Nos. 1157987, 1121982
MEMORANDUM OPINION
Under Texas Rule of Appellate Procedure 50, we withdraw our opinion and judgment dated January 14, 2010, and substitute the following opinion and judgment in their place. See Tex. R. App. P. 50.
Following a joint trial on two indictments, a jury found appellant, Miguel Angel Garcia, guilty of the offense of aggravated robbery. See Tex. Penal Code Ann. §§ 29.02 (a) (2), 29.03 (a) (2) (Vernon 2003). Appellant pleaded “true” to the felony enhancement, and the jury found the enhancement true. The jury assessed punishment at 30 years’ confinement in cause number 1121982 and 20 years’ confinement in cause number 1157987, to run concurrently. The trial court entered an affirmative finding on the use or exhibition of a deadly weapon.
In cause number 1121982, appellant presents seven points of error. In his first and second points, appellant contends that the trial court erred by admitting certain hearsay testimony. In his third through fifth points, appellant contends that the trial court erred by instructing the jury that it must unanimously agree to acquit appellant of aggravated robbery before considering his guilt on the lesser-included offenses. In his sixth point, appellant contends that the trial court erred by overruling his objection to the State’s references to punishment issues in its closing argument. In his seventh point, appellant contends that the trial court erred by entering an affirmative finding as to the use of a deadly weapon.
In cause number 1157987, appellant presents ten points of error. In his first and second points of error, appellant contends that the trial court erred by admitting certain hearsay testimony. In his third and fourth points, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. In his fifth through seventh points, appellant contends that the trial court erred by instructing the jury that it must unanimously agree to acquit appellant of aggravated robbery before considering his guilt on the lesser-included offenses. In his eighth point, appellant contends that the trial court erred by overruling his objection to the State’s references to punishment issues in its closing argument. In his ninth point, appellant contends that the judgment, which reflects that he was assessed 30 years’ confinement in cause number 1157987, must be reformed to match the jury’s verdict form and the oral pronouncement of the trial court, which reflect that he was assessed 20 years’ confinement. In his tenth point, appellant contends that the trial court erred by entering an affirmative finding as to the use of a deadly weapon.
We reform the judgment of the trial court and affirm as reformed.
BackgroundShortly after midnight on December 10, 2006, the complainants, Alberto Martinez and Patricia Serrano, were at the Tequila Sunrise Bar and had stepped outside so that Patricia could remove her painful shoes. Patricia sat down on the passenger seat of Alberto’s truck, which was parked near the front door of the club, and Alberto stood in the open passenger-side doorway, helping Patricia.
Patricia testified that she heard a car stop quickly on the gravel nearby, but she did not look up. Moments later, two Hispanic men appeared behind Alberto, one holding a firearm and one holding a knife. Patricia noticed that one of the men was clearly older than the other, but she could not remember which one held the gun and which held the knife. The gun was black in color. Patricia testified that “they” said, in Spanish, to “give them the wallet, give them the money.” Patricia also testified that she heard, “Give me your wallet, give me your money, whatever you have.”
Patricia testified that she saw “them” take Alberto’s wallet and that they took his truck keys. One of the men “pulled Alberto from the truck and pulled him down” to the ground and “struck” Alberto. The other man held the gun in Patricia’s face. Patricia testified that she was afraid for her life. She then saw a police officer drive into the parking lot, and the two men ran away in different directions.
Officer C.M. Holloway of the Houston Police Department (“HPD”) was on patrol in the area at the time of the incident. As he was driving by the club with his window down, he heard an argument occurring in the parking lot. As he drove into the parking lot, he saw two men beating another man, and a woman standing nearby, looking down on what was happening. Officer Holloway testified that the men were Hispanic and that one was clearly older than the other. Officer Holloway radioed for backup, giving a description of the tattoos and clothing he saw on the older man. He then turned on his overhead lights, and the two men ran away in different directions. Officer Holloway chased and caught the younger man, who was later identified as Cipriano Roman. Officer Holloway placed him in custody and put him in the back seat of the police car.
