No. 05-03-01381-CR
Opinion Filed November 2, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-00259-KU. Affirm as Modified
Before Justices WRIGHT, RICHTER, and MAZZANT.
Opinion By Justice RICHTER.
James Michael Durham appeals his jury conviction for aggravated robbery. In seven issues, Durham challenges (i) certain evidentiary rulings; (ii) the complainant's in-court identification of him; (iii) the sufficiency of the evidence to support the conviction, (iv) the sufficiency of the evidence to support the trial court's finding concerning one of two enhancement paragraphs; (v) the imposition of a $3,000 fine as part of punishment; and (vi) a recitation in the judgment that he pleaded true to one of the enhancement paragraphs. Because we agree that the court erred in assessing a fine in this case, we modify the judgment to delete the fine. As modified, we affirm the trial court's judgment.
Background
The robbery occurred in the parking lot of a grocery store. According to the complainant, she had parked her car and was reaching back for her purse when she saw someone out of the corner of her eye approaching her. When she turned to take a better look, she saw a man standing right at her opened window with a knife. The man put the knife to her shoulder and asked her for her money. When she replied that she did not have any, he demanded her purse. She complied and he then took her car keys and cell phone. As he began to walk away, he threw her keys on the hood of her car. The complainant then got out of her car and began to chase him. The complainant caught up with him just as he got into the passenger side of a waiting car and was driven away. Within moments, the police arrived and obtained a description of the robber from her. Six days later, after reviewing a six-picture line-up, she identified Durham as the robber. Durham was subsequently arrested with help from the driver of the "get-away" car. At trial, the complainant testified she was able to "get a good look" at the man who robbed her "and had enough time to see what his face looked like, see his bone structure, that sort of [thing]." She then identified Durham in open court as the robber. Subsequently, she testified about the picture line-up and that Durham was the same man she had identified from that line-up. The complainant testified further that she was certain Durham was the man who had robbed her, that she had identified him in open-court based on her observations at the time of the robbery, that she would never forget his face, and that she would have been able to identify him in court even if she had never seen his picture in the line-up. Finally, the complainant testified that the driver of the "get-away" car was a female and there was a passenger, possibly a black male, in the back seat. Donna Maxey, the driver of the "get-away" car, testified she drove Durham to the grocery store on the day of the robbery, but did not know he would be committing a robbery. According to Maxey, she dropped Durham off at the front entrance and parked the car. About five minutes later, Durham returned carrying a knife and "something black" in his hand. Behind Durham was a lady screaming that Durham had taken her purse. Durham demanded that Maxey drive away and Maxey complied, but a few minutes later she "kicked" him out of the car. Three days later, Maxey was arrested on an unrelated charge. She informed the officer at that time about the robbery and gave the officer Durham's driver's license which Durham had left in her car. After being released, Maxey "met up" with Durham and later "turned him in" when the two, riding in a stolen car, were pulled over by a police officer. Inside that car was the knife used in the robbery. Upon questioning by the State, Maxey admitted to several theft, burglary, prostitution, and drug-related convictions and to "being on drugs" the day of the robbery. Maxey also admitted she was currently in jail, but would be released within two days. Detective Mark Talley testified he learned the details of the robbery from Maxey and showed the complainant a six-picture line-up containing Durham's driver's license picture. Talley explained he used that picture of Durham because he had no other. Talley also testified that Durham did not match the weight estimate the complainant had provided following the robbery. Durham's sole witness was Maxey, whom he recalled to establish that she left the car running while waiting for Durham to return from the store and that the back-seat passenger was not a black male, but a white female. Evidentiary Rulings
In his fourth and fifth issues, Durham complains about certain evidentiary rulings. Specifically, in his fourth issue, Durham asserts the court abused its discretion when it ruled Durham could not introduce evidence that Maxey had been previously convicted of the unlawful carrying of a weapon (UCW). Durham maintains the court's ruling prevented him from "establishing Maxey's capacity, knowledge, and willfulness to carry a weapon, and concomitantly, stopped [him] from providing an alternative [and exculpatory] explanation for the knife's presence . . . [leaving the jury] to infer that it was used by [him] in the [robbery]." In his fifth issue, Durham complains the court abused its discretion in allowing the State to introduce, over his objection, evidence that he was driving a stolen car at the time of his arrest. Durham maintains this evidence created an inference that he was a thief and thus a criminal in general. In response to both of Durham's evidentiary complaints, the State argues that any error was harmless. We agree with the State. We review rulings on the admissibility of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will find a trial court's ruling on the admissibility of evidence to be reversible error when the court acts without reference to any guiding principles and appellant has been harmed. See Tex.R.App.P. 44.2; Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Because generally the erroneous admission or exclusion of evidence does not rise to the level of constitutional error, we look only to see if an appellant's substantial rights have been affected in determining whether an appellant has been harmed by such evidence. See King v. State, 953 S.W.2d 266, 271-73 (Tex.Crim.App. 1997); Phelps v. State, 999 S.W.2d 512, 520 (Tex.App.