Andrew T. Kemp v. State

Opinion issued June 24, 2004 In The Court of Appeals For The First District of Texas NO. 01-03-00571-CR ANDREW T. KEMP, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 917247 MEMORANDUM OPINION A jury convicted appellant, Andrew T. Kemp, of aggravated robbery. The trial court found the enhancement allegations in the indictment true and assessed punishment at confinement for 48 years. In four issues on appeal, appellant contends (1) the trial court erred in failing to grant a mistrial, (2) the trial court erred in failing to instruct the jury on the lesser-included offense of robbery, (3) the evidence was legally insufficient to support his conviction, and (4) the evidence was factually insufficient to support his conviction. We affirm. Facts On the morning of June 26, 2002, complainant, Jacqueline Orosco Guevara, arrived at her job as assistant manager for a Black-Eyed Pea restaurant in Houston, Texas. Pursuant to her duties, complainant prepared the daily deposit and left the restaurant to take the deposit to the bank. Shortly after she left the restaurant, complainant noticed appellant approaching her. Complainant attempted to avoid appellant by re-entering the restaurant; however, before she could re-enter, appellant grabbed her and demanded the bag containing the deposit. Complainant began to scream and briefly struggled with appellant before appellant ultimately overcame her and fled with the bag. Nirmeet Solanki, an employee at an auto parts store next to the restaurant, heard complainant’s screams as he was pulling out of his store’s parking lot. Solanki drove towards the screams in time to see appellant struggling with complainant. When appellant fled, Solanki pursued appellant in his car. Solanki’s pursuit ended precipitously, however, when appellant pulled a gun out of his pocket, held it out to show Solanki, and shook his head “no.” Appellant then escaped unimpeded. Request for Mistrial In his first point of error, appellant contends the trial court erred in denying his request for a mistrial. Specifically, appellant complains of the following testimony by one of the investigating officers: “Well, the photo we used in the photo lineup, like I said, we obtained that through [appellant’s] parole officer.” Although the trial court sustained appellant’s trial objection to the comment and instructed the jury to disregard the officer’s statement, the court refused appellant’s request for a mistrial. Appellant asserts that a mistrial was required because “the testimony that appellant had a parole officer indelibly painted him as an ex-convict and could not be cured by an instruction to disregard.” A trial court’s denial of a motion for mistrial is reviewed under an abuse of discretion standard. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). A mistrial is appropriate for only “highly prejudicial and incurable errors.” Id. Ordinarily, a prompt instruction to disregard will cure error associated with a non-responsive and improper answer. Hughes v. State, 878 S.W.2d 142, 154 (Tex. Crim. App. 1993). A mistrial is appropriate only when the improper answer is so inflammatory as to undermine the effect of the instruction. Id. In the instant case, the reference to appellant’s parole officer was isolated and unembellished. Furthermore, it was followed by a prompt instruction to disregard. We hold that the officer’s comment concerning appellant’s parole officer was not so inflammatory as to undermine the efficacy of the trial court’s instruction to disregard it. See id. We overrule appellant’s first point of error. Sufficiency of the Evidence In his third and fourth points of error, appellant contends the evidence was legally and factually insufficient to convict him of aggravated robbery. Specifically, appellant argues that the evidence was insufficient to show that the gun appellant brandished was a “deadly weapon.” A legal sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). We note that, as the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury may believe or disbelieve all or any part of a witness’s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981) (opining that “a jury is entitled to accept one version of the facts and reject another or reject any of a witness’s testimony”). We review the factual sufficiency of the evidence by reviewing all of the evidence as a whole neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a factual sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The Court of Criminal Appeals has recently stated There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex. Crim. App. Apr. 21, 2004) (footnote omitted). We must consider the most important evidence that the appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). A person commits 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. Tex. Penal Code Ann. § 29.02(a)(2) (Vernon Supp. 2004). A person commits aggravated robbery if he commits robbery and he uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03(a) (Vernon 