Opinion
No. 01-05-00352-CR
Opinion Issued May 4, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 1010803.
Panel consists of Justices NUCHIA, KEYES, and HANKS.
MEMORANDUM OPINION
A jury found appellant, Allen James Granger, guilty of aggravated robbery and assessed punishment at life in prison and a $10,000 fine. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). In three points of error, appellant argues that (1) the evidence was legally and factually insufficient to sustain his conviction and (2) the trial court committed reversible error by denying appellant's motion for mistrial when the prosecutor made an improper reference to the range of punishment during closing arguments. We affirm.
Background
At approximately 4:00 p.m. on February 16, 2003, the complainant, Catherine Cisneros, was accosted by appellant as she walked to her apartment from the complex parking lot at 12905 Woodforest in Harris County. The complainant testified that appellant pointed a gun at her face and demanded the keys to her vehicle. The complainant surrendered her keys, and, after a brief struggle, appellant took the complainant's bag. At this point, appellant took possession of the complainant's white Toyota SUV and, upon being warned by an accomplice waiting nearby in a vehicle that the complainant was using her cell phone, sped away. Ten days after the incident, while on patrol, Constable L. Clark spotted appellant parked in a white Toyota SUV in the parking lot of Cunningham Middle School. Recognizing appellant from their prior relationship and knowing that appellant had no driver's license, Clark approached appellant and asked who owned the car and whether or not appellant had a driver's license. After appellant told Clark that the vehicle belonged to his girlfriend's mother, Clark told him that she would have to come get the car because appellant did not have a license. Clark allowed appellant to leave on foot to find her, but appellant never returned. While appellant was gone, Clark checked the vehicle's plates and learned that the sheriff's department wanted the vehicle for its involvement in a robbery. Harris County Deputy Sheriff S. Davis found appellant's fingerprint inside the stolen vehicle. When the complainant picked up her vehicle from the sheriff's storage lot, she noticed a gun between the driver's seat and console. Although Davis did not recover any latent fingerprints on the gun, the complainant confirmed at trial, while being cross-examined, that she was sure that the gun found was the gun (Exhibit 6) used in the robbery. J. Dupre, a firearms examiner with the Harris County Sherriff's Department, testified that Exhibit 6 was an "air soft gun," a replica of existing firearms, capable of shooting 6 millimeter plastic BB's. Dupre testified that by the time Exhibit 6 came into the laboratory the gun did not function, but that she could not determine when it had stopped functioning. Dupre identified the pellet found inside the magazine of the gun as potentially capable of being fired from the gun if it was, in fact, functioning at the time of the robbery, although she could not say at what velocity. When asked if a BB shot by an air soft gun was capable of causing serious bodily injury, Dupre testified that was outside the scope of her expertise. Dupre further testified that Exhibit 6 looked similar to a Heckler and Koch nine millimeter pistol, which she conceded was a deadly weapon. The jury also heard testimony from Officer S. McCoy, who testified that a BB gun can cause serious bodily injury. The trial court granted appellant's motion for an instruction of acquittal as to paragraph one of the indictment, which alleged that appellant had used a firearm in the commission of the robbery. The second count of the indictment included a charge for aggravated robbery with a deadly weapon, namely a BB gun, and the lesser-included offense of robbery. The jury returned a verdict of guilty as to aggravated robbery with a deadly weapon and assessed punishment at life in prison.Legal and Factual Sufficiency
In his first and second points of error, appellant argues that the evidence presented at trial was legally and factually insufficient to sustain his conviction. Specifically, appellant argues that he cannot be guilty of aggravated robbery with a deadly weapon because the BB gun used in the commission of the robbery was not a firearm and because the Harris County Sheriff's Department firearms examiner could not testify as to whether that BB gun could cause serious bodily injury. Legal Sufficiency We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562. A conviction for aggravated robbery requires that the State prove that the defendant committed a robbery and either "causes serious bodily injury to another," or "uses or exhibits a deadly weapon." Tex. Pen. Code Ann. § 29.03(a)(1), (2). A deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(a)(17)(B) (Vernon Supp. 2005). Here, Officer S. McCoy testified that a BB gun can cause serious bodily injury. Accordingly, legally sufficient evidence supports the jury's finding that the BB gun was a deadly weapon. See Adame v. State, 