INA v. STATE

Full title: KENDRICK PAUL INA, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Feb 21, 2008

No. 14-06-00498-CR (Tex. App. Feb. 21, 2008)

Opinion

No. 14-06-00498-CR

Opinion filed February 21, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).

On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1041278.

Panel consists of Chief Justice HEDGES and Justices ANDERSON and FROST.

MEMORANDUM OPINION

KEM THOMPSON FROST, Justice.

Appellant Kendrick Paul Ina challenges his conviction for aggravated robbery, asserting that the evidence is legally and factually insufficient to support the conviction and that the trial court erred in admitting extraneous-offense evidence and in denying his motion for mistrial based on improper argument. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 5, 2004, a man entered a convenience store at approximately 10:20 a.m., pulled out a gun, and demanded money. The convenience store clerk and store owner, Jaffarali Prasla, complied by pulling out the cash drawer from the register and placing it on the counter. The man took the money from the cash drawer and demanded more, so Prasla emptied his pockets and gave his wallet to the robber. The man then walked around the counter and located a wooden drawer underneath the counter. The drawer contained more money. The intruder told Prasla to put the money in a bag, demanded Newport brand cigarettes, ordered Prasla to lie face-down on the floor, and then left the store. Houston police officers arrived on the scene and viewed a surveillance videotape of the robbery. Prasla described the robber as a black man wearing black sunglasses and a baseball cap. Prasla gave height and weight estimates of the robber, but he was unable to associate a vehicle with the robbery. A Houston police officer printed a still photo from the surveillance video footage and showed it to two managers at a nearby apartment complex. The two managers gave the officer a tenant's name (not appellant's name), but upon arriving at that individual's apartment, the officer eliminated him as a suspect based on his physical appearance. This man's photo was placed in a lineup and shown to Prasla, who did not identify the man as the robber. Several days later, Prasla called police after seeing a man resembling the robber driving away from the store in a brown and black Chevrolet pick-up truck. However, after viewing new surveillance footage, the responding officers and Prasla concluded that it was a different man. The convenience store was robbed a second time at approximately 11:50 a.m. on October 22, 2004, by a black male wearing a baseball cap and sunglasses. The man approached Prasla with a gun and demanded money, took the money from the wooden drawer underneath the counter, told Prasla to put the money in a bag, and ordered Prasla to lie face-down on the floor. The store's security camera captured the event on a surveillance videotape. Prasla connected the robber with a gold Honda automobile and gave a licence plate number, but police were unable to locate the vehicle. Prasla sold the convenience store at the end of October 2004, and the store was robbed again while under new ownership at approximately 1:50 p.m. on November 30, 2004. This robber matched the same physical description, wore sunglasses and a black baseball cap with orange lettering, told the clerk to get a bag for the money, looked under the counter for the wooden drawer of cash, and demanded a carton of Newport cigarettes. Again, the incident was recorded by the store's video surveillance equipment. The police received a tip directing them to a vehicle owned by appellant. The police located appellant, obtained his consent to search the vehicle, and recovered a black baseball cap with orange lettering and a pair of sunglasses. Officers then compiled a video line-up using appellant and four other individuals, from which Prasla selected appellant as the robber, stating that he was 75% certain about his identification. However, upon seeing appellant in person, Prasla stated that he was 100% certain about his identification. Appellant was apprehended and charged by indictment with the offense of aggravated robbery for the August 5, 2004 incident. The indictment alleged that appellant used a deadly weapon in the course of committing a robbery. Appellant pleaded "not guilty." The jury found him guilty as charged and assessed punishment at forty years' confinement in the Institutional Division of the Texas Department of Criminal Justice.

II. ISSUES PRESENTED

Appellant presents the following issues for review:

(1) Is the evidence legally and factually sufficient to support appellant's conviction for aggravated robbery?¹

(2) Did the trial court err in admitting extraneous-offense evidence of the two subsequent robberies, including surveillance videotapes of the October 22nd and November 30th incidents, the baseball cap, the sunglasses, and still photographs and the video from the police line-up?

(3) Did the trial court err in denying a mistrial on the basis of the State's improper argument?

