NO. 12-06-00003-CR
NO. 12-06-00004-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
WILLIAM CHARLES DENTON, § APPEALS FROM THE 173RD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Appellant William Charles Denton was convicted by a jury of two counts of aggravated robbery and two counts of aggravated assault. Appellant raises sixteen issues on appeal. We affirm.
Background
Appellant lived with his mother at her residence in Gun Barrel City, Texas. The residence consisted of a mobile home with an attached shed in the backyard. Appellant lived in this shed, which was furnished and served as his bedroom. On March 15, 2005, Heather Foster and Nicholas Moore (“Moore”) went to Appellant’s shed to collect a debt owed to Moore from a previous sale of methamphetamine. While they were inside the shed, Foster and Moore were assaulted and robbed by Appellant and two other men.
Appellant was charged with two counts of aggravated assault and two counts of aggravated robbery. The jury found Appellant guilty on all counts and sentenced him to twenty years of imprisonment for each aggravated assault conviction and twenty-five years of imprisonment for each aggravated robbery conviction. This appeal followed.
Admission of Lay Opinion Testimony
In his second, third, and fourth issues, Appellant claims that the trial court abused its discretion by admitting the lay opinion testimony of Foster, Moore, and Israel Wainionpa, one of the robbers. Specifically, Appellant argues that the State failed to lay the proper predicate for admission of the testimony as required by Rule 701 of the Texas Rules of Evidence.
In his second issue, Appellant complains that the trial court erroneously admitted lay opinion testimony from Foster during a hearing, conducted outside the presence of the jury, on the admissibility of certain evidence. In making preliminary determinations about the admissibility of evidence, the trial court is not bound by the rules of evidence other than those related to privilege. Tex. R. Evid. 104(a). Therefore, the trial court was entitled to admit Foster’s lay opinion testimony at the preliminary hearing without the Rule 701 predicate being met. See id.
In his third and fourth issues, Appellant complains that the trial court erroneously admitted lay opinion testimony from Moore and Israel during the trial. Generally, in order for an appellant to argue on appeal that a trial court erred in allowing testimony, he must have preserved the error at trial by making a proper objection and securing a ruling on the objection. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); see also Tex. R. App. P. 33.1 (describing the necessary steps to preserve error in Texas courts). An objection is “proper” where counsel specifically states the basis for the objection or the particular ground is apparent from the context. Ethington, 819 S.W.2d at 858. Where a trial court refuses to rule on an objection, an objection to the refusal is sufficient to preserve error. Id.
At trial, Appellant’s only objections were that the testimony of Moore and Israel was speculation.1 Considering the overall context in which Appellant made his speculation objections, we conclude that the objections were not sufficiently specific to make the trial court aware of his complaint that the proper predicate had not been met for admission of the testimony. Therefore, Appellant failed to preserve error, if any. See id.
We overrule Appellant’s second, third, and fourth issues.
Admission of Hearsay Statements
In his fourteenth issue, Appellant argues that the trial court abused its discretion by admitting hearsay statements of Israel and Michael Wainionpa.
Rule 38.1(h) of the Texas Rules of Appellate Procedure provides that an appellate brief shall contain, among other things, “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” When an appellant does not adequately comply with Rule 38.1(h), nothing is presented for appellate review. See State v. Gonzalez, 855 S.W.2d 692, 697 (Tex. Crim. App. 1993); Nguyen v. State, 177 S.W.3d 659, 669 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d).
In addressing the issue before us, Appellant does not provide specific citations to the record indicating what particular testimony he complains of. His argument consists of only conclusory statements without any explanation of why this testimony was erroneously admitted or citation to authority. Because Appellant has failed to provide us with an adequate substantive analysis of this issue, he has presented nothing for our review. See id.
We overrule Appellant’s fourteenth issue.
Refusals to Grant a Mistrial
In his fifth through thirteenth issues, Appellant contends that the trial court abused its discretion by denying various requests for a mistrial based on “inadmissible and harmful hearsay testimony.”
