Opinion
Nos. 05-03-01510-CR, 05-03-01511-CR
Opinion Filed January 31, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F02-50183-Wi and F02-50184-WI. Affirmed.
Before Justices WRIGHT, FITZGERALD, LANG-MIERS.
OPINION
Jason O'Neal Robinson appeals his conviction by jury of two offenses of aggravated robbery. The jury set punishment at 40 years' imprisonment for each offense. Appellant raises the following four issues on appeal: (1) the State did not give reasonable notice of its intent to introduce a prior juvenile adjudication; (2) the evidence was legally insufficient to sustain his convictions for aggravated robbery; (3) the evidence was factually insufficient to sustain his convictions; and (4) appellant's motion for new trial should have been granted based on unauthorized communications between the bailiff and the jury. We affirm the trial court's judgment.
SUFFICIENCY OF THE EVIDENCE
In his second and third issues, appellant contends the evidence is legally and factually insufficient to sustain his convictions for aggravated robbery. A person commits aggravated robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon. Tex. Pen. Code Ann. § 29.02, 29.03 (Vernon 2003). In reviewing the legal sufficiency of evidence, a reviewing court is limited to determining whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); see also Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998). The reviewing court does not weigh the favorable and non-favorable evidence, nor does it adopt the appellant's version of the facts. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). The fact finder is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Hester v. State, 909 S.W.2d 174, 177 (Tex.App.-Dallas 1995, no pet.). In reviewing the factual sufficiency of the evidence, a reviewing court considers all the evidence without the prism of "in the light most favorable to the prosecution" to determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient if (1) the evidence, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) weighing the evidence both supporting and contrary to the verdict, the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 485. The court must give deference to the fact finder's findings and set aside a verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Cotral Halton testified that on April 17, 2002, he gave his neighbor Ivory Stimpson a ride to south Dallas. When the men stopped at a mini-mart on the drive home, Stimpson went into the store while Halton remained in his vehicle. Stimpson came out accompanied by appellant. Stimpson told Halton that appellant offered to pay their gas money in exchange for a ride. Thinking Stimpson knew appellant, Halton agreed to give him a ride. Appellant led Halton to drive aimlessly for over 45 minutes before directing Halton to pull into a driveway in a residential neighborhood. After Halton stopped the vehicle, appellant jumped out and repeatedly exclaimed, "Y'all didn't know I was strapped." He then pointed a gun at Halton and, using threatening language, instructed Halton and Stimpson to get out of the vehicle. He then said, "You do what I say or I'm going to bust you. You know what I'm saying?" After the men got out of Halton's vehicle, appellant forced them to hold their hands up, walk into a yard, and take off their clothes. When the men hesitated in taking off their clothes, appellant pointed the gun at them and said, "Y'all don't think I'll bust y'all ass. . . . Get out of your clothes." Halton feared that appellant would kill him. After the men took off their clothes, appellant picked up their pants, searched the pockets, and took money and keys out of them, while continuing to hold the gun on the men. He then told the men to get dressed and forced them to walk down the street in front of Halton's vehicle, which he was driving. Appellant pointed and jerked the gun at the men and said he was going to "bust the cap." When they saw an opportunity, Halton and Stimpson ducked behind a car and then ran behind a bush. Appellant sped away in Halton's vehicle. Halton testified that Stimpson had "smoked a blunt" the evening of the robbery, but that he had not personally used any drugs. Anthony Smith testified that he was awakened by voices outside his residence on April 17, 2002. He looked out the window and saw one black man holding a handgun and ordering two other black men to undress. After he saw the men re-dress, he observed the third man order them to stand in front of the vehicle, while pointing the gun out of the driver's side window. When the men in front of the vehicle ran, the third man drove the vehicle out of the neighborhood. Dallas police officer Chris Lezotte testified that he was called to the location of the incident. When he arrived, Halton flagged him down, told him that a man had stolen his vehicle and some money, and described the man. Stimpson gave Lezotte a corresponding story. Smith also gave Lezotte a description of the perpetrator similar to the one given by Halton and Stimpson. Officer Lezotte testified that Halton seemed coherent when he talked with him after the robbery and that he did not seem to be under the influence of a controlled substance. Stimpson, who was serving a jail sentence for possession and delivery of a controlled substance at the time of trial, testified that he smoked PCP on the day of the robbery and recalled very little about the event. He stated that Halton had been smoking crack. At some point on the night of the robbery, Stimpson realized he was no longer in Halton's vehicle and that his money was missing. When he talked to police about the robbery, he told them the same story Halton told him. Appellant contends that the evidence is legally and factually insufficient to sustain his conviction because it did