III. ANALYSIS

A. Is the evidence legally and factually sufficient to support appellant's conviction for aggravated robbery?

In his second and third issues, appellant asserts that the evidence is legally and factually insufficient to support his conviction for aggravated robbery. A person commits a robbery if in the course of committing a theft, and "with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." TEX. PENAL CODE ANN. § 29.02 (Vernon 2003). The offense becomes aggravated robbery if the person committing the robbery uses a deadly weapon during the commission of the robbery. Id. § 29.03 (Vernon 2003). In evaluating a legal — sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). The jury, as the trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is "clearly wrong" or "manifestly unjust" because the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 414-17 (Tex.Crim.App. 2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. Id. at 417. If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414-17. Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See Fuentes, 991 S.W.2d at 271. In conducting a factual — sufficiency review, we discuss the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). In the present case, the evidence is undisputed that a man wearing a baseball cap and sunglasses robbed the convenience store on August 5, 2004. Video surveillance recorded the incident, and still photos were taken from that videotape. The same store was robbed on two other occasions under very similar circumstances, and evidence of those extraneous offenses was admitted to assist the jury in determining the identity of the robber in the August 5, 2004 incident. Police obtained appellant's consent to search his vehicle and recovered a baseball cap and sunglasses. The convenience store owner tentatively identified appellant as the robber from a video line up, and reaffirmed his identification in person at trial. The prosecution presented various witnesses, including the former owner of the convenience store who was robbed at gunpoint on August 5, 2004, the current owner of the convenience store, and the officer who searched appellant's car. The jury, being the sole judge of the credibility of the witnesses, could choose to believe or not believe the witnesses at all, or choose to believe or not believe any portion of their testimony. Rojas v. State, 171 S.W.3d 442, 445-46 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). After reviewing the record, we conclude that a rational trier of fact could conclude beyond a reasonable doubt that appellant committed the offense with which he was charged. Likewise, after reviewing the evidence in a neutral light, we conclude that the verdict is not against the great weight and preponderance of the evidence and is not clearly wrong or unjust. See Watson, 204 S.W.3d at 414-17. Accordingly, the evidence is legally and factually sufficient to support appellant's conviction. We overrule appellant's second and third issues.

B. Did the trial court err in admitting extraneous-offense evidence of the two subsequent robberies?

Appellant complains that the trial court erred in admitting extraneous-offense evidence of the robberies that occurred on October 22, 2004 and November 30, 2004. Specifically, appellant contends the trial court should have excluded from evidence the store's surveillance videotapes of those incidents as well as the baseball cap, sunglasses, and the video and photos from the line-up as inadmissible extraneous-offense evidence under Texas Rules of Evidence 404(b) and 403. See TEX. R. EVID. 403 (excluding relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice); TEX. R. EVID. 404(b) (permitting evidence of other crimes, wrongs, or acts if relevant apart from conformity with character). A trial court's ruling on admissibility of extraneous-offense evidence is reviewed under an abuse-of-discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). If the trial court's ruling falls within the zone of reasonable disagreement, we must affirm. Id. A determination of whether the extraneous-offense evidence holds relevance apart from the character conformity, as required by Rule 404(b), is a question for the trial court. Id.; see TEX. R. EVID. 404(b). A trial court's decision in this matter is owed no less deference than any other relevancy decision. Moses, 105 S.W.3d at 627.

Did the trial court err in admitting the extraneous offense evidence in violation of Texas Rule of Evidence 404(b)?