Moments later, the older Hispanic man, later identified as appellant, appeared. He approached Officer Holloway and told him that he had just been “chasing the bad guys” down the street. Appellant was breathing hard, nervous, and sweating profusely. Appellant said that “two black” men had robbed a couple in the parking lot and that he had chased after them. Officer Holloway recognized appellant as the second man he had seen beating up Alberto. Appellant pointed as he spoke, and Officer Holloway noticed that appellant’s knuckles were bloody, like he had been in a fight. Officer Holloway took appellant into custody.
Another HPD officer, also named C.M. Holloway, arrived at the scene to assist. Officer Holloway searched the area in which Roman was apprehended and recovered a loaded firearm. At trial, Officer Holloway identified the weapon as a .45-caliber Colt 911.
HPD Investigator L. Lovelace interviewed Roman. Investigator Lovelace testified that Roman said that, on the night of the incident, he and appellant, who is his uncle, had been driving around and passed by the club. They saw two people standing outside, and appellant said, “Hey, what do you think, C.J., let’s go get them.” They drove into the parking lot, and appellant got out of the car with a knife and approached the people. Roman said that appellant began struggling with the man, so Roman got out. Roman heard appellant tell “them” to give him money. Roman said that he grabbed a pistol from the car, but the police came and he ran away. Roman said that the gun belonged to appellant.
Investigator Lovelace conducted a videotaped interview of appellant, which was admitted at trial. During the interview, appellant said that, on the night of the incident, he and his nephew, whom he calls “C.J.,” were driving around and decided to go to the club. The two men were in appellant’s wife’s car. Appellant drove into the parking lot and spoke with a security guard, who told them they would have to park across the street. Appellant saw a couple, Alberto and Patricia, at a truck parked by the front door. Appellant asked them if they were about to leave, and the man got angry. Roman got out and got into a fight with the man, so appellant grabbed the gun and tried to knock the man down.
Alberto was transported by emergency medical personnel to Memorial Hermann Hospital. His medical records were admitted into evidence. The records reflect that Alberto was presented at the hospital as having been “hit in head and face multiple times with butt of gun” and that he had lost consciousness. Alberto was treated for “scalp and facial contusions/abrasions” and released later that day.
The jury was instructed that it could find appellant guilty either as the primary actor or as a party. The jury convicted appellant, in cause number 1121982, of the aggravated robbery of Alberto and, in cause number 1157987, of the aggravated robbery of Patricia.
Sufficiency of the Evidence
In his third and fourth points of error in cause number 1157987, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for the aggravated robbery of Patricia.A. Standard of Review
We review the legal sufficiency of the evidence by considering all of 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. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). “We may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder.” Id. We give deference to the responsibility of the factfinder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts. Id. “Our duty is to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged.” Id.
We begin our factual sufficiency review with the assumption that the evidence is legally sufficient. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). Evidence that is legally sufficient, however, can be deemed factually insufficient if (1) the evidence supporting the conviction is “too weak” to support the factfinder’s verdict or (2) considering conflicting evidence, the factfinder’s verdict is “against the great weight and preponderance of the evidence.” Id. We consider all of the evidence in a neutral light, as opposed to in a light most favorable to the verdict. Id. We recognize that the factfinder is in the best position to evaluate the credibility of witnesses, and we afford due deference to the factfinder’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). We may only find the evidence factually insufficient when necessary to “prevent manifest injustice.” Laster, 275 S.W.3d at 518. In such case, we must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict. Id.
B. The Law
A person commits the offense of robbery if, in the course of committing theft and with the intent to obtain or maintain control of the 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)(2), 31.03 (Vernon 2003 & Supp. 2009). A robbery is aggravated if, inter alia, the person uses or exhibits a deadly weapon. Id. § 29.03(a)(2). A firearm is, per se, a deadly weapon. Tex. Penal Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2009).
“A person is criminally responsible as a party to an offense if the offense is committed by his conduct, by the conduct of another for which he is criminally responsible, or by both.” Tex. Penal Code Ann. § 7.01 (Vernon 2003). A person is criminally responsible for an offense committed by the conduct of 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. Id. § 7.02(a)(2). In determining whether the accused acted as a party, we may consider events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and a common design to commit the prohibited act. Payne v. State, 194 S.W.3d 689, 694 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). Circumstantial evidence may be sufficient to establish a defendant’s guilt as a party to an offense. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006).
