Opinion
No. 05-09-01493-CR
Opinion Filed August 10, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F-0955646-I.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
Bret Williams appeals his jury conviction for robbery. In five issues, Williams asserts the evidence is legally and factually insufficient to support the conviction, the trial court erred in overruling his objection to improper jury argument and in failing to sua sponte include in the court's charge the "benefit of the doubt" instruction, and his counsel was ineffective. We affirm the trial court's judgment.
I. Background
Williams was arrested at a Target store and charged with robbery after obtaining a refund for items he had not purchased and fighting with a store manager. The indictment alleged, in relevant part, that Williams struck the manager with his fist while in the course of committing theft. The trial was short and consisted at the guilt-innocence phase of the testimony of Target Store loss prevention manager Thaddeaus Smith and Dallas police officer Joshua Estes. Smith testified he was on the sales floor the afternoon of June 8, 2009 when he was notified by a store employee that Williams was "shopping the sales floor holding up a receipt in his hand" and carrying a Radio Shack shopping bag. Williams's behavior was consistent with a person attempting to commit "return fraud," a "method" of shoplifting. Smith explained that "return fraud" involves "shop[ping] off a receipt." According to Smith, a person committing "return fraud" selects items listed on a receipt from a prior purchase and, rather than paying for the items, takes the items to guest services to try to obtain a cash refund using the "old" receipt. Often times, Smith explained, the person will place the item in another retailer's shopping bag to conceal the items while on the sales floor. Smith testified he found Williams leaving the men's department pushing a shopping cart containing some merchandise. Smith began "floor surveillance" of Williams and followed Williams to the "stationery, cards and party department." There, Smith observed Williams place in his cart items Williams matched from the receipt. Williams then proceeded directly to guest services, presented the receipt, and requested a refund for the items in his cart. Smith heard Williams state to the service representative assisting him that he was returning the items for his wife and wanted cash instead of a credit to the debit card reflected on the receipt. The service representative processed the refund and gave Williams $41.08 in cash. As Williams began walking towards the exit, Smith approached him. Smith identified himself and asked Williams to accompany him. Smith testified Williams "acted like he was going to comply," but then "came at [Smith] forcefully." Smith tried to defend himself, but was punched in the face by Williams "more than once." After struggling for about a minute, Smith was able to subdue Williams with the help of other employees. Smith testified he experienced pain and bruising in his face from the punch he received, but required no medical treatment. Smith also testified he scratched his arm on the wall as he struggled with Williams. In corroboration of Smith's testimony, the State offered into evidence two pictures showing Smith's injuries and pictures of Williams, the receipt Williams tendered for the refund, and the cash Williams received. The State also offered into evidence two recordings from the store's surveillance cameras. Although the recordings are of poor quality, they show Williams in the store "shopping off of the receipt" and seeking the refund. The recordings also show Williams fighting with Smith for about a minute. Specifically, the recordings show Williams pushed Smith when Smith approached him, the two struggled, Smith nearly falling as the two struggled, and Williams grabbed an "alarm pedestal" near the exit doors trying to hit Smith with it. Officer Estes testified he and his partner arrived at the store within twenty minutes of receiving the "shoplifting call." They found Williams in handcuffs and the cash refund he had received sitting on a counter. Estes talked to Smith about what had happened and learned Smith had been struck in the face. Estes noticed Smith "had redness and swelling in his face from where he stated he'd been hit," and based on Smith's statement that he had been struck, arrested Williams for robbery. Williams did not testify, but at his request, the trial court included in its charge an instruction on the lesser-included offense of theft. The jury found Williams guilty of robbery and assessed punishment at five years' confinement and a $41.08 fine.II. Sufficiency of the Evidence
In his first two issues, Williams asserts the evidence is legally and factually insufficient to support his conviction. In arguing these issues, Williams does not dispute he committed theft, but challenges only the evidence to support he intentionally or knowingly struck Smith with his fist during the course of the commission of the theft. In making this argument, Williams relies on the surveillance recordings.A. Standard of Review
