NO. 12-04-00286-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JIMMY DARRELL SMITH, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Jimmy Darrell Smith appeals his conviction for aggravated robbery with a deadly weapon, for which he was sentenced to imprisonment for 65 years. Appellant raises four issues on appeal. We affirm.
Background
On August 15, 2002, Andrew Hudson was working at a Dairy Queen restaurant in Lindale, Texas. As he and a coworker were closing the store, Hudson heard someone knock on the window at the front of the restaurant. When Hudson went to the door, he met a man wearing blue jeans and a blue long sleeved shirt. In a photo lineup and later at trial, Hudson identified the man he met at the door as Appellant, although Hudson admitted in his testimony that he did not get a very good look at the man’s face.
According to Hudson, Appellant told him that the soft drink he had purchased earlier tasted bad and asked for a replacement. Hudson took the drink to the fountain in the restaurant lobby to refill it, but when he returned, Appellant had gone. Moments later, Hudson was confronted by a man wearing an “old man” mask. According to Hudson, the man in the mask was wearing the same clothes as Appellant was wearing. Hudson further testified that the man in the mask had the same voice as Appellant.
Hudson stated that the man in the mask demanded that Hudson and his coworker, Kristie Ivey, give him money and the restaurant’s surveillance tape. Hudson testified that when Ivey argued with the man, he brandished a 9 millimeter pistol and struck her in the head with it. According to Hudson, the man in the mask then loaded a round into the chamber and pointed the gun at both him and Ivey. Ultimately, Hudson and Ivey gave the man a bag of money and the surveillance tape. The man then ordered Hudson and Ivey into the restaurant’s walk-in cooler. The two remained in the cooler briefly, but were able to free themselves by triggering an emergency release on the inside of the cooler. Hudson then called the police.
Over objection, the State offered testimony from Casey Melton, an employee at a Subway restaurant in Lindale. Melton testified that shortly after 10:00 p.m. on August 15, 2002, while he and his coworkers were closing the restaurant, a man Melton identified in court as Appellant knocked on the front door and claimed that the drink he had previously purchased from the restaurant tasted bad. Melton testified that Appellant was wearing a baseball cap, jeans, and a black or navy sweatshirt. Melton further testified that he told Appellant he could not let him enter the restaurant as they were closed, but that Appellant could come to the drive-thru window and have his drink refilled. Melton stated that soon thereafter, he heard one of his coworkers exclaim, “Sir, what are you doing? You can’t do that, sir.” Melton testified that he then saw Appellant climb into the restaurant by way of the drive-thru window.
Once inside, according to Melton, Appellant brandished a 9 millimeter pistol and demanded money from the restaurant’s register as well as the surveillance video tape. When Melton told Appellant that he did not have the key to the register, Appellant ordered Melton to take him to the manager’s office to search for the keys while Melton’s coworkers waited in the restaurant’s walk-in cooler. Melton testified that Appellant told him to look around the manager’s office for keys to the safe, which Melton did without success. Appellant saw the restaurant’s surveillance system and ordered Melton to eject the surveillance tape and give it to him. Melton complied. Thereafter, Appellant and Melton exited the manager’s office, at which time, Melton testified, Appellant donned an “old man” mask. Appellant continued to search the store in vain for money. Melton testified that ultimately, Appellant ordered him to get into the walk-in cooler with his coworkers. Melton entered the cooler and locked the door behind him. Melton stated that he and his coworkers remained in the cooler for between thirty and forty-five minutes before he exited the cooler and called the police. Later, in a photo lineup, Melton identified Appellant as the same man who had robbed the Subway restaurant.
Following the testimony of other witnesses, the State rested. Appellant moved for a directed verdict, which the court denied. The defense then rested its case without calling any witnesses. Ultimately, the jury found Appellant guilty as charged and assessed punishment at imprisonment for 65 years. The trial court sentenced Appellant accordingly, and this appeal followed.
Improper Jury Argument
In his first issue, Appellant argues that the trial court erred by denying his motion for mistrial concerning a statement the prosecutor made during jury argument. Specifically, the prosecutor stated, “Is there any doubt that this man had a firearm? Has there been any evidence to the contrary?”
It is well settled that a prosecutor cannot comment on a defendant’s failure to testify. Owen v. State, 656 S.W.2d 458, 459 (Tex. Crim. App. 1983). Such comments violate an accused’s right against self-incrimination contained in the Fifth Amendment to the United States Constitution and made applicable to the states through the Fourteenth Amendment. U.S. Const. Amend. V; Tex. Const. Art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005). Article 38.08 states as follows:
Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.
Tex. Code Crim. Proc. Ann. art. 38.08.