C. Legal Sufficiency
The State presented evidence that appellant committed an aggravated robbery of Patricia. See Tex. Penal Code Ann. § 29.03(a)(2).
The State presented appellant’s videotaped interview, during which he said that he and Roman were at the club at the time of the incident, that they approached Alberto and Patricia, and that there was a confrontation. The State also presented the testimony of Investigator Lovelace, who said that Roman told him that he and appellant were driving around and passed by the club. They saw two people standing outside and appellant said, “Hey, what do you think, C.J., let’s go get them.”
Patricia testified that two Hispanic men, later identified as appellant and Roman, approached her and Alberto. One of the men was holding a firearm and one was holding a knife. Patricia testified that “they” said, in Spanish, to “give them the wallet, give them the money.” Patricia also testified that one of them said, “Give me your wallet, give me your money, whatever you have.” Patricia saw “them” take Alberto’s wallet and reported that “they” took his truck keys. Investigator Lovelace also testified that Roman said that he heard appellant tell “them” to give him money. From this evidence, the jury could have reasonably concluded that appellant was in the course of committing theft and that he acted with the intent to obtain or maintain control of Patricia’s and Alberto’s property. See Tex. Penal Code Ann. § 31.03.
Patricia also testified that one of the men “pulled Alberto from the truck and pulled him down” to the ground and struck Alberto, while the other man held a gun to Patricia’s face. Patricia testified that she feared imminent injury or death. Through his videotaped interview, appellant admitted that he grabbed a gun and tried to knock Alberto down. From this evidence, the jury could have reasonably concluded that appellant intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death and appellant used or exhibited a deadly weapon. See Tex. Penal Code Ann. §§ 1.07(a)(17)(A), 29.02(a)(2), 29.03(a)(2).
Officer Holloway’s testimony supported that of Patricia. Officer Holloway testified that, as he drove into the parking lot of the club, he saw two men, later identified as appellant and Roman, beating another man, later identified as Alberto, and saw a woman, later identified as Patricia, standing nearby. Officer Holloway turned on his overhead lights, and the two men ran away in different directions. Officer Holloway chased and caught Roman. Moments later, appellant appeared and Officer Holloway recognized him from his tattoos and clothing as the second man he had seen beating up Alberto. Appellant was breathing hard, nervous, and sweating profusely, and Officer Holloway noticed that appellant’s knuckles were bloody, like he had been in a fight. A subsequent search of the area yielded a loaded firearm in close proximity to where Roman had been apprehended.
Considering all the evidence in a light that supports the verdict, the jury could have reasonably concluded that appellant committed an aggravated robbery of Patricia and that he used or exhibited a deadly weapon, namely, a firearm. See Tex. Penal Code Ann. §§ 1.07, 29.03(a)(2). Further, the jury was authorized to convict appellant as the primary actor or as a party. See Tex. Penal Code Ann. §§ 7.01, 7.02. We hold that the evidence is legally sufficient to support appellant’s conviction in cause number 1157987. See Williams, 235 S.W.3d at 750.
Appellant contends that “[t]he evidence supports a conviction for aggravated assault with a deadly weapon against Patricia Serrano, but it is legally insufficient to support a conviction for aggravated robbery” because “[t]he only demand was for property belonging to another person, Alberto Martinez” and that “[n]o one demanded or tried to obtain any property belonging to Patricia Serrano.”
The evidence shows the contrary. Patricia testified that appellant and Roman approached her and Alberto, that one held a gun and the other held a knife, and that “they” said, “Give me you wallet, give me your money, whatever you have.” From this evidence, the jury could have reasonably concluded that appellant demanded property from both Patricia and Alberto. Moreover, a specific verbal demand from Patricia alone was not required. See Johnson v. State, 541 S.W.2d 185, 187 (Tex. Crim. App. 1976) (explaining that “a specific verbal demand is not the talisman of an intent to steal”; rather, intent may be inferred from conduct). Further, although Patricia testified that nothing was stolen directly from her, a completed theft is not required to support a conviction for aggravated robbery. See Tex. Penal Code Ann. § 29.01 (Vernon 2003) (defining that “in the course of committing theft” includes attempt to commit theft); Autry v. State, 626 S.W.2d 758, 762 (Tex. Crim. App. 1982) (stating that “actual commission of offense of theft is not a prerequisite to the commission of the offense of robbery”).