In Brooks v. State, the Texas Court of Criminal Appeals overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim App. 1996), which adopted a factual sufficiency standard of review. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). The court concluded in Brooks that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt. Id. at 895. Accordingly, we review issues one and two under the Jackson standard. See Jackson v. Virginia, 443 U.S. 307 (1979). Under the Jackson standard, a reviewing court examines all the evidence in the light most favorable to the verdict and determines whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In conducting this review, the court defers to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 319, 326; Brooks, 323 S.W.3d at 899; see also King, 29 S.W.3d at 562 (review of evidence for legal sufficiency does not involve reweighing of evidence or substitution of jury's judgment).B. Applicable Law
Based on the indictment, to establish Williams's guilt, the State had to prove beyond a reasonable doubt that Williams, in the course of committing theft and with intent to obtain or maintain control of the property, intentionally or knowingly caused bodily injury to Smith by striking Smith with his fist. See Tex. Penal Code Ann. § 29.02(a)(1) (West 2011); see also id. § 31.03(a) (defining "theft" as "unlawfully appropriat[ing] property with intent to deprive owner of property."). The Texas Penal Code defines "in the course of committing theft" as conduct occurring "in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." Id.§ 29.01(1). "Bodily injury" means, in relevant part, physical pain. Id.§ 1.07(a)(8) (West 2011).C. Application of Law to Facts
Williams asserts the surveillance recordings show Smith was the aggressor and "affirmatively depict no assaultive behavior" by Williams as Smith apprehended him. Williams maintains that the recordings show "the only violence [he] even potentially used" occurred after he was apprehended when he "may have hit Smith in the eye as they struggled." Because robbery requires any violence occur during the attempt to commit theft, commission of theft, or flight after the attempt or commission of theft, Williams contends any evidence he may have hit Smith after Smith apprehended him is not sufficient to support the conviction. Contrary to Williams's assertion, however, the recordings show Williams "came at Smith" after being approached by Smith and fought with Smith prior to being handcuffed. Williams's actions were consistent with a person trying to flee and keep the stolen property and, from this evidence, the jury could have found Williams intentionally and knowingly caused bodily injury to Smith "in the course of committing theft." See Lightner v. State, 535 S.W.2d 176, 177-78 (Tex. Crim. App. 1976) ("in the course of committing theft" encompasses "the use of violence not only in the taking of the property but also in the immediate efforts of the thief to keep the stolen property."); McCall v. State, 113 S.W.3d 479, 481 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (affirming aggravated robbery conviction where appellant ran out of store with cigarettes when asked to produce identification with credit card, punched cashier who pursued him, dropped cigarettes, and attempted to run down cashier and customer); Rabb v. State, 681 S.W.2d 152, 154 (Tex. App.-Houston [14th Dist.] 1984, pet. ref'd) (affirming aggravated robbery conviction where appellant pulled gun during questioning by security guard about attempted credit card fraud and then shot at ceiling). Although the recordings do not clearly reflect Williams striking Smith with his fist, Smith testified Williams punched him and he suffered pain as a result. This testimony was corroborated by the responding officer who testified he observed redness on Smith's face consistent with Smith's description of what happened. The jury listened to the testimony, viewed the recordings, and viewed the pictures offered into evidence. By returning a verdict of guilty, the jury necessarily believed the evidence affirmatively showed Williams struck Smith with his fist prior to being apprehended, and we will not disturb that determination. See Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899. Williams's argument that the evidence is insufficient to support the conviction is without merit. We decide issues one and two against him.III. Jury Argument
In his third issue, Williams contends the trial court erred in overruling his objection to improper jury argument. Specifically, Williams complains of the following italicized portion of the prosecutor's argument:And so that's why we are asking — the defendant has had his day in court. And I could spend 15 more minutes telling you why you should find this defendant guilty, but I don't want — I don't want to waste your time, and I don't want to insult your intelligence.
There's the defendant. Here's the money he stole. He's had his day in court, and I ask you to go find him guilty, so we can get to the real issue in this case which is punishment.This portion of the argument was the conclusion of the prosecutor's rebuttal argument and, immediately after Williams's objection was overruled, the jury was dismissed for deliberations. Twenty minutes later, the jury returned its verdict of guilty. Relying on Cherry v. State, 507 S.W.2d 549 (Tex. Crim. App. 1974) and Kelly v. State, 903 S.W.2d 809 (Tex. App.-Dallas 1995, pet. ref'd), Williams argues this argument was improper and he was harmed as a result. See Cherry, 507 S.W.2d at 549 (concluding argument that "the real reason we tried this case was not to determine guilt or innocence, but to determine what kind of punishment that is going to be set in this particular kind of crime" was "totally improper"); Kelly, 903 S.W.2d at 810-11 (concluding argument that jury should find appellant "guilty and . . . get on to what really is the issue in this case, what punishment should be assessed" was improper). The State concedes the argument was improper but maintains the error was harmless.