Standard of Review
Whether the trial court erred in denying 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). A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). Absent an abuse of discretion, we do not reverse a trial court’s denial of a mistrial. Ladd, 3 S.W.3d at 567.
The granting of a mistrial is an extreme remedy for curing prejudice occurring during a trial. Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). A mistrial is required only when the improper evidence or testimony is “clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury.” Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999). A trial court should only grant a mistrial when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant. Bauder, 921 S.W.2d at 698.
A reviewing court looks to the facts of each case to determine whether a curative instruction is sufficient to cure prejudice from an improper question or answer. Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Crim. App. 1990). Ordinarily, a prompt instruction to disregard will cure any prejudicial effect associated with an improper question and answer. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). A reviewing court should presume the jury followed the trial court’s instructions to disregard improper testimony. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).
Discussion
Appellant identifies nine instances in which the trial court sustained Appellant’s hearsay objection to certain testimony and instructed the jury to disregard the testimony, but denied his motion for mistrial. Six of those instances occurred during Foster’s testimony (issues five through ten). Two others occurred during Moore’s testimony (issues eleven and twelve), and one during Sergeant Jerry Moore’s testimony (issue thirteen).
Issues Five Through Ten. During Foster’s testimony, the prosecutor asked her how she and Moore came to meet one another on the night of the robbery. Foster replied that she called Moore and that he agreed to “hang out and maybe drink a beer” with her. Although this was hearsay testimony, it merely provided background information about events that occurred before the assault and robbery of the victims. This testimony was not prejudicial because it did not relate to Appellant’s guilt or innocence. Therefore, any error resulting from the jury’s hearing Foster’s answer was harmless and an instruction to disregard was adequate. See Ovalle, 13 S.W.3d at 783.
Foster also testified about a conversation she heard during the robbery regarding the possibility that Moore might be wearing a concealed microphone. She stated that she did not know who was involved in the conversation and that she did not understand what the unidentified declarants were talking about. By the time this testimony was elicited, other testimony about the substance of the conversation had been admitted into evidence without objection. Any error that resulted from the jury’s hearing the testimony was harmless. See Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986).
Foster further testified that she was strip searched during the robbery, and the prosecutor asked whether Appellant made any additional demands of her after the search. Foster responded that she was asked to put her belongings on the floor. The prosecutor then asked if Appellant made that request, and Foster stated that she could not recall who made the request. Foster’s testimony that she could not recall the identity of the declarant was beneficial to Appellant because it undermined her previous testimony that Appellant was the declarant. Consequently, any error that resulted from the jury’s hearing the testimony was harmless. See id.
At another point in her testimony, the prosecutor asked Foster if she knew how much money Moore had on his person when he was robbed. Foster responded that Moore told her afterward that he had approximately $400. Moore later testified that he was robbed of approximately $400. Any error that resulted from the jury’s hearing Foster’s testimony was harmless. See id.
In response to further questioning by the prosecutor, Foster testified that she removed her watch and placed it on the floor because she had been ordered to take off anything of value. Appellant did not object to this testimony. The prosecutor asked who gave the order, and Foster responded that she did not recall. Appellant then made a hearsay objection. Testimony was already in the record that the victims were requested to hand over their belongings. Any error that resulted from the jury’s hearing Foster’s testimony was harmless. See id.
Issues Eleven and Twelve. Moore testified that he was ordered at one point or another by “pretty much” all three of the robbers to remove and relinquish his possessions. As to Appellant, a statement of this type was an admission by a party opponent and not hearsay. See Tex. R. Evid. 801(e)(2)(A). Any such statements made by the other two robbers were statements made by a co-conspirator in the course and in furtherance of the conspiracy. See Tex. R. Evid. 801(e)(2)(E). Appellant argues that Moore’s failure to identify the actual declarants by name renders his testimony inadmissible hearsay. We disagree. When a hearsay objection is made and there is evidence that an unidentified declarant is a member of a class whose statements would have fallen within a hearsay exception, the failure of a witness to specifically identify that declarant by name affects only the weight and credibility of the testimony and not its admissibility. See Wal-Mart Stores, Inc. v. Berry, 833 S.W.2d 587, 593 (Tex. App.–Texarkana 1992, writ denied). Therefore, Appellant’s hearsay objection to this testimony was not valid. See id. A mistrial is not warranted where the conduct complained of is not actually objectionable conduct. See Bauder, 921 S.W.2d at 698.
