Bobby Cleophus Webster, Jr. v. State of Texas

Opinion filed July 24, 2008 Opinion filed July 24, 2008 In The Eleventh Court of Appeals __________ No. 11-07-00064-CR __________ BOBBY CLEOPHUS WEBSTER, JR., Appellant V. STATE OF TEXAS, Appellee On Appeal from the 350th District Court Taylor County, Texas Trial Court Cause No. 7800D M E M O R A N D U M   O P I N I O N The jury found Bobby Cleophus Webster, Jr., guilty of aggravated robbery. The trial court assessed punishment at eight years confinement in the Texas Department of Criminal Justice, Institutional Division. In three points of error, appellant argues that the trial court erred (1) in failing to grant his request for a mistrial during jury argument, (2) in failing to quash the venire, and (3) in failing to sustain his objection to the prosecutor giving his personal opinion as to appellant=s guilt during closing argument. We affirm. Background Facts Erica Rios was working the 10:00 p.m. to 7:00 a.m. shift at a convenience store. When she started toward the front of the store, appellant appeared in front of her holding a knife. Appellant was wearing blue jeans, a hat, and a coat. He had facial hair and wore glasses. Appellant grabbed Rios by the back of her neck and shoved her to the front of the cash register. Rios described the knife as a hunting knife with a blade of four to five inches that was capable of causing death or serious bodily injury. At appellant=s command, Rios opened the cash register, and appellant grabbed all of the paper money in the register. After appellant left, Rios called the police. Rios told the police officer that she had seen appellant the night before in the store. She had not heard the door bell go off and was surprised when appellant Apopped up from the candy aisle.@ She got a good look at appellant then because he was only about a foot from her. Appellant was wearing the same baseball cap and glasses that he was wearing the following night when he robbed the store. Rios testified that, a few days earlier, the store had been subjected to a beer theft. Detective Will Ford of the Abilene Police Department developed a photographic lineup with the suspect in the beer theft. Rios said that she did not recognize anyone in that lineup. Two days later, Detective Ford developed a lineup that included appellant=s picture and his characteristics. Rios immediately identified appellant in the lineup, and she later identified him in court. Appellant=s defense was that this was a case of mistaken identity. The jury, however, believed Rios and found appellant guilty of aggravated robbery. Appellant=s Request for Mistrial Appellant first argues that the trial court should have granted his motion for mistrial when the prosecutor made the following jury argument: She didn=t ask to be a victim. She didn=t ask to be robbed. But she was. She did everything right. She went and locked the door. She called the police. She cooperated with the police. She did everything they asked her to do. She came to court when we asked them and gets to be rung around and victimized again basically in [the] courtroom. Appellant objected, stating that the prosecutor was striking Athe [appellant] over shoulders of counsel that - - he=s saying that [appellant=s counsel] victimized her.@ The trial court sustained the objection and instructed the jury to disregard the prosecutor=s comment. The trial court then denied appellant=s motion for a mistrial. When a trial court denies a motion for mistrial, we review that denial for an abuse of discretion. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). Only highly prejudicial and curable errors will necessitate a mistrial. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Appellant relies on Villarreal v. State, 860 S.W.2d 647 (Tex. App.CWaco 1993, no pet.), for his contention that the prosecutor=s argument was so extreme and manifestly improper that its prejudicial effect could not reasonably be removed from the minds of the jurors by the instruction to disregard. We disagree. In Villarreal, the prosecutor stated in his argument that the defendant had not only raped the ten-year-old victim but had also forced the victim to come to the courtroom to testify in front of a bunch of strangers. The Villarreal court held that the prosecutor=s statement attempted to impose a penalty on the defendant=s constitutional right to have a jury trial and to confront witnesses against him. In the case before us, the prosecutor apparently was attempting to reply to appellant=s closing argument that Rios had been mistaken in her identity of appellant because of the trauma of the experience and her hysteria. Appellant=s counsel had just stated that A[s]he=s hysterical@ and that her paranoia caused delusional thinking. The prosecutor was referring to the argument of appellant=s counsel and the ordeal of the judicial process. See Taylor v. State, 987 S.W.2d 597, 598-600 (Tex. App.CTexarkana 1999, pet. ref=d). A response to opposing counsel=s argument attacking the credibility of a witness is an appropriate jury argument. Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992). The prosecutor should not have made the statement as it was phrased, but the court=s instruction to disregard corrected the error, if it was error. See DeBolt v. State, 604 S.W.2d 164, 169 (Tex. Crim. App. 1980). The argument was not so extreme or manifestly improper that appellant was deprived of a fair trial. Appellant=s first point of error is overruled. Appellant=s Motion to Quash the Venire Appellant=s second point of error asserts that A[t]he trial court erred in failing to quash the venire when a potential juror stated in the presence of the other jurors that he, a jail guard, had dealt with the Defendant before.@ Appellant did not develop this argument for quashing the venire or cite any authorities. When an appellant raises a point of error without citation of authorities or argument, nothing is presented for appellate review. Garcia v. State, 887 S.W.2d 862, 876 (Tex. Crim. App. 1994); State v. Gonzalez, 855 S.W.2d 692, 697 (Tex. Crim. App. 1993). Appellant has waived this argument. Appellant, however, does present a second reason for why the trial court should have quashed the venire. During voir dire, the prosecutor talked about inferring intent from a party=s actions. At one point, appellant objected on the ground that the prosecutor was changing the burden of proof from being beyond a reasonable doubt to AI think he meant to do [the offense].@ The trial court overruled appellant=s objection. Appellant did not move to quash the venire after his objection was overruled. The record does not support appellant=s argument that the prosecutor was attempting to mislead the venire as to the burden of proof. The prosecutor was explaining and giving examples of how we infer a person=s intent by observing their actions. The prosecutor wanted to find out if any members of the venire would be uncomfortable in determining Aintentionally@ and Aknowingly@ from a person=s actions. The trial court did not err in overruling appellant=s objection. A trial court has broad discretion over the process of selecting a jury, and an appellate court will not disturb a trial court=s ruling absent an abuse of discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). During voir dire, the trial court instructed the venire several times that the State had to prove its case beyond a reasonable doubt. The venire members were, in effect, instructed that any inference of intent they made from a person=s actions would have to be beyond a reasonable doubt. Appellant=s second point of error is overruled. Appellant=s Objection that the Prosecutor Gave his Personal Opinion on Guilt In appellant=s third point of error, he contends that the trial court erred in failing to sustain his objection when the prosecutor gave his personal opinion as to appellant=s guilt. Appellant refers to the prosecutor=s final argument to the jury when the prosecutor stated, AAnd I believe what we have today is an aggravated robbery.@ We disagree with appellant=s contention. The prosecutor was reviewing the charge and the various elements required for the offenses of theft, robbery, and aggravated robbery. After talking about the elements of each, the prosecutor then stated, AAnd I believe what we have today is an aggravated robbery. You are going to get a charge - - @ At that point, appellant expressed his objection, which the trial court overruled. The prosecutor=s statement was a reasonable inference from the evidence that had been presented. Rios testified that appellant was holding a knife when he threatened her and robbed the store. Prosecutors and defense counsel may argue all inferences that are fairly, reasonably, and legitimately drawn from the facts in evidence. Griffin v. State, 554 S.W.2d 688, 690 (Tex. Crim. App. 1977). Appellant=s third point of error is overruled. This Court=s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE July 24, 2008 Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J.