D. Factual Sufficiency
As discussed above, the State presented appellant’s videotaped interview, during which he admitted that he and Roman were at the club at the time of the incident, that they approached Alberto and Patricia, and that there was a confrontation. Investigator Lovelace testified that Roman said that he and appellant were driving around and passed by the club when they saw two people standing outside and appellant said, “Hey, what do you think, C.J., let’s go get them.” Patricia testified that two Hispanic men, later identified as appellant and Roman, approached her and Alberto; one of the men was holding a firearm; and “they” said, in Spanish, to “give them the wallet, give them the money.” Patricia saw “them” take Alberto’s wallet and said that “they” took his truck keys. Investigator Lovelace also testified that Roman said that he heard appellant tell “them” to give him money.
Patricia also testified that one of the men “pulled Alberto from the truck and pulled him down” to the ground and struck Alberto, while the other man held a gun to Patricia’s face. Patricia also testified that she feared imminent injury or death. Appellant admitted that he had grabbed a gun from the car.
In conducting a factual sufficiency review, we must consider the most important evidence that the appellant claims undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Here, appellant contends that “[t]he only evidence to support a conviction for aggravated robbery was the testimony of the complaining witness, Patricia Serrano, which shows that there was no attempt to steal any property from her.”
Again, there is evidence to the contrary. Patricia testified that appellant and Roman approached her and Alberto, that one held a gun and the other held a knife, and that “they” said, “Give me you wallet, give me your money, whatever you have.” From this evidence, the jury could have reasonably concluded that appellant demanded property from both Patricia and Alberto. See Johnson, 541 S.W.2d at 187. As the sole judge of the facts, the jury was free to believe all, some, or none of the testimony offered. See Cain, 958 S.W.2d at 407 n.5; Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d.). It is the within the province of the jury to determine what weight to afford the evidence. See Marshall, 210 S.W.3d at 625; Jaggers, 125 S.W.3d at 672.
After reviewing all of the evidence in a neutral light, we cannot conclude that the evidence is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict is against the great weight and preponderance of the evidence. Laster, 275 S.W.3d at 518. We hold that the evidence is factually sufficient to support appellant’s conviction.
Accordingly, we overrule appellant’s third and fourth points of error in cause number 1157987.
Hearsay
In his first and second points of error in both cause numbers, appellant contends that the trial court erred by admitting, over his objection, certain hearsay testimony by Officer Lovelace.
A. Standard of Review and Guiding Legal Principles
We review a trial court’s ruling on the admissibility of testimony for an abuse of discretion. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001). We will uphold the trial court’s decision unless it lies outside the zone of reasonable disagreement. Id. We give almost total deference to the trial court’s determination of historical facts that are supported by the record, especially when those findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
Hearsay is “a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex. R. Evid. 801(d). Hearsay statements are inadmissible except as provided by statute or other rule. Tex. R. Evid. 802; see Tex. R. Evid. 803 (providing exceptions). An extrajudicial statement that is offered for the purpose of showing what was said rather than for proving the truth of the matter stated therein, does not constitute hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Gonzales v. State, 190 S.W.3d 125, 133–34 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
The erroneous admission of a hearsay statement constitutes non-constitutional error that is subject to a harm analysis. See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Non-constitutional error must be disregarded unless it affected a substantial right of the defendant. Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). A substantial right is affected when the error had a substantial and injurious effect in determining the verdict. Johnson, 43 S.W.3d at 4. A conviction should not be overturned for such error if this court, after examining the record as a whole, has fair assurance that the error did not influence the trial court or had but a slight effect. See id.
B. Analysis
In his first point of error, appellant complains that the videotape “recorded interview of appellant includes statements by Cipriano Roman which incriminated appellant” and constituted inadmissible hearsay. In his second point of error, appellant contends that Officer Lovelace’s testimony from his own recollection of his interview of Roman constituted inadmissible hearsay.