Issue Thirteen. Sergeant Jerry Moore of the Gun Barrel City Police Department was the lead investigator in the case. The prosecutor asked whether Sergeant Moore’s acquisition of a written statement from Israel changed the course of his investigation. Sergeant Moore responded that it did not. In addressing this issue, Appellant’s argument consists of only conclusory statements without any explanation of why this testimony required a mistrial and without any citation to authority. Therefore, Appellant has presented nothing for our review. See Gonzalez, 855 S.W.2d at 697.
Conclusion. The statements that were properly presented by Appellant for our review can be divided into two categories: (1) statements that were hearsay but were also harmless and (2) statements that either were not hearsay or fall within an exception to the hearsay rule. Therefore, the trial court did not abuse its discretion in denying Appellant’s motions for mistrial. See Bauder, 921 S.W.2d at 698. Appellant also claims that these nine issues, when viewed together, show a pattern of questions and answers that, by neglect or attempt, unduly and improperly influenced the jury. From our review of the record, we conclude that no such pattern exists. We overrule Appellant’s fifth through thirteenth issues.
Admission of Four Handguns
In his fifteenth issue, Appellant claims that the trial court abused its discretion by admitting two handguns and by failing to instruct the jury regarding two other handguns that were admitted and subsequently stricken.
Standard of Review
Whether a trial court erred in admitting evidence is reviewed under an abuse of discretion standard. Osbourne v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). Absent an abuse of discretion, we do not reverse a trial court’s decision to admit evidence. Id. If evidence exists supporting the trial court’s decision to admit evidence, there is no abuse of discretion. Id. at 538. Further, we should not reverse a conviction for the erroneous admission of evidence if after examining the record as a whole, we have fair assurance that the error did not influence the jury, or had but a slight effect. Cobb v. State, 85 S.W.3d 258, 272 (Tex. Crim. App. 2002); see also Tex. R. App. P. 44.2 (defining reversible error in criminal appeals).
Discussion
The four handguns in question, marked as State’s Exhibits 22, 23, 24, and 25, were seized pursuant to a search warrant. These four handguns were admitted into evidence over Appellant’s objections of relevance and unfair prejudice.
Following the admission of the four handguns, Sergeant Jerry Moore testified that Exhibit 23 had actually been seized from the mobile home situated near Appellant’s shed. In response to this testimony, the trial court struck Exhibit 23. A hearing was held outside the presence of the jury regarding the remaining three handguns, at which Sergeant Moore testified that Exhibit 22 had also been seized from the mobile home. After the hearing, the trial court struck Exhibit 22 in front of the jury.
Appellant claims that the trial court erred in failing to give any instructions to the jury once the two exhibits had been stricken from the evidence. The record, however, shows that the trial court did, in fact, instruct the jury to disregard each exhibit after striking it. The omissions Appellant complains of did not occur.
Appellant also argues that Exhibits 24 and 25, found in Appellant’s shed, should have been excluded because they were not relevant and were unfairly prejudicial. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Foster, Nicholas Moore, and Israel all had differing descriptions of the handguns used by the robbers. There was testimony that a semi-automatic handgun was used by at least one robber (Exhibit 24 is a semi-automatic handgun). Likewise, there was testimony that a revolver was used by at least one robber (Exhibit 25 is a revolver). Sergeant Jerry Moore testified that he had been unable to determine whether or not these two handguns were used in the robbery. While these two handguns may not have actually been used in the robbery, they tend to make it more probable that Appellant was able to arm himself, Israel, and Michael on the night in question. Therefore, these two handguns were relevant to the jury’s determination of Appellant’s guilt. See Tex. R. Evid. 401.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. By the time these handguns were admitted, Sergeant Jerry Moore had testified, without objection, about his seizing the handguns from Appellant’s shed. Three witnesses had testified that Appellant was armed during the robbery. Nicholas Moore had testified that he had previously seen eight guns in Appellant’s shed and that all three of the handguns used during the robbery were Appellant’s. Appellant himself testified that he kept several guns in his shed and admitted to arming himself, Israel, and Michael with handguns he owned. In light of the record, we conclude that the admission of Exhibits 24 and 25 either did not influence the jury or had but a slight effect. See Cobb, 85 S.W.3d at 272; see also Tex. R. App. P. 44.2. Therefore, error, if any, in admitting Exhibits 24 and 25 was harmless. See id.
