Mostiller, Phoenix A. v. State

Affirmed and Opinion filed January 16, 2003 Affirmed and Opinion filed January 16, 2003. In The Fourteenth Court of Appeals _______________ NO. 14-01-01193-CR _______________ PHOENIX A. MOSTILLER, Appellant V. THE STATE OF TEXAS, Appellee ________________________________________________ On Appeal from 232nd District Court Harris County, Texas Trial Court Cause No. 872,077 ________________________________________________ M E M O R A N D U M   O P I N I O N Appellant Phoenix Mostiller was convicted by a jury for the crime of aggravated robbery. In four points of error, appellant contends: (1) the trial court erred by admitting extraneous offense evidence because the State’s notice was fatally deficient; (2) the trial court erred in allowing the complaining witness to testify a second time after he was released from “the rule,” and heard other witness testimony; (3) the evidence is legally insufficient to support conviction; and (4) the evidence is factually insufficient to support conviction. Finding no merit in appellant’s points of error, we affirm the judgment of the trial court. Facts Appellant was the front passenger in a car driven by her friend, Sarah Hernandez. Complainant, Gerald Green, was walking alongside the street when Hernandez slowly approached him in her car. Appellant pointed a gun at Green and ordered him to give her all of his property and get into the car. Green entered the car after giving appellant his watch, ring, and wallet. Hernandez drove away and told Green that they were going to take him somewhere and kill him. Fearing for his life, Green distracted appellant and struck her in the face. A struggle ensued and appellant shot Green in the leg. Green finally disarmed appellant and forced her to let him out of the car. Houston Police Department Sergeant Jay Jansen and Officer Siro Olivares, Jr., were nearby and noticed the car stopped at an intersection for an unusually long time. Jansen could see three people inside the car and heard both male and female voices screaming. Olivares noticed the car rocking, as if a struggle was in progress. Both officers heard a gunshot from inside the car and saw Green stumble out of the rear passenger’s side of the car. He was holding a gun and walking with a limp. Olivares went to help Green. Jensen and other officers chased Hernandez when she drove away. After stopping Hernandez, officers searched the car and found a black leather jacket containing pill bottles, Green’s wallet, and a watch. They identified Green’s name on some papers in the jacket. Extraneous Offenses In her first issue, appellant complains that the following extraneous evidence was improperly admitted: (1) pill bottles police found inside the car; and (2) testimony that appellant and Hernandez drank alcohol and used drugs earlier in the evening. Appellant contends the trial court erred in admitting the above evidence during guilt/innocence because the State’s notice was fatally deficient. Specifically, appellant argues that under article 37.07, section 3(g) of the Texas Code of Criminal Procedure, the State’s notice must include the victim’s name and county where the extraneous offense occurred. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g). We review a trial court’s ruling on admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Accordingly, we will affirm the trial court’s decision if it is within “the zone of reasonable disagreement.” Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001). Similar to Rule of Evidence 404(b), section 3(g) of article 37.07 addresses the admissibility of extraneous offense evidence. Article 37.07 provides, in part, that upon a finding of guilt, evidence may be offered by either party as to any matter the trial court deems relevant to “sentencing, and the evidence is not limited to the prior criminal record of the defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a). Such extraneous offense evidence is admissible if the State gives timely notice of its intent to use that evidence in the punishment phase of trial. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g). “The Legislature’s enactment of article 37.07, section (g), limits the trial court’s discretion to admit evidence of extraneous offenses at the punishment phase.” Roethel v. State, 80 S.W.3d 276, 280 (Tex. App.—Austin 2002, no pet.). Appellant’s argument fails for two reasons. First, appellant failed to object on article 37.07, section 3(g) grounds at trial. She raises this point for the first time on appeal. At trial, appellant objected solely on Rule of Evidence 404(b) grounds. In order to preserve an issue for appeal, the trial court must have been given the opportunity to rule on the same complaint below, and appellant did not preserve error by failing to specifically object on article 37.07, section 3(g) grounds. See Trevino v. State, 991 S.W.2d 849, 854–55 (Tex. Crim. App. 1999). Second, article 37.07, section 3(g), only applies to an offer of extraneous offense evidence during the punishment phase of trial. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (entitled “Evidence of prior criminal record in all criminal cases after a finding of guilty.”) Appellant is complaining about evidence offered during guilt/innocence. Accordingly, we overrule appellant’s first point of error. Violation of Rule 614 In her second point of error, appellant contends that the trial court erred by allowing the State to recall Green for additional testimony. Green was placed under “the rule.”[1] He testified and was released from “the rule.” After giving his testimony, Green was allowed to sit in the courtroom, where he overheard testimony of other witnesses. Later, the court allowed the State to recall Green. First, we note that violation of “the rule” by a witness does not, without more, constitute error. Archer v. State, 703 S.W.2d 664, 666 (Tex. Crim. App. 1986). However, the court commits error when the questioned testimony is admitted and the complaining party is harmed. Guerra v. State, 771 S.W.2d 453, 474–75 (Tex. Crim. App. 1988). Injury or prejudice to a party occurs when: (a) the witness conferred with or heard testimony of another witness; and (b) the witness’s testimony contradicts the testimony of another witness that supports the opposing side or corroborates the testimony of another witness. Choice v. State, 883 S.W.2d 325, 327 (Tex. App.