Prior to trial, appellant sought to suppress any “Statements of the Defendant to any law officer.” (Emphasis added.) At a hearing on the motion, the videotaped interview of appellant was played. In the interview, Officer Lovelace told appellant that Roman had said that the gun belonged to appellant, that it was in appellant’s car, and that appellant had a knife. Appellant objected as follows, “As to the hearsay statements contained with[in] the tape, Your Honor, in dealing with what the co-defendant told this officer. I would object to those statements coming in.” The State argued that the statements constituted admissions by a party opponent. The trial court ruled that the statements were admissible.
Later, at trial, in conjunction with the videotape being published to the jury, appellant again objected, on the basis of hearsay, to the admission of Roman’s statements incriminating appellant that came in through the videotaped interview of appellant. The objection was overruled.
A statement is not hearsay if it constitutes an admission by a party opponent, that is, stated generally, if it is offered against a party and is the party’s own statement, a statement of which the party has manifested an adoption of its truth, a statement by a person authorized by the party to make a statement concerning the subject, a statement by the party’s agent, or a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. Tex. R. Evid. 801(e)(2). Here, the statements by Investigator Lovelace to appellant, made during the videotaped interview, indicating that Roman had implicated appellant as having owned the gun, having carried it in his car, and having held a knife during the confrontation at issue, do not fall under any of the provisions of Rule 801(e)(2). The statements are not admissions by a party opponent. Cf. Rodela v. State, 829 S.W.2d 845, 847–50 (Tex. App.—Houston [1st Dist] 1992, pet. ref’d) (holding that witness could testify about statements made to him by police department investigator because the statements were admissions by party-opponent and were thus not excluded by hearsay rule). Hence, the trial court abused its discretion by admitting those portions of the videotape.
Having determined that error occurred, the next step is to assess whether harm resulted. See Tex. R. App. P. 44.2(b); Johnson, 43 S.W.3d at 4. Here, the same facts at issue were later placed before the jury through Investigator Lovelace’s testimony concerning his own recollection of his interview with Roman. Investigator Lovelace testified that Roman said that appellant suggested that they rob Alberto and Patricia; that appellant got out of the car with a knife and approached them; that appellant asked Alberto for money; and that the pistol belonged to appellant. The record does not reflect that appellant objected to this testimony.
Hence, appellant was not harmed by the erroneous admission of hearsay through the videotaped interview, because the same evidence came in during subsequent testimony by Investigator Lovelace. See Tex. R. App. P. 44.2(b)(providing that non-constitutional error not affecting substantial right must be disregarded); Johnson, 43 S.W.23d at 4 (stating that substantial right is affected when error has substantial and injurious effect or influence in determining jury’s verdict); Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
Further, because appellant failed to object during Officer Lovelace’s testimony concerning his own recollection of the interview, appellant’s second point of error, which concerns that testimony, was not preserved for our review. See Tex. R. App. P. 33.1.
Accordingly, we overrule appellant’s first and second points of error in cause numbers 1157987 and 1121982.
Jury Instruction
In his fifth through seventh points in cause number 1157987 and his third through fifth points in cause number 1121982, appellant contends that the trial court erred by instructing the jury that it must unanimously agree to acquit appellant of aggravated robbery before considering his guilt on the lesser-included offenses.
A claim that there was error in the jury charge is reviewed using the procedure set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The first step is to determine whether there is error in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If there is error and appellant objected to the error at trial, reversal is required if the error “is calculated to injure the rights of the defendant,” which we have defined to mean that there is “some harm.” Id. (explaining Almanza, 686 S.W.2d at 171). If not objected to, the error must be “fundamental” and it requires reversal occurs only if it was so egregious and created such harm that the defendant “has not had a fair and impartial trial.” Id.
Here, in the jury charge, after the definition and application paragraphs concerning the offense of aggravated robbery, the jury was instructed as follows:
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of aggravated robbery and next consider whether the defendant is guilty of the lesser offense of aggravated assault.
After the definition and application paragraphs concerning the offense of aggravated assault, the jury was instructed as follows:
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of aggravated assault and next consider whether the defendant is guilty of the offense of robbery.
After the application paragraphs concerning the offense of robbery, the jury was instructed as follows:
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of robbery and next consider whether the defendant is guilty of the lesser offense of assault.The record does not reflect that appellant objected to the jury charge at trial.
