Opinion
Nos. 05-02-01620-CR, 05-02-01621-CR, 05-02-01622-CR, 05-02-01623-CR
Opinion issued January 14, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-76482-W, F02-39405-W, F01-15254-W, and F02-22850-W.
Affirmed in part, Remanded in part.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
OPINION
Appellant Isaiah Matthew Sanders was accused of committing four aggravated robberies of four separate Minyard's grocery stores during October and November of 2001. A jury found appellant guilty of the four robberies. In four issues, appellant complains his confessions were coerced; there was a variance between one of the indictments and the proof presented at trial; the trial court erred in failing to include the statutory parole instruction in the jury charge; and the judgments mistakenly omitted a portion of the time credit due appellant. We sustain appellant's fourth issue and remand the causes for consideration of time credit to be granted appellant under the Texas Code of Criminal Procedure. We overrule all other issues.
Background
Witnesses to robberies on October 4, November 14, November 18, and November 25, 2001, at four separate Minyard's grocery stores, testified that in each case, two men dressed from head to toe in black, with faces and hands covered, entered the store with guns, stole cash, and fled. No witness could identify appellant as one of the robbers. Appellant was arrested on December 4, 2001, and was questioned at the police department in Mesquite, Texas. Appellant initially denied involvement in the robberies. The next day, he signed five written confessions, confessing to the four Minyard's robberies as well as robberies at three other stores. Each of the written confessions contained the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and the officers taking the confessions testified they had gone over the warnings with appellant before the confessions were written. Appellant testified at trial he confessed only because police officers threatened his family. The police officers taking the confessions testified they did not threaten appellant's family. The officers did admit to misleading appellant about their ability to trace sequentially-numbered currency found in appellant's wallet at the time of his arrest. The jury found appellant guilty of the four robberies and assessed punishment at thirty years' confinement for each offense, to run concurrently. Appellant appeals. We will address his issue regarding the voluntariness of his confessions before reviewing the sufficiency of the evidence.Confessions
In his second issue, appellant argues the confessions admitted into evidence at trial were involuntarily made because the interrogating officers threatened appellant's family. Appellant signed five written confessions that were admitted into evidence at trial. The trial judge held hearings out of the presence of the jury regarding the admissibility of the confessions. Officers John Westphalen and Walter Hughey testified they did not threaten appellant's family. Further, the officers testified appellant was given Miranda warnings before each confession was written. Each written confession begins with a statement setting out the Miranda warnings given appellant and appellant's waiver of rights. The trial judge, as the trier of fact during the hearing, was the exclusive judge of the credibility of the witnesses as well as the weight to be afforded their testimony. See Westley v. State, 754 S.W.2d 224, 228 (Tex.Crim.App. 1988). Officers Westphalen and Hughey were questioned and cross-examined regarding the warnings given to appellant, the events surrounding the written confessions, and their denial of threats made in order to coerce the confessions from appellant. The trial judge weighed this testimony and made a determination the confessions were voluntarily made. Our review of the record reflects ample evidence upon which the trial judge could base her factual findings. We overrule appellant's second issue. See Westley, 754 S.W.2d at 229.Sufficiency of Evidence or Variance Between Indictment and Proof
In his first issue, appellant contends the evidence is insufficient to prove aggravated robbery in cause number F02-39405-W because the indictment named Noel Cayme as the victim, but "neither robber ever intentionally or knowingly threatened Cayme with imminent bodily injury or death." Cayme was the assistant manager of the Minyard's store robbed on October 4, 2001. In the alternative, appellant urges there was a material variance between the indictment and proof because the proof affirmatively demonstrated the robbers did not know Cayme was present. Appellant's confession indicates he was working in the Minyard's store on October 4, 2001, and he cut the locks on the back door to allow two others to enter and commit the robbery. The jury was instructed on the law of parties and appellant does not challenge his criminal responsibility for the acts of the robbers. When reviewing the legal sufficiency of the evidence, this Court examines the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). In conducting a factual sufficiency review, we neutrally analyze all of the evidence, both for and against the finding. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We will reverse only if we determine the proof of guilt is so weak or the contrary proof is so overwhelming that it renders the guilty verdict clearly wrong and unjust. Johnson, 23 S.W.3d at 11. In conducting this review, we must be appropriately deferential to the fact finder's role. Johnson, 23 S.W.3d at 11. Under either review, the fact finder is the exclusive judge of the witnesses's credibility and the weight to be given their testimony. See Jones v. State, 944 S.W.2d 642, 647, 648 (Tex.Crim. App. 1996). A "variance" occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App. 2001). In such a situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument. Gollihar, 46 S.W.3d at 246. We treat variance claims as insufficiency of the evidence problems. See Gollihar, 46 S.W.3d at 246-47. Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. See Gollihar, 46 S.W.3d at 253 (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)). Only a "material" variance, that is, a variance prejudicial to a defendant's "substantial rights," will render the evidence insufficient. See Gollihar, 46 S.W.3d at 248-49, 256-57. In determining whether a defendant's substantial rights have been prejudiced, we ask two questions: (i) whether the indictment or information, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and (ii) whether prosecution under the deficiently drafted indictment or information would subject the defendant to the risk of being prosecuted later for the same crime. See Gollihar, 46 S.W.3d at 248. An indictment or information is sufficient if it sets forth the alleged offense in plain, intelligible language sufficient to enable the accused to prepare a defense. Hare v. State, 713 S.W.2d 396, 398 (Tex. App.-El Paso 1986, pet. ref'd). The indictment or information should be read as a whole and viewed in light of common understanding. Hare, 713 S.W.2d at 398. A person commits the offense of 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. See Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 2003). A person commits the offense of aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 2003). A person acts intentionally when "it is his conscious objective or desire to engage in the conduct or cause the result." Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). A person acts knowingly when he is aware of the nature of his conduct and the circumstances surrounding it, or that his conduct is reasonably certain to cause the result. Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003). The indictment alleges on or about October 4, 2001, appellant did:unlawfully then and there while in the course of committing theft and with intent to obtain and maintain control of the property of Noel Cayme, hereinafter called complainant . . . did then and there intentionally and knowingly threaten and place the said complainant in fear of imminent bodily injury and death, and the defendant did then and there use and exhibit a deadly weapon, to-wit: a firearm, against the peace and dignity of the State.The prosecution is bound by the allegations it sets out in the charging instrument and must prove those allegations beyond a reasonable doubt in order to obtain a valid conviction. Davis v. State, 796 S.W.2d 813, 816 (Tex. App.-Dallas 1990, pet. ref'd). As we stated in Davis, we will overrule appellant's issue if the record contains sufficient evidence to show that, while in the course of committing theft, appellant threatened and placed Cayme in fear of imminent bodily injury and death, and used or exhibited a deadly weapon. See Davis, 796 S.W.2d at 816. Cayme testified he was working as the manager in charge of a Minyard's Food Store located in Lancaster, Texas on October 4, 2001. Cayme testified he witnessed a robbery at the store that evening at approximately 10:30 or 10:40 p.m. Cayme was walking toward the office in front of the store when he heard a scream and saw two masked robbers inside the store. The robbers were dressed completely in black, and both had guns. Cayme watched as one robber raised a pistol and pointed it at Camelia Slater, the cashier in the booth, while the other took money. Cayme testified that when he realized an armed robbery was occurring, he stepped outside and made a 911 call at a pay telephone situated by the front door. While on the telephone with the 911 operator, Cayme could see the robbers' continued activity in the store. Cayme told the operator to be quick in sending the police because if the robbers fled through the front door, they would see him on the telephone and shoot him, knowing he was calling for help. Cayme fully expected the robbers to come out of the front door. Cayme told the jury he believed all persons in the store at the time of the robbery were in danger from the robbers' conduct, especially their waving guns during the commission of the robbery. Cayme testified he was placed in fear he would be injured by the robbers, even though his first concern was for Slater. The fear required to sustain a robbery conviction must be of such a nature as in reason and common experience is likely to induce a person to part with his property against his will, and the threat or conduct placing another in fear must be of imminent bodily injury. See Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim. App. 1989). An objective standard of review is employed to determine whether the evidence is legally sufficient to support a conviction; "[t]he appellate court must ask if the words and conduct of the accused were sufficient to place a reasonable person in the victim's circumstances in fear of imminent bodily injury or death." Welch v. State, 880 S.W.2d 225, 226 (Tex. App.-Austin 1994, no pet.) (per curiam). Cayme was in charge of the store; witnessed masked robbers holding a gun to a co-worker; and took the risk of calling the police even though he was near the door where he thought the armed robbers would exit. The evidence is legally and factually sufficient to support a finding Cayme was in imminent fear of bodily injury or death. Nevertheless, appellant argues this fear could not have been intended because the robbers never saw Cayme. Appellant acted "knowingly" if he was aware it was reasonably certain his robbery attempt would place Cayme in fear of imminent bodily injury or death. See Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003). The evidence supported a conclusion that the robbers, by pointing guns at Slater, and waving the guns, intentionally or knowingly threatened not only the cashier but others in the store, including the manager in charge of the store at the time. In addition, under the doctrine of transferred intent, a person is criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that a different person was injured, harmed, or otherwise affected. See Tex. Pen. Code Ann. § 6.04(b)(2) (Vernon 2003). A hypothetically correct charge in this case could have included an instruction on transferred intent. See Manrique v. State, 994 S.W.2d 640, 648 (Tex.Crim. App. 1999) (Meyers, J., concurring); Malik v. State, 953 S.W.2d at 240 (evidence is not to be held insufficient because of defect in court's charge; sufficiency of evidence is measured against "hypothetically correct" jury charge for case). Even assuming the evidence was insufficient to support appellant's conviction without application of a transferred intent theory, the evidence showed the robbers' intent was to threaten Slater with imminent bodily injury, and their conduct resulted in a threat of imminent bodily injury to Cayme. There was no variance between the indictment and the proof at trial prejudicial to appellant's substantial rights. See Gollihar, 46 S.W.3d at 247-48, 256-57. Appellant's first issue is overruled.