We overrule Appellant’s fifteenth issue.
Factual Sufficiency of Appellant’s Convictions
In his first issue, Appellant challenges the factual sufficiency of the evidence supporting his conviction.
Standard of Review
In conducting a factual sufficiency review of the evidence supporting 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). 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).
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. It is not enough that we might harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. See Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). 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). We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of the conflict. See Watson, 204 S.W.3d at 417.
Discussion
On Appellant’s two counts of aggravated assault, as charged in the indictments, the State had the burden to prove, beyond a reasonable doubt, that Appellant intentionally or knowingly threatened another with imminent bodily injury by exhibiting or using a firearm, a deadly weapon. See Tex. Penal Code Ann. § 22.02 (Vernon 2003). As to the two counts of aggravated robbery, as charged in the indictments, the State had the burden to prove, beyond a reasonable doubt, that Appellant, while in the course of committing theft,2 intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death by exhibiting or using a firearm, a deadly weapon. See id. § 29.03.
The evidence shows that, on March 18, 2005, Foster and Nicholas Moore were present in Appellant’s shed. Appellant, Israel, and Michael had handguns and Foster and Moore were unarmed. Michael stood near the door, blocking the shed’s only exit. Foster and Moore were told to be quiet and were strip searched. They were ordered to turn over their belongings. Foster acquiesced but Moore refused. Appellant fired a shot into a wall and Moore refused a second time. Michael shot Moore, and Moore complied. Foster and Moore were allowed to leave. Appellant escorted Moore out and warned him not to return. Appellant then ran from his residence, in the dark, to catch up to the other robbers. Michael disposed of the handgun Appellant had given him, and the three ran away in different directions. Foster’s and Moore’s possessions were never returned to them.
Appellant supplied all of the guns used in the robbery. The robbery took place in the shed where Appellant lived. During the robbery, Appellant told Foster and Moore to be quiet and also told them to strip. Israel testified that Appellant was a participant in the robbery, and Foster and Moore both testified that they believed they had been robbed by all three men.
Appellant testified that he was not a participant in the assault or robbery of Foster and Moore. He testified that he had armed himself out of fear and that he had fired a shot into the wall out of fear for his safety and that of Moore. He denied any intent to assault or rob the victims.
The jury could have chosen to believe Appellant’s version of the events. See Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1997). Likewise, the jury was entitled to disregard Appellant’s self-serving testimony in favor of the testimony of Foster, Moore, and Israel. See id. Also, the jury could have reasonably inferred from the evidence that Appellant had the requisite intent to commit the charged offenses. See Ortiz v. State, 930 S.W.2d 849, 852-53 (Tex. App.–Tyler 1996, no pet.). After a neutral review of all the evidence, both for and against the findings, we conclude that the proof of Appellant’s guilt is not so obviously weak as to undermine our confidence in the jury’s determination nor is it greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11.
We overrule Appellant’s first issue.
Refusal to Instruct the Jury on the Law of Self Defense
In his sixteenth issue, Appellant argues that the trial court erred by denying Appellant’s request that the jury be instructed on the law of self defense.
Standard of Review
“A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.” Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). On the other hand, if the evidence, viewed in the light most favorable to the defendant, does not establish self defense, the defendant is not entitled to an instruction on the issue. Id. Before we review the evidence, however, we must determine whether or not Appellant has preserved this issue for review. See Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998).