On appeal, appellant complains that the “instruction requiring that the jury unanimously agree to find the accused ‘not guilty’ of the greater offense before it can even consider a lesser-included offense improperly impinges on the jury’s freedom of choice among greater and lesser offenses.”
In Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009), the court considered the same contention as appellant advances in this case, concerning a charge virtually identical to the one presented in this case.
In Barrios, the jury was instructed,
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of capital murder and next consider whether the defendant is guilty of robbery.
Id. at 349. The charge next instructed the jury on the elements of robbery and directed it to “acquit the defendant of robbery” unless it found from the evidence “beyond a reasonable doubt” that the defendant was guilty of robbery. Id. at 350.
On appeal to this court, the appellant argued that the trial court erred by instructing the jury that it must unanimously agree that he was not guilty of capital murder before it could consider the lesser-included offense of robbery. Id. We overruled his point of error, concluding that the instruction did not require the jury to unanimously agree on acquittal. Id. (citing Barrios v. State, No. 01-07-00099-CR, 2008 WL 1747738, at *1 (Tex. App.—Houston [1st Dist.] Apr. 17, 2008)). We concluded, rather, that the instruction allowed the jury to consider the charge as a whole and that it could consider the lesser-included offense before making a decision on the charged offense. Id. ( citing Barrios, 2008 WL 1747738, at *2).
The court of criminal appeals affirmed our judgment, holding that “the charge allowed the jury to consider the entire charge as a whole and that the complained-of instruction does not require the jury to unanimously agree that a defendant is not guilty of the greater offense before considering a lesser-included offense.” Id. at 353. The court held that there was no error in the charge. Id.
Here, as in Barrios, we conclude that the charge presented allowed the jury to consider the entire charge as a whole and that the complained-of instruction did not require the jury to unanimously agree that appellant was not guilty of the greater offense before considering a lesser-included offense. Hence, there is no error in the charge on this basis.
Accordingly, we overrule appellant’s fifth, sixth, and seventh points of error in cause number 1157987 and overrule his third, fourth, and fifth points of error in cause number 1121982.
Closing Argument
In his eighth point in cause number 1157987 and sixth point in cause number 1121982, appellant contends that the trial court erred by overruling his objection to the State’s references to punishment issues in its closing argument.
There are four permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000). An argument which exceeds these bounds is error; however, it only becomes subject to reversal if, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute or injects new facts, harmful to the accused, into the trial. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).
Here, the jury charge authorized the jury to convict appellant of aggravated robbery, aggravated assault, robbery, or assault.
Defense counsel argued in closing,
So with that I would ask you to find [appellant] not guilty. Not guilty of aggravated robbery, not guilty of aggravated assault, not guilty of robbery, not guilty of assault as it pertains to [Patricia] and perhaps the worst thing that he ever did was beat up Martinez to the ground [sic].
If you are going to find him guilty of anything, it should be of assault, which is the number four verdict on both of these charges. Thank you.
Appellant complains of the following emphasized language given by the State in its rebuttal to defense counsel’s closing argument:
[Defense counsel], with all [due] respect to him, I think he left a couple of holes out. And I will start kind of where he left off.
He got up here and told that based on that interview that [appellant] got out of the car to defend his nephew, to help his nephew who was being assaulted. That is what he got up here and told you to start with. That’s why he got out.
But now he’s telling you: Yeah, he did assault the guy . . . He’s saying: Yeah, he threw him down. He beat him up.
And he’s conceding you [sic] assault because he knows where that ranks on the punishment scale. So he’s conceding you of [sic] that, trying to make you look over here and watch this hand when the real story is over here.Appellant’s objection, which the trial court overruled, was as follows: “That’s outside the record, and there is no evidence as to [sic] dealing with the punishment phase.”
On appeal, appellant contends that it was improper for the State to “allude to, imply or discuss the ranges of punishment during the guilt-innocence state of a trial involving two or more offenses.” Appellant contends that this improper argument affected a substantial right, namely, to have guilt determined solely on the facts supporting guilt and not on the potential punishment.