The prohibition applies to both direct and indirect references to the defendant’s failure to testify. De Los Santos v. State, 918 S.W.2d 565, 570 (Tex. App.–San Antonio 1996, no writ). The prejudicial effect of a direct comment on the defendant’s failure to testify often cannot be cured by an instruction to the jury to disregard. See Gardener v. State, 730 S.W.2d 675, 700 n.13 (Tex. Crim. App. 1987). For an indirect comment to constitute reversible error, it must call for a denial of an assertion of fact or contradictory evidence that only the defendant is in a position to offer. See Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992).
Thus, for example, when there is no testimony suggesting the defendant’s lack of remorse, a comment upon the lack of remorse would naturally and necessarily be one upon the defendant’s failure to testify because only a defendant can testify as to his own remorse. Id.; Dickinson v. State, 685 S.W.2d 320, 324 (Tex. Crim. App 1984). However, when there is evidence in the record indicating a lack of remorse, a comment upon the defendant’s lack of remorse does not naturally and necessarily lead the jury to understand it to be a comment upon the defendant’s failure to testify. See, e.g., Caldwell v. State, 818 S.W.2d 790, 800–01 (Tex. Crim. App. 1991), overruled on other grounds, Castillo v. State, 913 S.W.2d 529, 533 (Tex. Crim. App. 1995); Davis v. State, 782 S.W.2d 211, 222–23 (Tex. Crim. App. 1989).
In the case at hand, the prosecutor asked if there had been any evidence to contradict that Appellant had used a firearm. There were, at most, three witnesses to the Dairy Queen robbery who could have offered evidence as to whether or not a firearm was used during the commission of the robbery—Hudson, Ivey, and Appellant. Thus, the prosecutor’s statement did not call for a denial of an assertion of fact or contradictory evidence that only Appellant was in a position to offer. Therefore, we hold that the trial court did not err in overruling Appellant’s motion for mistrial as the prosecutor’s statement did not amount to a comment on Appellant’s failure to testify.
Appellant further argues that the prosecutor engaged in improper jury argument when he referred to Appellant as a “coward.” The trial court sustained Appellant’s objection and instructed the jury to disregard. Appellant did not move for a mistrial. As Appellant’s objection was sustained, and his request for instruction granted, it is unclear about what error, if any, Appellant complains. See Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003) (to preserve error, an objection must be timely, specific, and pursued to an adverse ruling). Moreover, almost any improper argument may be cured by an instruction to disregard. See Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995) (noting that the presumption that an instruction to disregard generally will not cure comment on failure of the accused to testify has been eroded to the point that it applies only to the most blatant examples). Appellant has cited no authority, nor are we aware of any such authority, holding that such a comment by a prosecutor could not be cured by an instruction or otherwise did not require a request for a mistrial to preserve error. Appellant’s first issue is overruled.
Extraneous Offense
In his second issue, Appellant argues that the trial court erroneously admitted evidence concerning an extraneous offense, the Subway robbery. Texas Rule of Evidence 404(b) states, in pertinent part, as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Here, the State sought to introduce evidence concerning the Subway robbery to prove identity. The theory of relevance is usually that of modus operandi in which the pattern and characteristics of the crimes are so distinctively similar that they constitute a signature. See Beets v. State, 767 S.W.2d 711, 740–41 (Tex. Crim. App. 1987) (noting the defendant’s “signature” use of the same weapon, the same motive, the same time of day, and the same means of disposing of bodies in two different murders). The permutations concerning similarities are endless, but in the final analysis, the court must be content that the evidence of both offenses is so distinct as to constitute a signature of the defendant. See Avila v. State, 18 S.W.3d 736, 741 (Tex. App.–San Antonio 2000, no pet.) (similarities common to the type of crime as opposed to peculiarities between offenses committed not enough to show identity).
The evidence concerning the Subway robbery contains enough similarities so as to constitute a signature. The two robberies were committed near in time on the same night. The testimony reflects that the perpetrator wore jeans and a dark colored long sleeve shirt. The testimony further reflects that the perpetrator in both robberies used a ruse about having purchased a drink that did not taste good so as to gain access to the restaurant. The testimony further reflects that the perpetrator wore a distinctive “old man” mask. Two Subway employees unequivocally identified Appellant as the man who robbed the Subway restaurant and further testified that Appellant did not put his mask on until the robbery was well underway.
Appellant nonetheless argues that the trial court improperly admitted the testimony concerning the Subway robbery because Hudson identified Appellant as the man who robbed the Dairy Queen. In other words, Appellant argues that the probative value of the testimony concerning the Subway robbery did not outweigh its prejudicial effect because Hudson’s identification was unequivocal and conclusive on the issue. See McGee v. State, 725 S.W.2d 362, 365 (Tex. App.–Houston [14th Dist.] 1987, no writ) (holding that since adequate evidence of the appellant’s intent had already been introduced, the inflammatory and prejudicial effect of the extraneous offense evidence outweighed any probative value it may have had).