Texas Rule of Evidence 404(b) permits relevant extraneous-offense evidence of other crimes, wrongs, or acts if the evidence holds relevance apart from proving that the defendant acted in conformity with bad character. TEX. R. EVID. 404(b); Moses, 105 S.W.3d at 626. A trial court violates Rule 404(b) if, despite a timely and specific objection, it admits evidence of other crimes, wrongs, or acts that is relevant to nothing except an attempt to show the defendant acted in conformity with a bad character. Montgomery v. State, 810 S.W.2d 372, 386-87 (Tex.Crim.App. 1991) (op. on reh'g). Extraneous-offense evidence may be admitted for some purposes apart from relevance to character conformity, including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b); Montgomery, 810 S.W.2d at 387-88. However, to introduce evidence for a purpose other than character conformity, or any other purpose permitted under 404(b), does not alone make the evidence admissible. Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App. 1996). The extraneous-offense evidence also must be relevant to a "fact of consequence" in the case. Id.; Webb v. State, 36 S.W.3d 164, 180 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (en banc); see TEX. R. EVID. 401 (concerning relevance). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." TEX. R. EVID. 401; Montgomery, 810 S.W.2d at 375-76 (noting that relevant evidence needs only to "tend" to affect some probability or would logically influence the issue). Extraneous-offense evidence may be admissible to show identity when identity is at issue, as in this case. See Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App. 1996). However, raising the issue of identity does not automatically render evidence of an extraneous offense admissible. Id. For such evidence to be admissible, the extraneous offense must be so similar to the charged offense that both are marked as handiwork of the accused. Id. Sufficient similarity may be shown by proximity in time and place or by a common mode of committing the offenses. Harvey v. State, 3 S.W.3d 170, 175-76 (Tex.App.-Houston[14th Dist.] 1999, pet. ref'd). In the present case, identity was an issue. See Webb, 36 S.W.3d at 180 (recognizing that extraneous-offense evidence must be a "fact of consequence"). Appellant was charged only with the robbery that occurred on August 5, 2004. However, the same convenience store was robbed three times in 2004: August 5, October 22, and November 30. Surveillance equipment recorded each incident. The baseball cap, found in appellant's car, connects him to the November 30th incident; and the sunglasses connect appellant to the November 30th and August 5th incidents. Appellant's physical appearance links him to all three incidents. Moreover, the similar methods used in each robbery suggest that the same person might be responsible. See Lane, 933 S.W.2d at 519; Harvey, 3 S.W.3d at 175-76. The two extraneous offenses share many similar characteristics with the August 5th offense: the same store was robbed during the daytime by a black male with similar physical features, characteristics, and accessories. See Harvey, 3 S.W.3d at 175-76 (noting similarity in proximity in time and place suggest identity). Furthermore, in each incident, the robber held the cashier at gunpoint, ordered the cashier to put money in a bag, demanded Newport cigarettes, and ordered the cashier to lay face-down. See id. (demonstrating similarity through common mode of committing the offenses). In the first robbery, when the robber demanded more money, Prasla revealed a wooden drawer under the counter that contained more money. This same drawer was accessed during the subsequent robberies. The proximity in time and place, the common mode of committing the offenses, and the circumstances surrounding the offenses are all sufficiently similar for the extraneous-offense evidence to be relevant to the issue of identity. See Lane, 933 S.W.2d at 519; Harvey, 3 S.W.3d at 175-76. Because identity was an issue raised in this case, the extraneous-offense evidence of the subsequent robberies in October and November was relevant apart from proving appellant's action in conformity therewith, and consequently that evidence is admissible extraneous-offense evidence under 404(b). TEX. R. EVID. 404(b); Montgomery, 810 S.W.2d at 387-88. For this reason, the trial court did not err in admitting the extraneous-offense evidence over appellant's 404(b) objections. See Moses, 105 S.W.3d at 627; Montgomery, 810 S.W.2d at 386-87.

Did the trial court err in admitting the extraneous offense evidence in violation of Texas Rule of Evidence 403?