As the State contends, it does not appear that appellant’s complaint on appeal comports with his objection at trial. An issue on appeal will not be considered if it varies from the objection made at trial. Moore v. State, 233 S.W.3d 32, 38 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim. App. 1990).
Even if we conclude that appellant preserved this issue, however, it cannot be sustained.
It is improper to discuss ranges of punishment during the guilt-innocence stage of a trial involving two or more offenses because it encourages the jury to convict on the basis of the amount of punishment, rather than the facts supporting guilt. McClure v. State, 544 S.W.2d 390, 393 (Tex. Crim. App.1977). Appellant relies on Freeman v. State to support his contention that the State improperly discussed punishment ranges in this case. 985 S.W.2d 588,589 (Tex. App.—Beaumont 1999, pet. ref’d).
The State, in its closing argument in Freeman, informed the jury that the charge would contain an instruction on indecency with a child and explained the difference between that crime and aggravated sexual assault in relation to the case before them. Id. The State then said, “And what that means is that aggravated sexual assault of a child, we talked about the range from probation up to life. With indecency with a child, the punishment range would be from probation to 20 years.” Id. On appeal, the court found error and reversed. Id. at 590.
In the case before us, unlike Freeman, the State did not discuss any specific punishment ranges. We cannot conclude that the State’s comment concerning defense counsel’s recognition of where assault “ranks on the punishment scale” rises to a discussion concerning ranges of punishment. See Cifuentes v. State, 983 S.W.2d 891, 893–94 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); Cf. McLure, 544 S.W.2d at 393 (finding error where State, in closing, compared punishment ranges of greater and lesser offenses (murder and manslaughter) that were before jury, as follows, “I also asked if you could return a verdict of 99 years and you said you could. . . . You know the most you can get for involuntary manslaughter is 20 years?”).
Further, here, given the context in which the State’s comment was made (as a response to the argument of appellant’s counsel), we cannot conclude that the jury necessarily took it as a comment that they should assess appellant’s guilt based on punishment ranges rather than the facts. See Wesbrook, 29 S.W.3d at 115 (explaining that permissible area for jury argument is “answer to argument of opposing counsel”); McClure, 544 S.W.2d at 393 .
Accordingly, we overrule appellant’s eighth point of error in cause number 1157987 and his sixth point of error in cause number 1121982.
Reforming the Judgment
In his ninth point of error in cause number 1157987, appellant contends that the judgment must be reformed to match the jury’s verdict form and the oral pronouncement of the trial court. The State “concurs with appellant that the jury did assess only 20 years in cause number 1157987, as indicated by the written verdict form and the oral pronouncement of the Court.” The State joins appellant’s request.
An appellate court has the power to correct and reform a trial court judgment to make the record speak the truth when it has the necessary data and information to do so. Milczanowski v. State, 635 S.W.2d 445, 447 (Tex. Crim. App. 1983); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.); see also Tex. R. App. P. 43.2(b). When, as here, trial is by jury, the written verdict provides the basis for reforming an erroneous recitation in judgment and sentence. Milczanowski, 635 S.W.2d at 447.
Here, the written verdict shows that, in cause number 1157987, the jury assessed appellant’s punishment at 20 years’ confinement. In addition, the trial court orally prounced appellant’s sentence in cause number 1157987 as 20 years’ confinement. The trial court’s judgment, however, reflects that appellant was assessed 30 years’ confinement in cause number 1157987.
The State also points out, and the written verdict shows that, in cause number 1121982, the jury assessed appellant’s punishment at 30 years’ confinement. The trial court orally pronounced appellant’s sentence in cause number 1121982 as 30 years’ confinement. The trial court’s judgment, however, reflects that appellant was assessed 20 years’ confinement in cause number 1121982.
Accordingly, we reform the trial court’s judgment in cause number 1157987 to reflect that appellant was assessed 20 years’ confinement. We reform the trial court’s judgment in cause number 1121982 to reflect that appellant was assessed 30 years’ confinement.
Deadly Weapon Finding
In his tenth point of error in cause number 1157987 and his seventh point of error in cause number 1121982 and, appellant contends that the trial court erred by entering an affirmative finding as to the use of a deadly weapon, “because the jury did not expressly find that appellant personally used a firearm.”
