Gilford, Coty Demond v. State

Affirmed and Memorandum Opinion filed February 19, 2004 Affirmed and Memorandum Opinion filed February 19, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00506-CR ____________ COTY DEMOND GILFORD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 945,073 M E M O R A N D U M   O P I N I O N Appellant Coty Demond Gilford was found guilty of the offense of aggravated robbery, and the jury sentenced him to thirty years= confinement in the Texas Department of Criminal Justice, Institutional Division. In four points of error, appellant claims (1) the evidence at trial was legally and factually insufficient to convict him of aggravated robbery; (2) the trial court erred in admitting a videotaped statement of him at trial; (3) the trial court erred in admitting inadmissible hearsay statements during the trial; and (4) the trial court committed charge error by authorizing the jury to convict him under a theory not alleged in the indictment. We affirm. I. Background On September 17, 2002, a young black male robbed Friday Ikpe as he worked the night shift in a convenience store in southeast Houston. In court, Ikpe identified appellant as the young male who robbed him. Ikpe testified that appellant asked him to make change for a dollar, and when Ikpe opened the register, appellant told him, AI have a knife. Stand back.@ When appellant attempted to take money out of the register, Ikpe tried to close the register on appellant=s hands. Appellant pushed Ikpe back, came around the side of the counter, and the two began struggling over possession of the money. Appellant bit, kicked, and punched Ikpe during their confrontation. After grabbing some money, appellant ran out of the store. Ikpe chased appellant out of the store, but stopped when witnesses outside of the store told Ikpe to stop because appellant=s partner was Asearching through the car.@ The witnesses wrote down the license plate number of the car involved in the robbery before it left the scene. Ikpe testified that, although he did not seek medical treatment for the bruises he sustained from appellant=s beating of him, he felt threatened and in fear during the robbery that he might be seriously injured or killed. The incident was captured by surveillance video equipment inside the convenience store. However, the knife cannot be seen on the surveillance tape. II. Sufficiency of the Evidence In his first point of error, appellant contends the evidence is legally and factually insufficient to support the trial court=s affirmative finding that appellant used or exhibited a deadly weapon during the commission of the offense for which he was convicted. Specifically, appellant claims the evidence is insufficient to prove that he used a knife or, if a knife was used, that the knife in question was a deadly weapon. We affirm the trial court=s finding. In conducting a legal sufficiency review, a reviewing court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Rather, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Id.; Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Id. A jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The reviewing court will examine the entire body of evidence; if any evidence establishes guilt beyond a reasonable doubt, and the fact-finder believes that evidence, the appellate court may not reverse the fact-finder=s verdict on grounds of legal insufficiency. See Jackson, 443 U.S. at 307. In reviewing factual sufficiency, we do not view the evidence Ain the light most favorable to the prosecution.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Instead, we ask Awhether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or, the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000). The State charged appellant with aggravated robbery, alleging in the indictment that appellant did during the robbery Ause and exhibit a deadly weapon, to wit: a knife@ (emphasis altered). The jury found appellant guilty of aggravated robbery, as charged in the indictment, and the trial court entered an affirmative finding of a deadly weapon. An affirmative finding of the use of a deadly weapon may be made when the State establishes that a deadly weapon was used or exhibited during the commission of a felony offense or the flight therefrom and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. Tex. Code Crim. Proc. Ann. art. 42.12, ' 3g(a)(2) (Vernon Supp. 2004). A[I]f the indictment by allegation specifically places the issue before the trier of fact (i.e. >.... by stabbing him with a knife, a deadly weapon ....=), then an affirmative finding is de facto made when the defendant is found guilty >as charged in the indictment.=@ Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). In addressing this point of error, we employ the same standards of review discussed above. A knife is considered a deadly weapon if used in a manner capable of causing death or serious injury. Tex. Pen.Code Ann. ' 1.07(a)(17)(B)(Vernon 1994) (defining deadly weapon as Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury@); McCain v. State, 22 S.W.3d 497, 502B03 (Tex. Crim. App. 2000) (finding knife to be a deadly weapon). In ascertaining whether a particular knife is a deadly weapon by its actual or intended usage, we consider several factors articulated by Texas courts, including: (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use; (3) the nature or existence of inflicted wounds; (4) the testimony of the knife=s life‑threatening capabilities; and (5) the physical proximity of the accused and the victim. See Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991); Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d). Though injuries are among the factors to be weighed, wounds need not be inflicted before a knife can be found to be a deadly weapon. Miller v. State, 846 S.W.2d 365, 369 (Tex. App.CHouston [14th Dist.] 1992, no pet.). Where the victim testifies that he was in fear of serious bodily injury or death, a verbal threat by the accused is not required for the fact-finder to conclude that threats were actually made. Tisdale v. State, 686 S.W.2d 110, 115 (Tex. Crim. App. 1984) (on