Opinion
No. 01-04-00196-CR
Opinion issued August 31, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 938729.
Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND, Chief Justice RADACK, concurring.
MEMORANDUM OPINION
Appellant, Raymond Ramirez, was charged by indictment with aggravated robbery, to which he pleaded not guilty. Tex. Pen. Code Ann. § 29.03 (Vernon 2003). A jury found appellant guilty, and the trial court assessed punishment at ten years' confinement. In three issues, appellant contends that (1) the evidence was factually insufficient to support his conviction, (2) the trial court erred in overruling defense counsel's motion to withdraw, and (3) the trial court erred in denying appellant's motion for mistrial. We affirm.
BACKGROUND
On December 23, 2002, a man entered the Cookoo Taqueria in Houston and held the restaurant patrons at gunpoint. Appellant entered behind the gunman and told everyone to get down on the floor. Appellant looked at patron Juan Antonio Gomez and, in Spanish, said, "Get down, Juanio. Get down, Juanio." Juanio was Gomez's nickname in the neighborhood. The complainant, Refugio Barajas, was the owner of the restaurant and was in his office when the men entered. One of the employees yelled to the complainant, and the complainant came out to see the gunman propping the front door open with his leg and pointing a gun at patrons at the front tables. The complainant looked for his own gun, then froze in fear as he watched appellant grab the cash register and drop it behind the counter. Appellant, who was wearing a hooded jacket and a handkerchief over his nose and lower face, went around the counter and, when he attempted to pick the register up, his handkerchief fell down, revealing his face. Gomez immediately recognized appellant as a man known as "Chimp," who lived in the neighborhood. The gunman held the door open as appellant carried the register outside. Another man, waiting at a get-away car, helped appellant load it. The three men left in the car. Officer J.J. Garcia, of the Houston Police Department, arrived within minutes. Gomez reported that he knew one of the robbers. Later, Gomez picked appellant out of a photospread. The complainant could not make any positive identifications. Although the events were captured on security video, the tape was not clear enough to allow any identifications. The jury was instructed on the law of parties. After returning a general verdict of guilty, the jury was unable to agree on punishment. Appellant withdrew his election to have the jury assess punishment and asked the court to assess punishment instead.Factual Sufficiency
In his second issue, appellant contends that the evidence was factually insufficient to support his conviction because the State failed to put on evidence that connected appellant to the robbery. Specifically, appellant argues that Gomez's testimony was insufficient to identify appellant as one of the robbers, and the State failed to show that appellant was connected with the get-away car or possessed the stolen property.A. Standard of Review
In a factual-sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside 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)). We must defer appropriately to the fact-finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481-82. Our evaluation may not intrude upon the fact-finder's role as the sole judge of the weight and credibility accorded any witness's testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). The fact-finder alone determines what weight to place on contradictory testimonial evidence, as it depends on the fact-finder's evaluation of credibility and demeanor. Id. at 408. In conducting a factual-sufficiency review, we must discuss the evidence that, according to appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).B. Aggravated Robbery
The Penal Code provides, in pertinent part, that a person commits robbery if, in the course of committing a theft and with intent to obtain or maintain control of property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02 (Vernon 2003). A robbery becomes aggravated if, inter alia, the person uses or exhibits a deadly weapon. Id. § 29.03. A person is criminally responsible as a party to the offense if the offense is committed "by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). Each party to the offense may be charged with its commission. Id. § 7.01(b). A person is criminally responsible for the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid another person to commit the offense. Id. § 7.02(a)(2).C. Analysis
The evidence showed that Gomez identified appellant as one of the robbers because Gomez had known appellant for several years prior to the robbery and immediately recognized appellant when the handkerchief appellant wore fell from his face during the robbery. Gomez testified that appellant lived in the neighborhood and went by the nickname, "Chimp." Gomez also testified that he and appellant used to work together. The evidence shows that appellant lived in the neighborhood, less than a mile from the restaurant. In addition, the evidence showed that, during the robbery, appellant called Gomez by his nickname "Juanio." Gomez testified that only people who know him address him as "Juanio," and Gomez recognized appellant's voice. To contradict this testimony, appellant presented evidence that the complainant was unable to positively identify appellant as one of the robbers. Appellant argues that Gomez's testimony was insufficient, on its own, to implicate appellant in the robbery, or to prove that appellant is "Chimp." However, the Court of Criminal Appeals has held that testimony by a sole witness is sufficient to support a conviction. See Moore v. State, 446 S.W.2d 877, 878 (Tex.Crim.App. 1969) (concluding that positive identification by single employee of store was sufficient to support conviction for felony theft); see also Davis v. State, 831 S.W.2d 839, 842 (Tex.App.