Statutory Parole Instruction
In his third issue, appellant complains of the charge given to the jury during the punishment phase of the trial, arguing the statutory instruction regarding parole was erroneously omitted. See Tex. Code Crim. Proc. Ann. Art. 37.07 § 4 (Vernon Supp. 2004). Appellant concedes no objection was made to this omission at trial. Because appellant did not object, he is entitled to a reversal only if he can show egregious harm, or harm so great that he was denied a fair and impartial trial. Skinner v. State, 956 S.W.2d 532, 544-545 (Tex.Crim.App. 1997). In determining whether egregious harm occurred, we must review the error "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial court as a whole." Skinner, 956 S.W.2d at 544. Citing Rogers v. State, 38 S.W.3d 725 (Tex. App.-Texarkana 2001, pet. ref'd), appellant contends he was egregiously harmed by the trial judge's failure to explain the parole laws through the statutory instruction. Appellant points to the jurors' note sent to the judge during punishment phase deliberations inquiring, "If we give him 5 yrs per charge which total 20 yrs for all four charges will Isaiah Sanders be in TDC for only five years total or will be in the TDC for 20 yrs? Do the sentences run consecutively or concurrently? Define both consecutively and concurrently." The trial judge answered "under the law the Court can only respond that the sentences will run concurrently." In closing argument, the prosecuting attorney urged the jury to give appellant five to seven years for each robbery. He continued,And any punishment you give him is going to run concurrently. What I'm telling you is a good range is between 35 and 49 years in the Texas Department of Criminal Corrections. Now, the judge has instructed you you can't talk about the parole laws because that doesn't matter. You can't try to figure out how much time he is going to serve, because that doesn't matter. We're asking you to sentence him to a flat rate somewhere in that range.The four punishment charges included instructions regarding the punishment authorized for the offense and community supervision. They also included the following instruction, "You are further instructed that in determining the punishment in this case, you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and are no concern of yours." Regarding the state of the evidence, the jury heard numerous witnesses describe a series of armed robberies occurring in a two-month period. The jury also heard evidence regarding appellant's confessions to those robberies, both from appellant and from the police officers who took the statements. During the punishment phase, the jury heard evidence regarding appellant's confessions to three other armed robberies. The jury also heard testimony from appellant's family members, including their testimony that appellant had not been in trouble before. The Rogers opinion cited by appellant is distinguishable. In Rogers, the judge gave a substantive answer to the jury's inquiry regarding the length of a "life" sentence. The judge responded the defendant would serve a minimum of thirty years before being eligible for parole. See Rogers, 38 S.W.3d at 728. The appellant argued the judge's answer constituted an improper instruction advising the jury of the mathematical effect of the parole law. Rogers, 38 S.W.3d at 729. In jury argument in Rogers, the prosecutor explicitly questioned how long the defendant would be out on parole before committing another offense. Rogers, 38 S.W.3d at 730. Further, the jury charge in Rogers apparently contained no instruction the jury was not to consider how parole law might be applied to the particular defendant. See Rogers, 38 S.W.3d at 729. The court of appeals in Rogers concluded egregious harm had occurred, citing the prosecutor's argument, the jury's question regarding the effect of parole, the failure of the trial court to include the statutory language in its answer, and the trial court's failure to follow the proper procedure for answering jury questions. See Rogers, 38 S.W.3d at 730. Here, in contrast, the judge did not advise the jury of the specific length of any sentence or the time at which appellant would become eligible for parole. Further, the prosecutor's argument here advised the jury not to consider parole, unlike the Rogers argument in which the prosecutor urged the jury to consider what would happen when the defendant was paroled. In addition, the jury here was instructed not to consider how long appellant might be required to serve any sentence imposed. In light of the entire jury charge, the state of the evidence, the argument of counsel and other relevant information revealed by the record as a whole, see Skinner, 956 S.W.2d at 544, we cannot conclude appellant was so egregiously harmed that he was deprived of a fair and impartial trial. We overrule appellant's third issue.