However, the record reflects that Appellant called Hudson’s identification of Appellant into question during cross examination. When the State’s only identifying witness is impeached on cross examination, the issue of identity is raised, and the extraneous offense becomes admissible. Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985). Here, the record reflects that no one at the Dairy Queen saw the perpetrator’s face during the robbery inasmuch as he was wearing a mask throughout the robbery. Hudson’s identification is based on his interactions with the person who came to the front door just prior to the robbery. Hudson’s identification was based on recognition of the person’s (1) facial features, (2) voice, and (3) clothes. During cross examination, Hudson admitted that he did not get a good look at the man’s face. Moreover, Hudson admitted the mask the perpetrator was wearing covered his mouth and had no mouth hole, potentially impeaching Hudson’s identification of the perpetrator’s voice as being the same as Appellant’s. We hold that Appellant’s identity was at issue and the extraneous offense was properly admitted to prove identity. Appellant’s second issue is overruled.
Evidentiary Sufficiency
In Appellant’s third issue, he argues that the evidence is legally insufficient to support the jury’s verdict. In Appellant’s fourth issue, he challenges the factual sufficiency of the evidence. Appellant’s sufficiency challenge focuses solely on the evidence related to his identity.
Legal Sufficiency
Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury’s verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).
The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.” Id.
To support a conviction for aggravated robbery, the State must show, among other things, that the defendant is the same person who committed the offense. See Tex. Pen. Code Ann. §§ 7.01(a), 29.02, 29.03 (Vernon 2003).
In the case at hand, the record reflects that Hudson identified Appellant as the person who robbed the Dairy Queen on the night in question. Although the perpetrator wore a mask during the robbery, Hudson testified that it was the same person who had come to the front door of the restaurant claiming to have been served a soft drink that tasted bad, whom Hudson identified as Appellant. Hudson further testified that Appellant wore the same clothing and had the same voice as the person who, moments later, robbed the Dairy Queen.
Further, as discussed in detail above, Melton’s testimony concerning the Subway robbery is relevant to the issue of identity as it demonstrates a criminal signature. The two robberies were committed near in time on the same night. Melton’s testimony reflects that the perpetrator wore jeans and a dark colored long sleeve shirt, similar to what Hudson described as worn by the person who robbed the Dairy Queen. Melton’s testimony further reflects that Appellant used a ruse about having purchased a drink that did not taste good so as to gain access to the restaurant. The respective testimonies of Melton and his coworker further indicate that Appellant donned a distinctive “old man” mask. Both Melton and his coworker unequivocally identified Appellant as the man who robbed the Subway restaurant and further testified that Appellant did not put his mask on until the robbery was well underway.
Examining the aforementioned evidence in the light most favorable to the jury’s verdict, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant was the same person who committed the aggravated robbery of the Dairy Queen on the night in question. Therefore, we hold that the evidence was legally sufficient to support the jury’s verdict. Appellant’s third issue is overruled.
Factual Sufficiency
Turning to Appellant’s contention that the evidence is not factually sufficient to support the jury’s verdict, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the
weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.– El Paso 1996, pet. ref’d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
A verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.” Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); see Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury's finding “shocks the conscience,” or “clearly demonstrates bias.” Zuniga, 144 S.W.3d at 481.
As the court of criminal appeals explained in Zuniga, "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 its finding of guilt beyond a reasonable doubt?” See id. at 484.
In the case at hand, Appellant argues that Hudson’s identification of Appellant as the perpetrator is “so suspect that it cannot form the sole basis for conviction.” Yet, even assuming, as Appellant suggests, that Hudson’s testimony cannot alone support a conviction, Appellant fails to take into consideration the identity evidence concerning the Subway robbery.
We have reviewed the record in its entirety. We iterate that our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96.
Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury’s verdict. Appellant’s fourth issue is overruled.
Ineffective Assistance of Counsel
Appellant’s counsel notes in Appellant’s brief that Appellant wanted to raise the issue of ineffective assistance of counsel. However, Appellant’s counsel concedes that such an issue is without merit and notes that he will not raise meritless issues. We will consider this issue in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We have reviewed the record for reversible error related to ineffective assistance of counsel and have found none.
Disposition
Having overruled Appellant’s issues one, two, three, and four, we affirm the trial court’s judgment.
SAM GRIFFITH
Justice
Opinion delivered December 14, 2005.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)