-Dallas 1992, pet. ref'd) (concluding that identification by single witness was sufficient to support aggravated-robbery conviction). Here, Gomez testified that he was only a few feet away from appellant during the robbery. Gomez identified appellant to Officer Garcia immediately after the robbery, then identified appellant later from a police photo-spread, then identified him again in the courtroom during trial. Appellant argues that there was no evidence that he was found in possession of the get-away car or the stolen cash register after the robbery. However, Gomez testified that he saw appellant personally exercise control over the cash register as it was stolen from the complainant and saw appellant leave in the get-away car. No proof that appellant was in possession of the get-away car or of the cash register subsequent to the robbery was necessary. Further, Gomez testified that, leading up to the trial, appellant told him not to testify, via messages conveyed through others. In addition, Gomez testified that a person claiming to be an investigator for the defense approached him on the day of trial and asked him to sign a form stating that he was mistaken when he identified appellant as the person who committed the robbery. The Court of Criminal Appeals has held that attempts by the accused to suppress a witness's testimony tend to show "consciousness of guilt." Ransom v. State, 920 S.W.2d 288, 299 (Tex.Crim.App. 1996). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented by the complainant, Gomez, or Officer Garcia. See Cain, 958 S.W.2d at 407; McKinny v. State, 76 S.W.3d 463, 468-69 (Tex.App.-Houston [1st Dist.] 2002, no pet.). We hold that the jury's verdict that appellant is the person who committed the robbery is not irrational, or clearly wrong and manifestly unjust, or that the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. See Escamilla, 143 S.W.3d at 817. We overrule appellant's second issue.Mistrial
In his third issue, appellant contends that the trial court erred in denying his motion for mistrial because the prosecution's closing argument included improper statements that prejudiced the defense. We review a trial court's refusal to grant a mistrial for an abuse of discretion. Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). Permissible jury argument must be restricted to (1) a summation of the evidence; (2) a reasonable deduction from the evidence; (3) answering argument of opposing counsel; or (4) a plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). Argument outside these boundaries is in error, but reversal is required only if, in light of the record as a whole, the argument is extremely or manifestly improper, violates a mandatory statute, or injects new facts into the trial that are harmful to the accused. Id. Generally, improper jury argument may be cured by an instruction to disregard. Martinez v. State, 17 S.W.3d 677, 691 (Tex.Crim.App. 2000). Only in extreme circumstances, when the prejudice is incurable, will a mistrial be required. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). Specifically at issue are the following remarks by the prosecution in closing: "They talk about the burden of proof, the burden of proof, the burden of proof. You didn't hear from one alibi witness. That's because there ain't no alibi." Defense counsel objected, contending that these remarks improperly shifted the burden of proof to the defense. The trial court sustained the objection and instructed the jury to disregard the statements. Defense counsel moved for mistrial, which the trial court denied. Appellant contends that his motion for mistrial was improperly denied because "the prosecutor clearly intended to suggest that [appellant] was responsible for providing witnesses to prove his innocence." Appellant contends that these remarks were "particularly egregious" because alibi was not at issue; rather, the credibility of Gomez was the only argument made by the defense. The State counters that its remarks in closing were proper because they were in response to defense counsel's statement, "And finally, ladies and gentleman, yes, I could have called witnesses. The burden is on the State." The State argues that this statement insinuated that defense witnesses existed, but that the defense simply chose not to call them. The Court of Criminal Appeals has held that "[i]t is always impermissible for a prosecuting attorney to ask jurors to speculate on the law, the facts of the case, or hypothetical defenses a defendant could have presented to a jury." Garrett v. State, 632 S.W.2d 350, 351 (Tex.Crim.App. 1982). In addition, the prosecution may not comment on a defendant's failure to testify or present evidence of his innocence. Id. at 351-52. However, an exception exists that allows the State to properly comment on a failure of the defense to call competent and material witnesses when it is shown that such witnesses were available to testify on behalf of the defendant, but were not called by the defendant to testify. Id. at 353. In Garrett, at issue was the prosecution's