69 S.W.3d 581, 582 (Tex.Crim.App. 2002) (holding that, "[w]ith testimony that a BB gun is capable of causing serious bodily injury, it is reasonable for a jury to make a deadly weapon finding"). We overrule appellant's first point of error. Factual Sufficiency In his second point of error, appellant argues that the evidence is factually insufficient to establish that appellant committed aggravated robbery with a deadly weapon. In conducting a factual sufficiency review, we view all the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004)). The jury evaluates the credibility and demeanor of witnesses and determines the weight afforded contradicting testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). To support his argument that the evidence is factually insufficient, appellant relies on the testimony of Dupre, who testified that "this is out of my scope of expertise" when asked whether the BB gun could cause serious bodily injury. Appellant does not cite any other evidence that makes the jury's finding factually insufficient. Although Dupre could not answer the State's question, Officer McCoy testified that the BB gun was capable of causing serious bodily injury. Because the jury is the sole judge of the credibility of the witnesses, the jury could have chosen to believe Officer McCoy that the BB gun was capable of causing serious bodily injury. Accordingly, we conclude that the evidence is factually sufficient to establish that appellant committed aggravated robbery with a deadly weapon. We overrule appellant's second point of error.Motion for Mistrial
In his third point of error, appellant argues that the trial court abused its discretion by denying appellant's motion for mistrial. Specifically, appellant argues that a fair and impartial trial was not possible once the prosecutor, during closing arguments of the guilt-innocence stage of the trial, improperly argued the range of punishment for the lesser offense of robbery. We review a trial court's denial of a motion for a mistrial under an abuse of discretion standard, recognizing the court has broad powers to deal with unexpected situations occurring at trial. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); Sapata v. State, 574 S.W.2d 770, 771 (Tex.Crim.App. 1978). We should uphold the trial court's ruling if it is within the zone of reasonable disagreement. Wead v. State 129 S.W.3d 126, 129 (Tex.Crim.App. 2004). Appellant objects to the following exchange:[State]: We spent a lot of time, all of us did, actually, during voir dire, talking about the difference between aggravated robbery and robbery. Right? Robbery is a theft of property committed using some force. It turns into an aggravated robbery, though, when that force is with a deadly weapon. It is because it is more serious. It is because people do things differently when they feel like their life is in danger, when they feel like they can lose an organ or a limb. It is because it is more serious that the ranges of punishment are different. As it was discussed with you during voir dire, it's 2 to 20 years —
[Defense]: Objection, Your Honor, totally improper at argument to them tell the range of punishment. This is guilt only.
[Court]: All right. Let's stay away from the matter pertaining to punishment at this time, and speak only to the issue of guilt or innocence.
[Defense]: Judge, may I have a ruling on my objection?
[Court]: Sustain the objection.
[Defense]: Ask the jury to be instructed to disregard the last comments.
[Court]: Jury is instructed to disregard any matters to punishment at this time.
[Defense]: Judge, as a matter of law, make a motion for mistrial.
[Court]: That will be denied.Here, the State improperly commented about punishment during the guilt-innocence stage of trial. See McClure v. State, 544 S.W.2d 390, 393 (Tex.Crim.App. 1976) (holding that closing argument "that appellant should not be convicted of manslaughter because it carried a lesser punishment, but should be convicted of murder because of the greater penalty" was harmful). Although the State made an improper reference to the range of punishment during its closing argument, the harm will generally be cured by an instruction to disregard unless the statements were so manifestly improper as to inflame and prejudice the minds of the jury. Bruton v. State, 921 S.W.2d 531, 536 (Tex.App.-Fort Worth 1996, pet. ref'd). After reviewing the record, we conclude that the trial court's instruction to disregard cured any harm from the State's improper comment. See id. The State referred to the range of punishment for robbery only; it did not refer to the range of punishment for aggravated robbery. Thus, "the jury was not encouraged to choose between the two offenses on the basis of a comparison between punishments, rather than the facts presented." Id. Moreover, we note that the jury had already heard appellant's defense counsel refer to the punishment ranges for aggravated robbery and robbery during voir dire. Accordingly, we conclude that the trial court did not abuse its discretion in denying appellant's motion for mistrial. We overrule appellant's third point of error.