not show that appellant threatened or placed Stimpson in fear of imminent bodily injury or death. Stimpson admitted that he was on PCP and that he had no memory of the event and neither Stimpson nor Halton testified that Stimpson was threatened or placed in fear. However, Halton testified that appellant held a gun on them and said "Y'all don't think I'll bust y'all ass," and that he was going to "bust a cap." Smith also testified that appellant held a gun on the two men while ordering them to undress and then later to stand in front of the vehicle. Halton's testimony that appellant threatened both Halton and Stimpson verbally and with a gun, coupled with Smith's testimony that appellant held a gun on the two men, is sufficient to show that appellant threatened the men even without testimony from Stimpson. See Robinson v. State, 596 S.W.2d 130, 133 n. 7 (Tex.Crim.App. 1980) (noting that the display of a deadly weapon of and within itself constitutes a threat of the required imminent harm). After viewing these facts in the light most favorable to the State, we hold that the evidence is legally sufficient because a rational trier of fact could have found beyond a reasonable doubt that appellant threatened Stimpson. Based on our neutral review of all the evidence, both supporting and against the finding, we hold that the evidence is factually sufficient to show that appellant threatened Stimpson. The testimony that Stimpson smoked PCP and that Halton smoked crack cocaine on the evening of the robbery, while not necessarily favorable to the State, does not make the evidence factually insufficient to sustain appellant's conviction for aggravated robbery. Evidence that Stimpson took drugs and was unaware of the events of the robbery does not prevent a beyond-a-reasonable-doubt finding that appellant threatened Stimpson. As a result, we conclude that the jury was rationally justified in finding guilt beyond a reasonable doubt. We overrule appellant's second and third points of error.NOTICE OF PRIOR ADJUDICATION
In his first point of error, appellant contends that the State did not provide reasonable notice of its intent to introduce a prior juvenile adjudication under Texas Code of Criminal Procedure 37.07, section 3(g). On the morning the trial commenced, the State informed the trial court and appellant that it discovered a prior juvenile offense, but did not have its case number or disposition. Appellant objected to its introduction because it was not included in the State's previous notice of extraneous offenses. The trial court reserved ruling until the punishment phase two days later. At that time, the trial court asked appellant to articulate the harm he suffered by receiving notice of the offense at the start of trial. Appellant's counsel replied that he had not had time "to contact that officer out here to see if his character was good or bad or how he may have discharged it." The trial court overruled appellant's objection, allowing the State to introduce evidence of the prior juvenile adjudication. In determining whether a trial court erred in admitting evidence, the standard of review is abuse of discretion. Mozon v. State, 991 S.W.2d 841, 846-47 (Tex.Crim.App. 1999). Article 37.07, section 3(g) of the Texas Code of Criminal Procedure provides as follows:On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Criminal Evidence. . . . The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2004-05). The obligation of the State to give the notice required by Section 3(g) is not triggered unless and until the defense requests such notice. Mitchell v. State, 982 S.W.2d 425, 427 (Tex.Crim.App. 1998); Ford v. State, 106 S.W.3d 765, 766 (Tex.App.-Texarkana 2003, no pet.). When a document seeks trial court action, it cannot also serve as a request for notice triggering the State's duty under Article 37.07, § 3(g). Mitchell, 982 S.W.2d at 427; Ford, 106 S.W.3d at 766. The Court of Criminal Appeals has implied and other appellate courts have found that a defendant may comply with the notice requirements of section 3(g) by filing a discovery motion requesting the court to order notice under 37.07 and by securing a ruling on the discovery motion. See Mitchell, 982 S.W.2d at 427; Ford, 106 S.W.3d at 766; Henderson v. State, 29 S.W.3d 616, 625 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Appellant filed a pretrial motion requesting pretrial notice of "any evidence of bad acts or unadjudicated offenses allegedly committed by the Defendant, or for which he may be held criminally responsible, which the State intends to admit before the jury in the sentencing stage under 37.07 T.C.C.P." The trial court subsequently entered a discovery order requiring the State to provide a copy of appellant's criminal history report. Although appellant admits that his motion did not trigger the State's duty under Article 37.07, he contends that the trial court's discovery order did. Although appellant filed a discovery motion asking the court to order notice under Article 37.07, we do not find that the trial court ruled on his motion and ordered the State to give notice. The trial court simply ordered the State to provide a copy of appellant's criminal history report, but did not clearly require notice of intent to introduce evidence under Article 37.07. Therefore, the State was not obligated to give such notice, and the trial court did not abuse its discretion in allowing evidence of the prior juvenile adjudication. Even if appellant did trigger the State's duty to comply with the notice requirement in Article 37.07, the State's notice of the prior juvenile adjudication on the first morning of trial does not require reversal. Assuming without deciding that the State's notice was unreasonable, we must still consider whether the district court's admission of the evidence was harmful. See Roethel v. State, 80 S.W.3d 276 (Tex.App.