comment in closing that the defendant was "a man that if his friends and family could bring you an alibi [defense, they] would [have]." Id. The Court of Criminal Appeals found that this statement was not only outside the record but also constituted an improper allusion to the defendant's failure to testify because the State put on all of the witnesses who were present during the robberies and there was no evidence before the jury that anyone else was available. Id. The court found that "there was nothing whatsoever to reflect that the appellant had any witnesses who could have testified to the defense of alibi." Id. at 351. The court held that the comment clearly constituted trial error because the defendant was the only person left who could have been in a position to testify as to an alibi. Id. at 353. (explaining that "an implied or indirect allusion to the failure of the accused to testify" is not enough to support error unless the comment calls "for a denial of an assertion of fact . . . that only the defendant is in a position to offer"). Here, the record shows that others were present during the robbery who were not called. While defense counsel suggested that there may have been other witnesses that he could have called, there was no evidence in the record to affirmatively establish that alibi witnesses were available and not called. See Williams v. State, 688 S.W.2d 486, 490 (Tex.Crim.App. 1985) (distinguishing between witnesses shown by evidence to exist versus those who exist purely by prosecution's speculation). Hence, the exception does not apply and the prosecutor's argument was in error. See also Person v. State, 706 S.W.2d 153, 155 (Tex.App.-Houston [1st Dist.] 1986, no pet.) (addressing prosecution's "repeated speculative ventures outside the record" when commenting on defendant's failure to call witnesses during punishment phase). Because the trial court properly sustained appellant's objection to the argument and issued an instruction to disregard, the only adverse ruling at issue before us is whether the trial court erred in its denial of the motion for mistrial. See Hawkins, 135 S.W.3d at 77. A harm analysis is conducted in light of the trial court's curative ruling. Id. We do not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance that the error did not influence the jury or only had a slight effect. Tex.R.App.P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). We consider (1) the severity of the conduct, (2) the measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. Mosely v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). As to the first factor, the prosecution's remarks, while an improper suggestion that the defense carried the burden to provide evidence of innocence, appear to be an isolated incident that could have been in response to the veiled suggestion by the defense that key witnesses were deliberately withheld. The remarks were not the only ones the jury heard on the matter of burden or the law; rather, the remarks came on the heels of a lengthy discussion in defense's closing as to the proper burden each party carried. As to second factor, the trial court properly sustained appellant's objection and immediately instructed the jury to disregard the remarks. See Hawkins, 135 S.W3d at 84 (concluding that, when counsel asks for particular instruction and trial court accedes, the instruction is generally considered effective to cure harm). Further, the jury was properly instructed on the law and on each party's burden in the charge. See id. (considering charge as curative). As to the third factor, appellant was positively identified by a witness who personally knew him. The evidence was sufficient to support the conviction and an isolated suggestion by the prosecution that appellant had a burden to prove his innocence did not contribute to that conviction. In reviewing the record and balancing these factors, we conclude that the remarks were not so extreme as to render the instruction to disregard ineffective. See Martinez, 17 S.W.3d at 691; Sandoval v. State, 52 S.W.3d 851, 858 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). We conclude that the trial court did not abuse its discretion in denying the request for a mistrial. Appellant's third issue is overruled.Motion to Withdraw
In his first issue, appellant contends that the trial court erred in overruling his trial counsel's motion to withdraw. Defense counsel presented a motion to withdraw during trial on the grounds that counsel had become a material witness because he had personal information about the veracity of the State's main witness, Gomez. We review a trial court's denial of a motion to withdraw for an abuse of discretion. Brewer v. State, 649 S.W.2d 628, 631 (Tex.Crim.App. 1983). A trial court abuses its discretion when it acts without guiding rules or principles. Robbins v. State, 88 S.W.3d 256, 259-60 (Tex.Crim.App. 2002). We review the trial court's ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court's judgment if it lies within the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). During the guilt phase, in a hearing outside the presence of the jury, defense counsel established that he had spoken to Gomez in a private interview days before trial. At issue is that Gomez's testimony in the hearing allegedly conflicted with Gomez's statements in the interview, as follows:[Defense]: Okay. But you told me that you identified Chimp, not as a person who robbed you but as someone who you knew, is that correct?