-Eastland 1999, pet. ref'd). In making this determination, we consider the entire record, including the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). We also may consider the parties' trial theories, the court's instructions to the jury, and the parties' closing arguments. Id. We will find the error to be harmless when the record provides us a "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon, 49 S.W.3d at 365 (citation omitted). We need not determine whether either of the complained-of rulings in this case was error because we conclude that neither affected Durham's substantial rights. As summarized above, the complainant provided detailed testimony about the robbery, much of which was corroborated by Maxey. That Maxey might have previously been convicted of UCW does not impact this evidence. At most, the evidence of Maxey's UCW conviction might suggest the knife found when Durham was arrested belonged to her. However, as the State points out, who owned the knife was immaterial to whether Durham committed the robbery using that knife. Moreover, to the extent that any suggestion that Maxey owned the knife might show Maxey acted with Durham, the jury was instructed in the charge on the law of accomplice witness testimony. Given the record before us, we conclude any error in excluding Maxey's UCW conviction did not influence the jury or had but a slight effect. We also conclude any error in admitting the evidence that Durham was driving a stolen car at the time he was arrested did not influence the jury or had but a slight effect. This evidence was background evidence leading to testimony concerning how the knife used in the robbery was found, was minimal compared to the testimony concerning the robbery, and was mentioned only in passing in the State's closing argument. Given this record, we conclude Durham's complaint is meritless. We resolve Durham's fourth and fifth issues against him. Identification Testimony
In his sixth issue, Durham argues the trial court erred in overruling his objection to the complainant's in-court identification of him because it was tainted by an unduly suggestive pretrial photographic line-up. Specifically, Durham asserts that the hair of three of the individuals in the line-up was longer and less "bushy" than his and also complains about the use of his driver's license picture which was of a "different substance and paper" than the "mugshots" of the other individuals. Durham maintains the line-up was so suggestive as to present a substantial likelihood of misidentification, thus rendering the complainant's identification testimony inadmissible. Although Durham correctly notes that a line-up may be so suggestive as to render a complainant's identification testimony inadmissible, see Loserth v. State, 963 S.W.2d 770, 771-72 (Tex.Crim.App. 1998), we disagree with his contention that the complainant's identification testimony in this case was erroneously admitted. A witness's identification testimony is admissible at trial even though the witness may have viewed an improper line-up if the witness's ability to make the in-court identification has an origin independent of the alleged improper pretrial identification procedure. Waller v. State, 648 S.W.2d 308, 312 (Tex.Crim.App. 1983) (op. on reh'g); Weatherred v. State, 35 S.W.3d 304, 312 (Tex.App.-Beaumont 2001, pet. ref'd). In this case, the complainant testified she was able to get a "good look" at the robber and identified Durham in open court prior to any questioning about the line-up she viewed. The complainant also testified her in-court identification was based on her observations at the time of the robbery, she would never forget Durham's face, and she would have been able to identify Durham in court even if she had never seen his picture in the line-up. Because the complainant's in-court identification of Durham was based on her observations during the robbery and not the line-up she viewed, we conclude its admission was proper. See Weatherred, 35 S.W.3d at 312. We resolve Durham's sixth issue against him. Sufficiency of the Evidence to Support Conviction
In his seventh issue, Durham complains the evidence is factually insufficient to show he was the robber and, thus, factually insufficient to support the conviction. In arguing this issue, Durham notes that no forensic evidence physically tying Durham to the robbery exists as neither the complainant's key chain which the robber held briefly nor the knife used in the robbery were fingerprinted. Additionally, Durham maintains the complainant's and Maxey's testimony should be discounted because the complainant's physical description of the robber following the robbery did not exactly match Durham and because of Maxey's "profound" criminal record and "imprisoned status." Durham maintains that without the complainant's and Maxey's testimony and without forensic evidence tying Durham to the robbery, his conviction cannot stand. We reject Durham's contentions. In conducting a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, * 7 (Tex.Crim.App. April 21, 2004). In making this determination, we are mindful that the trier of fact is the exclusive judge of the witnesses' credibility and the weight of the testimony and may accept or reject all or part of the evidence of either side. Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no pet.). Viewing the evidence in this case under a neutral light, we conclude the jury was rationally justified in finding beyond a reasonable doubt that Durham was the robber. As stated, the complainant identified Durham as the robber and testified that she had ample time to look at his face and would never forget it. Her testimony concerning the robbery was corroborated in large part by Maxey, who distinctly recalled a lady chasing after Durham and screaming that he had robbed her and then saw Durham with a knife and "something black" in his hands. Although no forensic evidence tied Durham to the robbery, none was necessary. See Johnson v. State, 01-03-00319-CR, 2004 WL 1472064, at *3 (Tex.App.-Houston [1st Dist.] July 1, 2004, pet. filed) (lack of physical or forensic evidence factor for jury to consider in weighing evidence). Moreover, no contrary evidence was offered. As the exclusive judge of the witnesses' credibility, the jury was free to accept as true the complainant's and Maxey's identification of Durham as the robber, in spite of any inaccuracies in the complainant's physical description of the robber and Maxey's lengthy criminal record and imprisoned status. See Bruno, 922 S.W.2d at 293. We resolve Durham's seventh issue against him. Sufficiency of Evidence to Support Enhanced Punishment