In criminal jury trials, the trial court must deliver “a written charge distinctly setting forth the law applicable to the case.” Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2006). A defendant must be given an opportunity to examine the charge and object to any errors of commission or omission. See id. Generally, a defendant must object to the trial court’s charge or submit special requested instructions in order to preserve error on appeal. See id.; Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon 2006). Objections must distinctly specify each ground upon which they are predicated. Id. art. 36.14. Objections and special requested instructions must be in writing or dictated to the court reporter. Id.; Tex. Code Crim. Proc. Ann. art. 36.15.
Where an appellant has properly preserved an issue for review, we must ascertain if error actually occurred. See Posey, 966 S.W.2d at 60. If error occurred and was properly preserved, reversal is required if the error was calculated to injure the rights of the defendant. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). In other words, an error that has been properly preserved will require reversal only if the error is not harmless. Id. We evaluate the issue of harm “in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Id.
Article 36.19 of the Texas Code of Criminal Procedure governs the appeal of charge errors. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006). Article 36.19 reads as follows:
Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless ... it appears from the record that the defendant has not had a fair and impartial trial. ....
A trial court’s disregard of a statutory provision referenced in article 36.19 is an omission that does not require a timely objection or request. Huizar v. State, 12 S.W.3d 479, 483 (Tex. Crim. App. 2000). Should such an error occur, we reverse only if the error is so egregious and created such a harm that the defendant has not had a fair and impartial trial. See Posey, 966 S.W.2d at 61 n.9; Almanza, 686 S.W.2d at 171. Once again, we evaluate the issue of harm “in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.
Discussion
At the charge conference, Appellant requested a “self-defense instruction” and an instruction regarding an individual’s right to arm himself while in his residence. Appellant did not specify whether the self defense instruction sought referred to self defense under section 9.31, 9.32, or 9.33 of the Texas Penal Code. Tex. Penal Code Ann. § 9.31 (Vernon 2003) (the use of force to protect oneself); id. § 9.32 (the use of deadly force to protect oneself); id. § 9.33 (the use of force or deadly force to protect another). Likewise, when asked by the trial court if he had any submissions, counsel for Appellant stated that “we would want the instructions that would normally be considered in those matters. I don’t have any submissions, Your Honor.” Because Appellant did not submit his requested self defense instruction in writing or dictate it into the record, he failed to preserve error, if any. See Tex. Code Crim. Proc. Ann. art. 36.15.
Even if we consider Appellant’s request as an objection to the charge, the result does not change. An objection merely seeking “instructions that would normally be considered” does not preserve error because it does not adequately specify the particular instruction desired. See Reece v. State, 683 S.W.2d 873, 874-75 (Tex. App.–Houston [14th Dist.] 1984, no pet.) (holding that “I would like to have the charge of self defense, standard form” was not specific enough to preserve error); see also Hutcheson v. State, 899 S.W.2d 39, 41-42 (Tex. App.–Amarillo 1995, pet. ref’d) (holding that merely asking for “a charge on self-defense,” without more, did not preserve error).
Because Appellant has failed to preserve error, if any, the only remaining question is whether the trial court disregarded a statutory provision referenced in article 36.19 by failing to include a self defense instruction in the charge. See Huizar, 12 S.W.3d at 483. The trial court was required to deliver a charge setting forth the “law applicable to the case” pursuant to article 36.14. Article 36.14 is one of the statutory provisions referenced in article 36.19. As such, were a self defense instruction part of the “law applicable to the case,” its omission would be reviewable pursuant to article 36.19. See Huizar, 12 S.W.3d at 483.
However, a defensive issue is not “law applicable to the case” absent a timely and adequate request for its inclusion, or objection to its omission, by the defendant. See Posey, 966 S.W.2d at 62. Here, Appellant did not adequately inform the trial court of the specific instruction sought. Thus self defense, a defensive issue, did not become “law applicable to the case.” See id. Accordingly, the article 36.19 exception to the general rule for error preservation does not apply. See id. Therefore, we have nothing to review.
We overrule Appellant’s sixteenth issue.
Disposition
We affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered March 7, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 This objection was overruled and has not been raised on appeal.
2 “Theft” is defined by Chapter 31 of the Texas Penal Code.