-Austin 2002, no pet.); see Tex.R.App.P. 44.2. The erroneous admission of evidence of an extraneous offense in violation of the evidentiary rules does not violate the state or federal constitutions. Id. We must disregard any nonconstitutional error that does not affect substantial rights. Id. The purpose of the notice requirement in article 37.07 is to prevent unfair surprise and to enable the defendant to prepare to answer the extraneous offense evidence. See Nance v. State, 946 S.W.2d 490, 493 (Tex.App.-Fort Worth 1997, pet. ref'd). To determine harm in light of that purpose, we analyze whether and how the notice deficiency affected appellant's ability to prepare for the evidence. Apolinar v. State, 106 S.W.3d 407, 414-15 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Our sister courts have used a test in which they analyze whether the deficient notice resulted from prosecutorial bad faith or prevented the defendant from preparing for trial, including an inquiry of whether the defendant was surprised by the substance of the evidence and whether the lack of notice affected his ability to prepare cross-examination or mitigating evidence. Id.; Roethel, 80 S.W.3d at 282. Appellant does not accuse the State of bad faith because of the failure to provide reasonable notice. On the first day of trial, the State informed the trial court that it discovered the additional juvenile adjudication that morning and that it knew nothing about the offense except that appellant was sent to the Texas Youth Village for a year for it. Nothing indicates that the prosecution was acting in bad faith or attempting to prevent appellant from preparing a defense. The appellant did not argue that he did not recall the juvenile adjudication that resulted in his being sent to the Texas Youth Village. Additionally, he did not argue that late notice of the juvenile adjudication affected his ability to prepare mitigating evidence. Although Appellant argued that he was unable to contact an officer concerning the adjudication, he did not explain why he was unable to talk to the officer during the two days between the beginning of trial and the punishment phase or how being unable to speak with the officer harmed him. Given these considerations, we cannot say that the admission of the complained-of extraneous offense, if error, had a substantial and injurious effect or influence on the verdict. See Apolinar, 106 S.W.3d at 415. We overrule appellant's first issue.
UNAUTHORIZED COMMUNICATION WITH JURY
In his fourth point of error, appellant contends that the trial court erred by denying his motion for new trial based on unauthorized communications with the jury. During deliberations on guilt/innocence, the jury foreman gave the bailiff a note concerning the law in the case. Because the bailiff could not understand the question, he asked the foreman to explain it. Then, within earshot of every member of the jury, the bailiff proceeded to give examples of the difference between robbery and aggravated robbery and to explain the difference between theft and robbery. After the conclusion of the punishment phase, appellant moved for a new trial. The trial court questioned the bailiff and members of the jury, asking each juror whether they based their decision to convict on the law in the charge only and if the bailiff's statements had any influence on their verdict. Two jurors testified that they had not heard the bailiff's statements, and the others all testified that they did not rely on the bailiff's statements in reaching the verdict. The trial court denied appellant's motion for new trial. Texas Code of Criminal Procedure article 36.22 provides as follows:No person shall be permitted to be with a jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.Tex. Code Crim. Proc. Ann. art. 36.22 (Vernon 1981). When a juror converses with an unauthorized person, injury is presumed. Alba v. State, 905 S.W.2d 581, 587 (Tex.Crim.App. 1995). However, the State may rebut the presumption of harm and there must be injury to the accused before a new trial is warranted. Moody v. State, 827 S.W.2d 875, 899 (Tex.Crim.App. 1992); Robinson v. State, 851 S.W.2d 216, 230 (Tex.Crim.App. 1991). Denying a motion for new trial rests within the discretion of the trial court, and appellate courts will ordinarily not reverse that decision unless it is shown the trial court abused this discretion. See Robinson, 851 S.W.2d at 230; Moody v. State, 923 S.W.2d 689, 692 (Tex.App.-Tyler 1996, no writ). The record here shows that the bailiff made a statement to jury members explaining some of the laws involved in this case in violation of section 36.22. See Moody, 827 S.W.2d at 899. Therefore, the burden shifted to the State to rebut the presumption or harm and injury to appellant. See id. The State contends that the presumption was rebutted when each of the witnesses testified either that they had not heard the bailiff's statements or that his statements did not influence them in reaching their verdict. Appellant contends that the juror's testimony was not admissible under Texas Rule of Evidence 606(b). However, we may consider the jurors' testimonies that they did not rely on the bailiff's statements in reaching their verdict because appellant failed to object to the admission of the testimony. Salazar v. State, 38 S.W.3d 141, 147 (Tex.Crim.App. 2001), cert. denied 435 U.S. 855 (2001); Jennings v. State, 107 S.W.3d 85, 90 (Tex.App.-San Antonio 2003, no pet.). Because we find that the presumption of harm and injury to appellant was rebutted, we hold that the trial court did not abuse its discretion in denying appellant's motion for new trial. Accordingly, we overrule appellant's fourth issue.