2003). A deadly weapon is: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(a)(17) (Vernon Supp. 2004). In the instant case, the State presented evidence that appellant grabbed complainant, forced her to relinquish control of the bag containing the deposit, and fled. The State presented further evidence that, when appellant noticed he was being pursued by Solanski, appellant brandished a gun and shook his head “no.” Solanski testified that he was threatened by appellant’s act and ceased his pursuit because of it. Appellant presented no evidence indicating that the gun used in the robbery was not a deadly weapon. However, he contends that, by itself, Solanski’s testimony concerning the existence of a gun was insufficient to prove that appellant used a deadly weapon while committing the robbery. A firearm is, per se, a deadly weapon. See Tex. Penal Code Ann. § 1.07(a)(17). Although a “gun” is not necessarily a firearm, absent any specific indication to the contrary at trial, the jury should be able to make the reasonable inference, from a witness’s testimony that a gun was used in the commission of a crime, that the gun was a firearm. See Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.—Corpus Christi 1988, pet. ref’d). In the instant case, the manner of the gun’s use, as well as Solanski’s fear of the gun, suggest that it was a firearm and not merely a gun of the non-lethal variety. See Edwards v. State, 10 S.W.3d 699, 701 (Tex. App.—Houston [14th Dist.] 1999, pet. dism’d). Therefore, the jury could have reasonably inferred that the gun was a firearm—and thus a deadly weapon. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found the essential elements of aggravated robbery beyond a reasonable doubt. In doing so, we also hold that a rational trier of fact could have found that appellant used or exhibited a deadly weapon. Likewise, examining all of the evidence neutrally, we hold the proof that appellant used or exhibited a deadly weapon while committing a robbery was not so obviously weak as to undermine confidence in the jury’s determination; nor was there any contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant’s third and fourth points of error. Jury Instruction In his second point of error, appellant contends the trial court erred in failing to give a jury instruction on the lesser-included offense of robbery. Specifically, appellant avers “the only evidence regarding a weapon was Solanki’s testimony that he saw appellant take a silver ‘gun’ from his pants pocket and show it to him.” Thus, appellant concludes, a jury instruction on robbery was required because the jury could have concluded that the object was not a deadly weapon. A defendant is entitled to a charge on a lesser-included offense if (1) the lesser-included offense is included within the proof necessary to establish the offense charged and (2) there is some evidence that would permit the jury rationally to find that the defendant, if guilty, is guilty only of the lesser-included offense. Lofton v. State, 45 S.W.3d 649, 651 (Tex. Crim. App. 2001). The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). A charge on the lesser-included offense is not required when the defendant presents no evidence and no evidence otherwise raises the issue of a lesser offense. Lofton, 45 S.W.3d at 652. In some circumstances, robbery may constitute a lesser-included offense of aggravated robbery. Little v. State, 659 S.W.2d 425, 426 (Tex. Crim. App. 1983); Teague v. State, 789 S.W.2d 380, 381 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). However, appellant directs us to no evidence that would permit the jury to rationally find that he was guilty only of robbery and not aggravated robbery. Instead, to support his contention that an instruction on robbery was required, appellant relies on the absence of the gun at trial and the limited testimony concerning appellant’s use of a gun during the robbery. The actual weapon used in the commission of an offense need not be introduced into evidence if a witness is able to testify about the weapon and the manner in which it was used. See Morales v. State, 633 S.W.2d 866, 868 (Tex. Crim. App. 1982). In the instant case, Solanki testified that appellant brandished a gun; he felt threatened by appellant’s use of the gun; and he ceased his pursuit of appellant after seeing the gun. We have held above that this evidence was sufficient to establish the existence of a deadly weapon. The absence of further evidence does not, itself, constitute evidence that appellant, if guilty, was guilty only of the lesser offense of robbery. Therefore, we hold that the trial court did not err in refusing appellant’s request for a jury instruction on the lesser included offense of robbery. We overrule appellant’s second point of error. Conclusion We affirm the judgment of the trial court. Laura Carter Higley Justice Panel consists of Justices Nuchia, Alcala, and Higley. Do not publish. Tex. R. App. P. 47.2(b).