rehearing). Moreover, merely showing a knife to a victim constitutes Ause@ of the knife under the statute. See id. at 114-15 (holding that Awhere one person uses or exhibits a knife during the course of a robbery in order to threaten or place another in fear of imminent bodily injury or death, a rational trier of fact could find beyond a reasonable doubt that the knife was a deadly weapon in the manner of its use or intended use@). In support of his argument, appellant contends that (1) no knife is visible on the surveillance video so the only evidence that appellant had a knife came from the testimony of Ikpe; (2) Ikpe was not wounded by the knife; (3) the assailant and Ikpe were separated by a counter; (4) the assailant never pointed the knife at Ikpe; and (5) Ikpe described the knife as a kitchen knife that was not very long. Ikpe testified that appellant asked him to make change for a dollar, and when Ikpe opened the register, appellant told him, AI have a knife. Stand back.@ Ikpe said he only saw the knife for a second; appellant held it down around his waist, keeping it close to his own body. Ikpe said it looked like a kitchen knife with a black handleCit was not very long. Ikpe testified he felt threatened and in fear during the robbery that he might be seriously injured or killed. Houston Police Department (AHPD@) Officer William Cowles, who investigated this case, testified that, based on his experience as a police officer, the knife, as described by Ikpe, would be a deadly weapon. HPD Officer Kevin Morgan noted that, because of the angle of the surveillance camera and the overall quality of the tape, he was unable to see on the video whether appellant had a knife during the robbery. Although appellant said during his confession that he did not use a knife during the robbery, the jury was the judge of the credibility of his testimony and was free to reject or accept his testimony. See Jones v. State, 944 S.W.2d 642, 647 (1996), cert. denied, 522 U.S. 832 (1997). Accordingly, the jury could choose to believe Ikpe=s testimony that appellant did have a knife. Moreover, presentment of the knife within reaching distance of Ikpe, coupled with the fear of Ikpe, are sufficient to constitute a threat by the accused and use of the knife as a deadly weapon. See Tisdale, 686 S.W.2d at 115 (stating the jury was fully warranted in concluding from the victim=s testimony that defendant intended to use the knife to cause her serious bodily injury or death when defendant showed the victim a knife during a robbery). Viewing the evidence in a light most favorable to the verdict, we conclude that a reasonable trier of fact could have found that appellant used or exhibited a deadly weapon during the robbery beyond a reasonable doubt. We conclude the evidence is legally sufficient to justify an affirmative finding that appellant used or exhibited a deadly weapon during the commission of the offense. For the same reasons, we conclude the evidence is factually sufficient to support the trial court=s affirmative finding of a deadly weapon. We overrule appellant=s first point of error. III. The Confession In his second point of error, appellant argues the trial court committed reversible error in denying the motion to suppress his confession. He contends the statement was not freely and voluntarily made because it was the product of improper inducements. In support of this argument, appellant alleges that officer Morgan admitted at trial that he falsely led appellant to believe that if he confessed, he would be charged with robbery rather than aggravated robbery. Additionally, appellant contends he confessed because he feared his girlfriend would be charged with the robbery if he did not confess. We find the trial court did not abuse its discretion in denying appellant=s motion to suppress. At a hearing on a motion to suppress evidence, the trial court is the sole judge of the weight and credibility of the evidence and the trial court=s finding may not be disturbed on appeal absent a clear abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). In reviewing a trial court=s ruling on a motion to suppress, we afford almost total deference to the trial court=s determination of the historical facts that the record supports, especially when the trial court=s findings turn on an evaluation of a witness= credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, we review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. When the voluntariness of a confession is challenged, the trial court must make an independent determination in the absence of the jury as to whether the statement was voluntarily made. Tex.Code Crim. Proc. Ann. art. 38.22, ' 6 (Vernon 1979); Jackson v. Denno, 378 U.S. 368, 380 (1964). At this hearing, the State has the burden under the Fifth and Fourteenth Amendments of proving by a preponderance of the evidence that the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489 (1972); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). The statement of an accused may be used against him if it appears it was freely and voluntarily made without compulsion or persuasion. Tex.Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). A statement is involuntary if there was official, coercive conduct of such a nature that any statement obtained was unlikely to have been the product of an essentially free and unconstrained choice. Alvarado, 912 S.W.2d at 211. Before a promise will render a confession inadmissible, it must be shown that the promise induced the confession. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). In order to induce the confession, the promise must be (1) positive; (2) made or sanctioned by someone in authority; and (3) of such an influential nature that a defendant would speak untruthfully in response thereto. Id. Voluntariness must be determined by considering the totality of the circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). Here, the trial court=s ruling at the suppression hearing was based on its evaluation of the credibility and demeanor of appellant and officer Morgan. Appellant testified at the hearing that, prior to giving the statement contained on the videotape, officer Morgan talked about the charge, the ranges of punishment, and how many people were involved in the robbery. Specifically, appellant said officer Morgan informed him that, because he had not seen a knife on the videotape, appellant was only facing a simple robbery charge. Appellant said officer Morgan told him that, because there were two people in the car at the time of the robbery, Asomebody had to fess up.