Summary
finding that the defendant was not harmed by the trial court's failure to instruct on the lesser-included offense of theft when the jury sentenced him to twenty-seven and a half years rather than the fifteen year minimum
Summary of this case from Kossie v. ThalerOpinion
No. 05-05-00492-CR
Opinion Filed May 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-55062-MQ. Affirmed As Modified.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
OPINION
A jury convicted Antonio Martinez Campos of aggravated robbery and after finding the enhancement paragraph true, assessed punishment at twenty-seven years and six months in prison. In four issues, appellant contends the trial court erred in refusing to charge the jury on the lesser-included offenses of theft and robbery, permitting the State to impeach appellant regarding the details of his prior convictions, and placing the incorrect date on the judgment. We affirm the trial court's judgment as modified. Hector Ramirez testified that on the night of the offense, appellant approached him, aimed a gun at his head, demanded his wallet and keys, and then drove away in his car. As appellant was driving away, Juan Galvan, a security guard at the complex, stopped him because he was driving through the apartment complex at a high rate of speed. Galvan then stopped appellant's wife who was also speeding through the complex. In response to Galvan's questions, appellant's wife told Galvan her husband's name. At about the same time, Ramirez screamed his car had been stolen, so Galvan called 911. Officer Carlton Marshall responded to the call and drove to appellant's house. Marshall testified that when appellant arrived at the house, he jumped out of the car and started to run. Marshall chased appellant and arrested him. Ramirez's CD player, CDs, checks, and tools were missing from the car when it was returned to him. Appellant testified that his uncle, Johnny Gonzalez, drove him to an apartment complex to buy drugs. Appellant said he had used drugs throughout the night and was still under the influence of the drugs at the time of the offense. After he bought cocaine and heroin, appellant could not find Gonzalez but saw an empty car in the parking lot with the keys and a wallet inside. Appellant told the jury he was not carrying a gun and that he only briefly saw Ramirez as Ramirez was descending a flight of stairs. Eager to use the drugs he had just bought and seeing Gonzalez nowhere in sight, appellant drove away in the car. In issues one and two, appellant contends the trial court erred in denying his requested charges on the lesser-included offenses of theft and robbery. The trial court charged the jury on aggravated robbery and unauthorized use of a vehicle. A trial court should instruct the jury on a lesser-included offense if the lesser offense is included within the proof necessary to establish the offense charged, and there is some evidence in the record that would permit the jury to find the defendant guilty only of the lesser offense. Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App. 2004); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981). In determining whether the evidence raises the requested lesser-included offense, the court may not consider the credibility of the evidence or whether it conflicts with other evidence. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). If evidence from any source raises the issue of a lesser-included offense, an instruction on that offense must be included in the court's charge. Id. Whether the instruction should be submitted is determined on a case-by-case basis. Campbell, 149 S.W.3d at 152. In his first issue, appellant contends the trial court erred by denying his requested instruction on the lesser-included offense of theft. The indictment charging aggravated robbery stated that appellant took the property of Hector Ramirez at gunpoint. The evidence presented by the State supported only the theory that appellant took Ramirez's vehicle and its contents at gunpoint. When appellant testified, he told the jury he "didn't rob this dude at no gunpoint or nothing like that" but was "trying to get home to go do my dope and my uncle left me." He said, "I was just trying to get somewhere." A person commits unauthorized use of a vehicle if he intentionally or knowingly operates another's vehicle without the effective consent of the owner. See Tex. Pen. Code Ann. § 31.07 (Vernon 2003). A theft occurs when a person appropriates the property of another without that person's consent and with intent to deprive the owner of the property. See Tex. Pen. Code Ann. § 31.03 (Vernon Supp. 2005). The evidence presented by appellant comports with the offense of unauthorized use of a vehicle in that according to appellant, he used Ramirez's car to get home even though he did not have Ramirez's consent. However, assuming without deciding the trial court erred by not charging the jury on the offense of theft, we find the error harmless. The jury chose to convict appellant of the greater charge of aggravated robbery even though they had the option of convicting him of unauthorized use of a vehicle. Under the facts of this case, unauthorized use of a vehicle and theft were similar offenses. The jury's failure to find on the intervening lesser-included offense may, in some circumstances, render the failure to submit a lesser charge harmless. Masterson v. State, 155 S.W.3d 167, 171 (Tex.Crim.App. 2005). The harm from denying a lesser offense stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer. Id. Allowing the jury to consider convicting appellant of unauthorized use of a vehicle, being a plausible theory under the evidence and similar to the offense of theft, forecloses a finding of harm in the trial court's denial of the requested charge on theft. The jury's rejection of that offense indicates that they believed appellant was guilty of the greater offense. Id. Moreover, in convicting appellant on the charge of aggravated robbery, the jury was provided with a range of punishment of five years to ninety-nine years or life. Even after finding the enhancement paragraph true, the jury bypassed the minium of fifteen years and sentenced appellant to twenty-seven years and six months in prison. Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon Supp. 2005). The jury's sentence of over fifteen years beyond the minimum is indicative of its intent to punish appellant for having committed the aggravated robbery. We conclude any error was harmless and overrule the first issue. In his second issue, appellant contends he was entitled to an instruction on the lesser-included offense of robbery. The State's evidence supported only the theory that appellant used a gun during the offense. Appellant said he did not use a gun and had no contact with Ramirez. Neither the State nor appellant's evidence supports a charge that in the course of committing the theft, he threatened or placed another in fear of imminent bodily injury or death. See Tex. Pen. Code Ann. § 29.02 (Vernon 2003). No evidence supports the theory that appellant was guilty only of the lesser-included offense of robbery. We overrule appellant's second issue. In his third issue, appellant contends the trial court erred in allowing the State to impeach him with the underlying facts of previous convictions. On direct examination, appellant admitted he had been convicted of three charges of aggravated assault. Later, the State asked appellant, "Do you carry guns?" to which he responded, "no." Appellant testified, "I get into fights but I ain't never pulled a gun or nothing in my life." In response to further questioning, appellant admitted he had pleaded guilty to the three charges of aggravated assault with a deadly weapon and more specifically, that he had pleaded guilty to having shot three individuals. Appellant urges the trial court erred in allowing the State to cross-examine him about the details of the aggravated assaults after he had already admitted to the convictions. We review the trial court's decision to admit evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will uphold the trial court's ruling as long as it was within the zone of reasonable disagreement. Id. at 102. Rule 609(a) allows a witness to be impeached with his criminal history if the conviction is for a felony or a crime of moral turpitude. Tex. R. Evid. 609(a). Appellant urges Rule 609(a) does not permit the admission of the details of a conviction. Mays v. State, 726 S.W.2d 937, 953 (Tex.Crim.App. 1986). An exception to Rule 609 applies when a witness makes statements that leave a false impression with the jury as to the extent of prior convictions, charges, or "trouble" with the police. Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App. 1993). Appellant testified on direct examination that although he had previously been convicted of three charges of aggravated assault, he had "never pulled a gun in his life" when, in fact, he had been convicted of three gun-related offenses. The trial court did not abuse its discretion by permitting the State to clarify the true nature of the prior convictions. We resolve the third issue against appellant. In his fourth and final issue, appellant contends the judgment reflects the incorrect judgment date. The record shows appellant was convicted on March 30, 2005. The judgment, however, is dated March 28, 2005. Accordingly, we modify the trial court's judgment. See Tex. R. App. Proc. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). We affirm the trial court's judgment as modified.