[Gomez]: No.
[Defense]: That is not what you said?
[Gomez]: No. . . . [Defense]:Okay. Again, specifically, you told me, yes or no, that you picked Chimp out as a person who you knew but he was not the person who had the gun who robbed the place on December 23, 2002? Is that what you told me?
[Gomez]: No.Defense counsel alleged that, upon this testimony, an inherent conflict developed because counsel was the only one who could testify concerning the inconsistencies. Hence, counsel asserted, he became a material witness and was forced to withdraw. The trial court denied defense counsel's motion. On appeal, appellant contends that, because the motion was denied, defense counsel "did not have an opportunity to testify and the jury was left with the false impression that Gomez testified entirely truthfully." However, defense counsel cross-examined Gomez concerning possible inconsistencies in his statements of identification to police. In addition, defense counsel cross-examined Gomez concerning statements of identification he made to the defense investigator in the days before trial. Appellant has not shown how any inability of defense counsel to testify presented a prejudicial situation that prevented counsel from zealously representing him. See Brewer, 649 S.W.2d at 630-31. Further, appellant does not contend that he was denied effective assistance of counsel. We cannot conclude on these facts that the trial court acted arbitrarily or unreasonably in denying defense counsel's motion to withdraw. We overrule appellant's first issue.
Conclusion
We affirm the judgment of the trial court.CONCURRING OPINION
Because I believe that the State's argument was a proper response to argument by defense counsel, I respectfully concur. During closing argument, defense counsel stated, "And finally, ladies and gentleman, yes, I could have called witnesses. The burden is on the State." (Emphasis added). The prosecutor responded by arguing, "They talk about the burden of proof, the burden of proof, the burden of proof. You didn't hear from one alibi witness. That's because there ain't no alibi." Appellant's statement that, "The burden is on the State," is a correct statement of the law. However, his statement that "I could have called witnesses," suggests that defense witnesses were available, but that appellant chose not to call them. To rebut the inference that defense witnesses were available, the State argued, "You didn't hear from one alibi witness. . . . because there ain't no alibi." The State may comment in jury argument on the failure of a defendant to call competent and material witnesses, when it is shown that such witnesses were available to testify. Garrett v. State, 632 S.W.2d 350, 351 (Tex. 1982). I disagree with the majority's conclusion that this rule of law from Garrett is not applicable because "there was no evidence in the record to affirmatively establish that specific alibi witnesses were available and not called." Defense counsel, arguing outside the record, improperly suggested that alibi witnesses were available. There was no need for the State to prove that alibi witnesses were available because the defense had already argued, albeit improperly, that such witnesses existed and could have been called. Accordingly, I would hold that the State's argument was a proper comment on appellant's failure to call witnesses, not an impermissible comment on his failure to testify. Furthermore, a prosecutor may comment on a defendant's failure to testify if necessary to answer jury arguments made by the defendant. See Long v. State, 823 S.W.2d 259, 269 (Tex.Crim.App. 1991); Goldberg v. State, 95 S.W.3d 345, 388 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). In Long v. State, the defense counsel argued to the jury that they had not "heard all the details" about the case. 823 S.W.2d at 268. During its argument, the State responded, "Defense counsel suggests to you that there are facts that you didn't hear that are real critical. Who knows what those facts are? Who could provide these lawyers with the means of compelling that evidence and having it brought before you? [The defendant.]." Id. at 269. On appeal, appellant argued that the State had improperly commented on his failure to testify. Id. The Texas Court of Criminal Appeals held that the State's argument was invited by the argument of defense counsel. Id. In this case, as in Long, appellant suggested that there were witnesses that had not been brought before the jury. As such, I would hold that appellant invited the State's comment about alleged missing witnesses. Because the State's argument (1) was a proper comment on appellant's ability to call witnesses, and (2) was invited by defense counsel's argument, I would hold that the trial court did not err by overruling appellant's motion for mistrial. Accordingly, I concur in the disposition of point of error three.
There was no issue of mistaken identity in this case. Therefore, the only possible "defense witness" that appellant could have called would have been an "alibi witness."
The court further held, in dicta, that even if the comment by the State was not invited, error, if any was cured. Id.