In his first issue, Durham complains the evidence is insufficient to sustain the trial court's finding that the final enhancement paragraph concerning a 1997 Illinois felony conviction for obstructing justice is true. Relevant to this issue, the record reflects Durham's punishment was enhanced by two prior felony convictions-the 1997 Illinois conviction and a 1999 Florida conviction for aggravated assault on a law enforcement officer. See Tex. Pen. Code Ann. §§ 12.42(d) (Vernon Supp. 2005) (enhancing punishment to life imprisonment or for term not more than ninety-nine years or less than twenty-five years for felon, other than state jail felon, previously twice convicted of felony offense); 29.03(b) (Vernon 2003) (classifying aggravated robbery as first degree felony). As proof of these convictions, the State offered the pertinent pen packets into evidence. Durham did not object to the Florida pen packet-State's exhibit 11-but did object to the Illinois pen packet-State's exhibit 12-on the ground that nothing in the packet showed the conviction was for a felony offense. In response, the State offered as State's exhibit 13 a copy of the relevant section of the Illinois Penal Code showing that at the time Durham was convicted for obstructing justice, the offense was a felony. Durham did not object to this exhibit, and the trial judge admitted it into evidence. The judge did not, however, expressly rule on Durham's objection to the Illinois pen packet nor actually state he was admitting the pen packet into evidence. Both sides then rested and closed. Following argument, the judge found both enhancement paragraphs true. Durham now argues that because the judge did not actually state he was admitting the Illinois pen packet into evidence, it was in fact not in evidence. Without this exhibit, Durham maintains there is no evidence to support the trial court's finding that the enhancement paragraph is true. And accordingly, there is no evidence to support his enhanced punishment. Again, we reject Durham's contentions. An exhibit not expressly admitted into evidence may nonetheless be considered as evidence, even if an objection was lodged against it, when the parties and judge treat the exhibit as if it were in evidence. See Swanson v. State, 722 S.W.2d 158, 161 (Tex.App.-Houston [14th Dist.] 1986, pet. ref'd). Examples of such treatment include references to the exhibit during testimony or closing argument, inclusion of the exhibit in the record, and the judge's consideration of the exhibit in rendering judgment. See Ex parte Reagan, 549 S.W.2d 204, 205 (Tex.Crim.App. 1977) (inclusion of exhibit in record); Killion v. State, 503 S.W.2d 765, 766 (Tex.Crim.App. 1973) (reference to exhibit during testimony); Kissinger v. State, 501 S.W.2d 78, 79 (Tex.Crim.App. 1973) (judge's consideration of judicial confessions in rendering judgment); Swanson, 722 S.W.2d at 161 (reference to objected-to exhibit during closing argument). In this case, the Illinois pen packet is part of the record on appeal, and Durham specifically referred to it in his closing argument, "again object[ing] to [it] being in." (italics added) Additionally, as stated, the relevant portion of the Illinois Penal Code showing that obstructing justice is a felony offense was admitted into evidence. Without the pen packet in evidence, this exhibit would be immaterial to the case. Given the record before us, we conclude the Illinois pen packet was in evidence, was properly considered by the judge in the determination of punishment, and supports the enhanced punishment. We resolve Durham's first issue against him. Plea of True to Enhancement Paragraph
In his third issue, Durham complains that the judgment erroneously recites he pleaded true to the final enhancement paragraph concerning the Illinois conviction and should be reformed to indicate he pleaded not true. Durham bases his argument on the fact he objected to the pen packet for that conviction-State's exhibit 12. However, as the State points out, Durham pleaded true to this paragraph at a pre-trial hearing and did not request or indicate at a later time that it be changed to not true. Moreover, Durham did not complain about his plea of true to this paragraph in a motion for new trial. By failing to object at trial, Durham waived his complaint. See Tex.R.App.P. 33.1. We resolve Durham's third issue against him. Imposition of Fine
In his second issue, Durham asserts, and the State agrees, that the trial court improperly assessed the $3,000 fine and should therefore be deleted from the judgment. Durham's punishment, enhanced by two prior felony convictions, was assessed pursuant to section 12.42(d) of the Texas Penal Code. See Tex. Pen. Code Ann. § 12.42(d). This section does not provide for the imposition of a fine. See id. Consequently, the fine in this case was unauthorized. See Ex parte Johnson, 697 S.W.2d 605, 607-08 (Tex.Crim.App. 1985). In cases such as this, where the necessary data and information is available, we have the authority to modify the incorrect judgment. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we sustain Durham's second issue and modify the judgment to delete the $3,000 fine. As modified, we affirm the trial court's judgment.