Even if relevant evidence is admissible under 404(b) for a permissible purpose not related to character conformity, a trial court should exclude it if its probative value is substantially outweighed by the danger of unfair prejudice under Rule 403. TEX. R. EVID. 403 (excluding relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice); Moses, 105 S.W.3d at 626. Because we review a trial court's decision to admit evidence over a 403 objection under an abuse-of-discretion standard, we will reverse a trial court's decision only if the danger of unfair prejudice substantially outweighs the probative value of the evidence. Montgomery, 810 S.W.2d at 390, 392-93. Under a Rule 403 analysis, a reviewing court should balance the following factors to determine whether prejudice outweighs the probative value of an extraneous offense: (1) the strength of the evidence in making a fact more or less probable, (2) the potential of the extraneous-offense evidence to impress the jury in some irrational but indelible way, (3) the amount of time the proponent needs to develop the evidence, and (4) the strength of the proponent's need for this evidence to prove a fact of consequence. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999). When, as in this case, the record is silent as to whether the trial court made its findings by balancing these factors, it will be presumed that the trial court conducted the balancing test. See Williams v. State, 958 S.W.2d 186, 195-96 (Tex.Crim.App. 1997). On cross-examination, appellant consistently contested his identity in the August 5th robbery. First, the extraneous-offense evidence holds inherent probative value in making an important fact of consequence, the appellant's identity, more or less probable that he was the person who committed the robbery on August 5th. See Montgomery, 810 S.W.2d at 389-90. Moreover, the evidence of similar crimes is probative because of the distinguishing characteristics common to all three offenses. See Beets v. State, 767 S.W.2d 711, 740-41 (Tex.Crim.App. 1987) (explaining that when identity is disputed, probative value outweighs a prejudicial effect to admit extraneous-offense evidence upon a showing of distinguishing characteristics, common to all offenses, that earmark a defendant's handiwork as a "signature"). Next, though the danger of unfair prejudice lies in the jury's potential to be impressed in some irrational but indelible way, the evidence was offered to show appellant's identity and not for the purpose of injecting improper character evidence. See Mozon, 991 S.W.2d at 847. The trial court's decision to admit this evidence was within the zone of reasonable disagreement. See Moses, 105 S.W.3d at 627. Furthermore, as the third factor suggests, the State did not spend much time developing the evidence. See Mozon, 991 S.W.2d at 847. The time the State devoted to the task was not so great that it diverted from the development of evidence of the August 5th offense. See Montgomery, 810 S.W.2d at 390. Finally, the extent to which the State needed the extraneous-offense evidence to prove identity depends on a combination of: (1) the amount of other circumstantial evidence tending to show identity; (2) the strength of the evidence in showing the person committed the extraneous offense; and (3) how closely the extraneous-offense evidence matches the crime so as to establish the culprit's signature. See generally Montgomery, 810 S.W.2d at 390; Albrecht v. State, 486 S.W.2d 97, 100, 102 (Tex.Crim.App. 1972). The clerks on duty at the time of the robberies were the only eyewitnesses; thus, the State had some need for the extraneous-offense evidence to prove appellant's identity in committing the August 5th robbery based on the common characteristics of the three incidents. Montgomery, 810 S.W.2d at 390; Albrecht, 486 S.W.2d at 100, 102. Furthermore, based on the same physical characteristics and methods in the three robberies, the extraneous-offense evidence appears to strongly establish appellant's signature in his handiwork. See generally Montgomery, 810 S.W.2d at 390; Albrecht, 486 S.W.2d at 100, 102. We conclude that the trial court did not abuse its discretion in determining that the probative value of the extraneous-offense evidence substantially outweighed the danger of unfair prejudice. Thus, the trial court did not err in admitting the evidence despite appellant's Rule 403 objections. See TEX. R. EVID. 403; Moses, 105 S.W.3d 622. Accordingly, we overrule appellant's first issue.

C. Did the trial court err in denying a mistrial on the basis of the State's improper argument?

In his fourth issue, appellant complains that the trial court erred in denying his request for a mistrial based on the following exchange during the State's closing argument:

PROSECUTION: All right. And if you'll notice the robberies stopped when Mr. Ina was arrested.

DEFENSE: Objection Your Honor. There is no evidence whatsoever to sustain — to support that. Objection.

THE COURT: Well, I instruct the jury to disregard.

DEFENSE: And I would ask for a mistrial based on the obvious prejudicial nature of the comments of the prosecutor.

THE COURT: Denied.

We review a trial court's ruling on mistrial under an abuse-of-discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). A mistrial is an extreme remedial device for prejudicial events that occur during the course of a trial. Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). A trial court commits error in denying a motion for mistrial only if the argument is extreme, manifestly improper, injects new and harmful facts into the case, or violates a mandatory statutory provision, and was thus so inflammatory that an instruction to disregard will not remove its prejudicial effect from the minds of the jury. Hernandez v. State, 805 S.W.2d 409, 414 (Tex.Crim.App. 1990). As a general rule, any harm associated with an improper argument can be cured by an instruction to the jury to disregard the improper comment. Long v. State, 823 S.W.2d 259, 269 (Tex.Crim.App. 1991). The reviewing court puts its faith in the jury's ability, upon instruction, to consciously recognize the potential for prejudice and to discount the prejudice, if any, in its deliberations. Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987). We presume that the jury obeyed the trial court's instruction to disregard. See id. This analysis holds true except in extreme cases in which it appears that the argument was of such a character as to suggest the impossibility of withdrawing the impression produced in the minds of the jurors. Id. Only in such an extraordinary instance would we conclude an instruction to disregard did not overcome the prejudicial effect of an improper argument. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex.Crim.App. 1993). In this case, the trial court promptly followed the improper-argument objection with an appropriate instruction to disregard, and therefore we must apply a rebuttable presumption that the jury complied with the court's instruction to disregard. See Gardner, 730 S.W.2d at 696. The statement in question was not of such a character that the impression produced in the minds of the jury was so inflammatory that its prejudicial effects could not be overcome by an instruction to disregard. See Simpson, 119 S.W.3d at 274. Thus, we conclude that the trial court did not abuse its discretion in denying the motion for a mistrial. See id. We overrule appellant's fourth issue. Having overruled all of appellant's issues, we affirm the trial court's judgment.