In a jury trial, it is the mandatory duty of the trial court to enter a separate and specific deadly weapon finding in the judgment if the jury makes an affirmative finding that the defendant used or exhibited a deadly weapon, as defined in section 1.07 of the Penal Code, in the course of committing the offense charged or in immediate flight from the commission of the offense. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2009); see Tex. Penal Code Ann. § 1.07(17) (defining deadly weapon” as a firearm or “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury”). “Affirmative finding” means an “express determination” by the jury that a deadly weapon was actually used or exhibited during the commission of the offense. Id. A trial court may not enter an “implied” deadly weapon finding based solely upon its own assessment of the evidence and a general guilty verdict. Lafleur v. State, 106 S.W.3d 91, 94–95 (Tex. Crim. App. 2003).
When a jury is the fact-finder, an affirmative finding is made when (1) the indictment includes an allegation of a “deadly weapon” and the jury verdict reads “guilty as charged in the indictment”; (2) the indictment does not allege a “deadly” weapon, but the weapon alleged in the indictment is a deadly weapon per se and the verdict states that the defendant is guilty “as charged in the indictment”; or (3) the jury affirmatively answers a special issue on deadly weapon use. See id. at 95–96 & n.26.
Here, the indictment in cause number 1121982 alleged as follows:
[Defendant] . . . while in the course of committing theft of property owned by Alberto Martinez and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place Alberto Martinez in fear of imminent bodily injury and death, and the Defendant did then and there use and exhibit a deadly weapon, to-wit: a firearm.
The indictment in cause number 1157987 alleged as follows:
[Defendant] . . . while in the course of committing theft of property owned by Patricia Serrano and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place Patricia Serrano in fear of imminent bodily injury and death, and the Defendant did then and there use and exhibit a deadly weapon, to-wit: a knife.
It is further presented that, . . . [Defendant] . . . while in the course of committing theft of property owned by Patricia Serrano and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place Patricia Serrano in fear of imminent bodily injury and death, and the Defendant did then and there use and exhibit a deadly weapon, to-wit: a firearm.The charge to the jury included an instruction on the definition of a deadly weapon; an instruction that aggravated robbery involves the use of a deadly weapon; and an instruction that the jury could also find appellant guilty as a party. In each cause, the jury found appellant guilty of aggravated robbery “as charged in the indictment.”
Because the indictment specifically alleged the use of a “deadly weapon” and the jury’s verdict reads “guilty as charged in the indictment,” the affirmative finding was supported. See Lafleur, 106 S.W.3d at 94–96. Before the jury was authorized to find appellant guilty, even as a party, they first had to believe beyond a reasonable doubt that appellant knew that a deadly weapon would be used in the commission of the offense. See Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); Johnson v. State, 6 S.W.3d 709, 714 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). By its verdict, the jury necessarily made the factual finding to support the entry of an affirmative finding on the use or exhibition of a deadly weapon. Sarmiento, 93 S.W.3d at 570. Once the jury made the affirmative finding, the trial court was required to enter this finding in the judgment. See Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2).
Although appellant stated during his videotaped interview, which was admitted into evidence and played to the jury, that he took a gun out of the car and tried to knock Alberto down with it, appellant complains on appeal that the jury failed to find that he personally used or exhibited a deadly weapon. This court has held that, even without a special issue submitted to the jury requiring it to find the defendant personally used a deadly weapon, Code of Criminal Procedure article 42.12 allows an affirmative finding if the defendant is found guilty as a party to an offense alleging the use or exhibition of a deadly weapon. Johnson v. State, 6 S.W.3d 709, 714 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).
We conclude the trial court did not err when it entered an affirmative finding of a deadly weapon in the judgment.
Accordingly, we overrule appellant’s seventh point of error in cause number 1121982 and overrule his tenth point of error in cause number 1121982.
Conclusion
We reform the trial court’s judgment in cause number 1157987 to reflect that appellant was assessed 20 years’ confinement. We reform the trial court’s judgment in cause number 1121982 to reflect that appellant was assessed 30 years’ confinement. We affirm the judgment of the trial court in each cause number, as reformed.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. See Tex. R. App. P. 47.2(b).