Time Credit
In his fourth issue, appellant argues the judgments do not reflect time credit due him. Article 42.03, section 2(a) of the Texas Code of Criminal Procedure requires the trial judge give a defendant credit as follows:In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court.Tex. Code Crim. Proc. Ann. Art. 42.03 § 2(a) (Vernon Supp. 2004). The statute is mandatory. See Guerra v. State, 518 S.W.2d 815, 817 (Tex.Crim.App. 1975). The credit is to run from the date of arrest, not the date of indictment. See Espinoza v. State, 653 S.W.2d 446, 448 (Tex. App.-San Antonio 1982) (sentence reformed to reflect credit for time served from date of arrest, not later date of indictment), affirmed, 669 S.W.2d 736 (Tex.Crim.App. 1984). The record reflects appellant was arrested on a warrant for a traffic violation on the night of December 4, 2001. He was questioned that night and the next morning, and confessed to all of the robberies on December 5, 2001. The record shows the cause relating to the November 25 robbery was filed on December 11, 2001, and appellant notes the docket sheet for that offense reflects appellant made bail on or about December 19, 2001. He further notes the indictment for the November 14 offense shows he was in custody again as of March 12, 2002. There is nothing in the record indicating when appellant was arrested for any of the four robberies. Each judgment gives time credit to appellant ending on the date he was sentenced, September 6, 2002, except the judgment for the November 25, 2001 offense, in which credit ends on December 20, 2001. The commencement dates of the credits differ. Three of the commencement dates appear to coincide with the dates the cases were filed against appellant. For the first robbery on October 4, 2001, credit commences on July 23, 2002, the same date appearing in the "Date Filed" blank on the indictment. For the November 14, 2001 offense, credit commences March 13, 2002, the same date the case was filed. For the November 18, 2001 offense, credit commences January 3, 2002; the file date is January 2, 2002. For the November 25, 2001 offense, credit commences on December 5, 2001; the file date is December 11, 2001. Appellant argues he should be given credit on all four offenses for the dates December 5 through December 20, 2001, and January 3, 2002, through September 6, 2002. Appellant does not point to any reference in the record showing he was in custody as of January 3, 2002. The indictment dated January 2, 2002, shows his location as "unknown" rather than in custody. The State points to a trial exhibit showing appellant was arrested on a traffic warrant on December 20, 2001, and placed in custody. The State argues the statute allows credit only for time served "on said cause." The only cause filed as of appellant's first period of confinement was for the November 25, 2001 offense. Causes for the three other offenses were not filed until January, March, and July 2002. Thus, the State argues, any time served prior to January, March, or July could only be attributable to the causes actually on file as of those dates. The State concludes appellant could not be serving time on "said cause" if the cause had not yet been filed. There appears to be no dispute that appellant's first arrest on December 5, 2001 was on an outstanding traffic warrant, not for any of the robberies. It is not clear from our record, however, when appellant was arrested and in custody under any of the robbery charges. Article 42.03, section 2(a) provides the trial judge shall give credit "from the time of [defendant's] arrest and confinement until his sentence by the trial court." See Tex. Code Crim. Proc. Ann. Art. 42.03 § 2(a) (Vernon Supp. 2004). From the record before this court, it appears the credits run from the dates causes were filed on the four offenses. However, there is insufficient information in the appellate record for us to determine the dates appellant was arrested and in custody on each cause and thus the proper credit to be given. We may reform or correct a judgment when we have the necessary data and information to do so. See Lockett v. State, 874 S.W.2d 810, 818 (Tex. App.-Dallas 1994, pet. ref'd). Here, where there is insufficient information, we remand the causes to the trial court for calculation of the credit for time spent in confinement as required under section 2(a) of article 42.03 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. Art. 42.03 § 2(a) (Vernon Supp. 2004); see also Sparkman v. State, 55 S.W.3d 625, 629 (Tex. App.-Tyler 2000, no pet.) (court reformed parts of judgment for which there was sufficient information in appellate record to correct errors; but remanded cause to obtain omitted, statutorily — required thumbprint on judgment). We overrule appellant's first three points of error. We sustain appellant's fourth point of error and remand the causes to the trial court for hearing and findings regarding the dates of appellant's arrest(s) and period(s) of confinement on the four robbery causes, and if required, granting credit for any additional time served in accordance with section 2(a) of article 42.03 of the Texas Code of Criminal Procedure.