A. Applicable Law
Because the State concedes error, we focus on whether the error was reversible. Improper argument of this type is non-constitutional in nature. See Russell v. State, 290 S.W.3d 387, 393 (Tex. App.-Beaumont 2009, no pet.). Non-constitutional error must be disregarded unless it affects an appellant's substantial rights. Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008) (citing Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000)). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). To determine whether an appellant's substantial rights have been affected, a reviewing court balances three factors: (1) the severity of the misconduct, (2) any measures adopted to cure the misconduct, and (3) the certainty of the conviction absent the misconduct. Brown, 270 S.W.3d at 572-73 (citing Martinez, 17 S.W.3d at 692-93). Further, in evaluating the severity of the misconduct, the reviewing court assesses whether the argument injected new and harmful facts or was, in light of the entire argument, extreme or manifestly unjust and willfully calculated to deprive appellant of a fair and impartial trial. Id. n. 3 (quoting Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)).B. Application of Law to Facts
Williams argues the severity of the prosecutor's misconduct was great because it is well-settled law that arguments that urge the jury to disregard its duty to deliberate guilt and to proceed to determine punishment are improper, and the prosecutor should have known that. Williams further argues that because the evidence of his guilt was "anything but overwhelming," the improper argument "propelled the jury to dispense with any deliberation on guilty so that they could 'get to the real issue . . . punishment.'" Even if the evidence to support the conviction was overwhelming, Williams argues, declaring the error harmless would encourage the State to repeat this error. We agree that arguments at the guilt-innocence stage of trial appealing to the jury that its job is to determine punishment are improper. See Cherry, 507 S.W.2d at 549; Kelly, 903 S.W.2d at 810-11. However, the record reflects the complained-of argument here followed argument (a) urging the jury to find Williams guilty based on Smith's and the officer's testimony and (b) reminding the jury of the State's burden of proof and the jury's duty to find Williams guilty if the State satisfied its burden. Moreover, although there were no curative measures by the trial court because the court overruled the objection, the complained-of argument was not extensive and constituted only a small portion of the prosecutor's argument. The focus of the prosecutor's argument was on the evidence that was introduced, the burden of proof, and the State's and jury's respective duties. Finally, given the evidence presented to the jury, we cannot conclude the jury would not have convicted Williams absent the prosecutor's argument. Viewing the argument and record as a whole, we conclude the complained-of argument did not have a substantial and injurious effect or influence on the jury. We further conclude nothing suggests declaring the error harmless will encourage the State to repeat this error. In arguing that it will, Williams relies on Kelly in which this Court concluded the error was harmful for that precise reason. Kelly, 903 S.W.2d at 812. The Kelly court noted it had before it at least two appeals in the past year alone in which the prosecutor made a similar argument. Id. Similar circumstances are not before us and we have no reason to believe the State will make such an argument again. If, however, after our decision today, the same error should occur, we believe, absent some overriding circumstances, a different conclusion may be warranted. We decide Williams's third issue against him.IV. "Benefit of Doubt Instruction"
In his fourth issue, Williams contends the trial court erred in failing to sua sponte include in its charge a "benefit of the doubt instruction." Specifically, Williams contends the court should have instructed the jury that if the jury "had a reasonable doubt as to whether [Williams] was guilty of robbery or theft, then they should resolve that doubt in favor of theft." Williams maintains this instruction was "the law 'applicable to the case'" and he was egregiously harmed by its absence in the charge.A. Standard of Review
Jury charge error is reviewed under the standard set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Under that standard, the reviewing court first determines whether error occurred. Id. (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). If error occurred and appellant objected at trial, the reviewing court then determines whether the error was "calculated to injure" the appellant's rights or, there was "some harm." Id. (citing Almanza, 686 S.W.2d at 171). If the court determines "some harm" occurred, it must reverse the conviction. Id. (citing Almanza, 686 S.W.2d at 171). If appellant did not object, the court will reverse only if the error was "fundamental" and "so egregious" that appellant was denied a fair and impartial trial. Id. The degree of harm is determined in light of the entire charge, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.B. Applicable Law