—Tyler 1994, no pet.). In the present case, appellant alleges no harm from admission of the testimony. We note that Green stated nothing new when he testified the second time. Moreover, Green did not contradict the testimony of other witnesses when he was recalled. class=Section2> His testimony was limited to a description of his medical treatment and identification of appellant. Accordingly, we find the error, if any, in allowing the State to recall Green is harmless. Additionally, appellant failed to renew her objection to Green being recalled and thus waived appellate review on the issue. When the State recalled Green the first time, appellant objected. The judge overruled the objection. However, the State then called other witnesses to the stand. After the last witness finished his testimony, the State recalled Green again. Appellant’s counsel voiced no objection. In order to preserve error, the objecting party must continue to object each time the objectionable evidence is offered. Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999); see also Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Appellant’s second point of error is overruled. Legal and Factual Sufficiency In appellant’s third point of error, she contends the evidence is legally insufficient to support conviction for aggravated robbery. In reviewing legal sufficiency of evidence, we review all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The standard is the same for both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). The jury as trier of fact is entitled to resolve any conflicts in the evidence, to evaluate the credibility of the witnesses, and to determine the weight to be given any particular evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury is free to accept or reject any or all of the evidence presented by any party, and the jury may also draw reasonable inferences and make reasonable deductions from the evidence. Benavides v. State, 763 S.W.2d 587, 588–89 (Tex. App.—Corpus Christi 1988, pet. ref’d). Our duty is not to weigh the evidence again, after reading a cold record, but to act as a due-process safeguard, ensuring only the rationality of the factfinder. Barnes v. State, 62 S.W.3d 288, 298 (Tex. App.—Austin 2001, pet. ref’d). The jury’s verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Id. Thus, if there is evidence that establishes guilt beyond a reasonable doubt and if the jury believes the evidence, we are not in a position to reverse the judgment for insufficient evidence. See Jackson, 443 U.S. at 319. Appellant is guilty of aggravated robbery if, in the course of committing theft, she: (1) threatened Green or placed him in fear of imminent bodily injury or death; and (2) used or exhibited a deadly weapon, namely, a firearm. See Tex. Pen. Code Ann. § 29.02 & 29.03 (Vernon Supp. 2001). Appellant asserts that Green provided the only testimony supporting the State’s contention that appellant intended to obtain and maintain control over Green’s property or that appellant fired the gun. Appellant does not acknowledge that the jury is free to accept or reject any or all evidence presented by any party. Benavides, 763 S.W.2d 588–89. Essentially, appellant is requesting that this court weigh the evidence and compare witness testimony. Appellant’s argument is repugnant to our standard of review for legal sufficiency. We must review all of the evidence in the light most favorable to the prosecution. Jackson, 443 U.S. at 319. Accordingly, we overrule appellant’s third point of error. In her fourth point of error, appellant contends the evidence is factually insufficient to sustain the conviction. Our review of the factual sufficiency begins with the presumption that the evidence is legally sufficient to support the judgment. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In such a review, we consider the evidence without employing the prism of “in the light most favorable to the verdict.” Id. at 129. Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Thus, in conducting a factual sufficiency review of the elements of a criminal conviction, we ask whether a neutral review, class=Section3> both for or against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination. Id. Further, in conducting our analysis, we recognize that the jury is the sole judge of the weight and credibility of the testimony and we should not substitute our judgment for that of the jury’s. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). In a factual sufficiency analysis, we defer to the jury’s findings. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Under this standard, a decision is not manifestly unjust merely because the jury resolved conflicting evidence in the State’s favor. Id. at 410. Appellant contends the evidence is factually insufficient for four reasons. She claims that only Green gave testimony that: (1) appellant pointed a gun at Green; (2) Green hit appellant in the face; (3) the car was stopped for an extended period of time; and (4) appellant fired the gun. Even if Green were the only witness who testified to the above facts, appellant’s argument fails because the jury is the ultimate judge of witness credibility. Santellan, 939 S.W.2d at 164. Apparently, the jury found Green’s testimony to be credible. The evidence is not rendered factually insufficient because the jury resolved the facts in favor of the State. Cain, 958 S.W.2d 410. Further, Officer Jansen testified that he could hear screams inside the car, and Officer Olivares testified that he could see the car rocking. The jury believed that a struggle occurred and their conclusion is not contrary to the great weight and preponderance of the evidence. Accordingly, we overrule appellant’s fourth point of error and affirm the judgment of the trial court. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed January 16, 2003. Panel consists of Justices Edelman, Seymore and Guzman. Do Not Publish — Tex. R. App. P. 47.2(b). [1] At the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of (1) a party who is a natural person; or (2) an officer or employee of a defendant which is not a natural person designated as its representative by its attorney; or (3) a person whose presence is shown by a party to be essential to the presentation of his cause; or (4) the victim, unless the victim is to testify and the court determines that the victim’s testimony would be materially affected if the victim hears other testimony at the trial. Tex. R. Evid. 614.