The purpose of the jury charge is to inform the jury of the applicable law and guide the jurors in applying it to the facts of the case. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). The charge must allow the jury to determine guilt in light of the evidence and the law. Id. Under article 36.14 of the Texas Code of Criminal Procedure, a trial judge "shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case[.]" Tex. Code Crim. Proc. Ann. Art. 36.14 (West 2007); Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). This duty exists even when defense counsel fails to object to inclusions or exclusions in the charge and thus requires the judge to sua sponte instruct the jury on the law applicable to the case. Taylor, 332 S.W.3d at 486. As a general rule, if evidence in a case leaves a reasonable doubt as to the grade or degree of the offense, the trial court should give the jury a "benefit of the doubt" instruction that such doubt should be resolved in the defendant's favor. See Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.-Corpus Christi 1988, pet. ref'd); see also Barrios, 283 S.W.3d at 352 ("benefit of doubt"instruction "has long been recognized in Texas law."). The purpose of this instruction is to assist the jury if it has no reasonable doubt the defendant committed an offense, but is uncertain about the degree of the offense. Benavides, 763 S.W.2d at 589; see also Shelby v. State, 724 S.W.2d 138, 139 (Tex. App.-Dallas 1987) (op. on reh'g), vacated on other grounds, 761 S.W.2d 5 (Tex. Crim. App. 1988). Failure to include a "benefit of the doubt" instruction is not harmful to the defendant, however, if the charge as a whole leaves no uncertainty as to how to resolve any doubt. Benavides, 763 S.W.2d at 589; Shelby, 724 S.W.2d at 140.C. Application of Law to Facts
Because the trial judge did not include the "benefit of the doubt" instruction and Williams did not object, we look at the record to determine whether Williams was egregiously harmed. The jury was instructed in relevant part as follows:ROBBERY CHARGE
Now, considering all the law contained in the court's charge, if you unanimously find and believe from the evidence beyond a reasonable doubt that on or about June 8, 2009, in Dallas County, Texas, the defendant, Bret Thomas Williams, did unlawfully then and there intentionally or knowingly, while in the course of committing theft and with the intent to obtain and maintain control of said property, cause bodily injury, to Thad Smith, hereinafter called complainant, bu striking complainant with defendant's fist, you shall find the defendant guilty of robbery as charged in the indictment.
If you do not so find, or if you are unable to agree, you will next consider the following:
THEFT CHARGE
Now, considering all the law contained in the court's charge, if you unanimously find and believe from the evidence beyond a reasonable doubt that on or about June 8, 2009, in Dallas County, Texas, the defendant, Bret Thomas Williams, did unlawfully, intentionally or knowingly appropriate property, namely: exercise control over property, other than real property of the value of less than $50, without the effective consent of Thad Smith, the owner of said property, with the intent to deprive the said owner of the said property, you shall find the defendant guilty of the lesser-included offense of theft in an amount of less than $50 as included in the indictment.
If you do not so find, or if you have a reasonable doubt thereof, you shall find the defendant not guilty.These paragraphs are similar to application paragraphs our Court previously concluded adequately presented to the jury the theory proposed by the "benefit of the doubt" instruction. In Shelby v. State, this Court considered a charge that included paragraphs, such as the paragraphs quoted above. The charge in Shelby advised the jury to find the defendant guilty of the greater offense only if the jury had no reasonable doubt he was guilty of that offense, and if the jury had any doubt, the jury should consider whether he was guilty of the lesser-included offense. 724 S.W.2d at 139-40. The charge further advised the jury to find the defendant guilty of the lesser offense only if it had no doubt he was guilty of that offense, and if the jury had any doubt, the jury should find the defendant not guilty. Id. at 140. This Court concluded that the paragraphs "make[] clear to the jury that any doubt as to whether the defendant is guilty of the greater offense should be resolved against a finding" that the greater offense was committed, and any doubt as to whether he is guilty of the lesser-included offense should be resolved with a not-guilty finding. Id. Because the charge in Shelby left no uncertainty as to how to resolve the doubt, the Court concluded any error in not charging the jury on the "benefit of the doubt" was harmless. Id. In arguing charge error occurred, Williams acknowledges this Court's conclusion in Shelby, but maintains because the surveillance recordings do not show him assaulting Smith and support only a finding that he is guilty of theft, the absence of the "benefit of the doubt" instruction left the jury "no vehicle to resolve any confusion" and led the jury to determine that, because he was guilty of some offense, he was guilty of robbery. We have already rejected Williams's argument, however, concerning the strength of the evidence. Accordingly, based on Shelby and the record as a whole, we conclude the court's failure to sua sponte charge the jury on the "benefit of the doubt" was not reversible error. We decide Williams' fourth issue against him.