@ Appellant believed this statement to mean that if he did not confess, the officer was going to arrest his girlfriend. Appellant said he confessed because of the statements made by officer Morgan. However, officer Morgan insisted he did not lead appellant to believe that, because he had not seen a knife on the tape, if appellant confessed, he would only be charged with robbery. Officer Morgan explained to appellant the differences in the ranges of punishment between robbery and aggravated robbery, noting that the aggravating factor was the use of a weapon. Officer Morgan said he informed appellant that his explanation of the incident was different than what was recorded in the offense report and he told appellant that he would present those facts to the district attorney, but said that ultimately it would be the district attorney who would make a decision as to what charges to file against appellant. Officer Morgan said he did not coerce or threaten appellant, did not cause him any physical harm or discomfort, and did not promise appellant anything in exchange for his statement. Officer Morgan also denied making any statements to appellant regarding his girlfriend. Officer Morgan testified he asked appellant if he wanted to give a voluntary statement about his involvement in the robbery and appellant indicated he did. Officer Morgan prepared the video equipment and recorded a statement from appellant. At the beginning of the recorded interview, officer Morgan read appellant his Miranda rights, and appellant agreed to waive his rights and speak with the officer. As the sole fact-finder and judge of the witnesses= credibility and weight of the evidence, the trial court could choose to believe officer Morgan=s version of events. Thus, viewing the evidence in its totality, the trial court did not abuse its discretion in denying appellant=s motion to suppress. Appellant=s second point of error is overruled. IV. The License Plate Number In his third point of error, appellant contends the trial court erred by admitting testimony from HPD officers concerning the license plate number, make, model, and color of the automobile involved in the robbery.[1] Appellant argues that this testimony was inadmissible hearsay and that he was harmed by its admission into evidence because that information provided the only link between him and the robbery. We hold the trial court did not abuse its discretion in admitting officers Shawn Palin=s and Cowles=s testimony regarding the vehicle. Officers Palin and Cowles testified that two witnesses to the robbery provided them with the license plate number of the vehicle involved in the robbery and a description of the car. Ikpe stated that the two witnesses wrote down the license plate number of the vehicle involved with the robbery before it left the scene. The jury heard testimony concerning the license plate number, the identity of the registered owner of the vehicle, and the year and make of the vehicle as shown in the registration records. We review a trial court=s decision to admit evidence for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Santellan v. State, 939 S.W.2d 155, 168B69 (Tex. Crim. App. 1997). Where the trial court=s evidentiary ruling is within the Azone of reasonable disagreement,@ there is no abuse of discretion and the reviewing court will uphold the trial court=s ruling. Id. at 169. The Court of Criminal Appeals has said that a trial court=s decision will be sustained if it is correct on any theory of law applicable to the case, especially with regard to the admission of evidence. McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997). At the outset, we note that the admission of inadmissible hearsay constitutes nonconstitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Therefore, we must disregard the error unless it affected appellant=s substantial rights. See Tex.R.App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury=s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Hearsay is a statement, other than one made by the declarant while testifying at trial or a hearing, offered in evidence to prove the truth of the matter asserted. Tex.R.Evid. 801(d). Thus, a statement which is not offered to prove the truth of the matter asserted, but is offered for some other reason, is not hearsay. Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992). Out‑of-court statements offered to show how a person became a suspect are not hearsay. Id.; see also Dinkins v. State, 894 S.W.2d 330, 347B48 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 832 (1995) (holding that an appointment book and application form containing the defendant=s name were not inadmissible hearsay because they were admitted to explain how the defendant became a part of the police investigation). In Jones, an officer testified that out‑of‑court statements implicated the defendant and were the basis for the defendant becoming a suspect and ultimately led to his arrest. 843 S.W.2d at 499. The court held the extrajudicial statements were not inadmissible hearsay because they were admitted not to prove the truth of the matter asserted, but to explain how the defendant was a suspect. Id. In this case, the statements of officers Palin and Cowles were not offered to prove a vehicle with the license plate number provided by the witnesses was definitively used during the robbery. Instead, these statements were offered to show how appellant became a part of the police investigation. The officers testified that eyewitnesses to the robbery provided the police with the license plate number of the car involved in the robbery. Officer Cowles spoke to Natoya Ranier, the daughter of the vehicle=s registered owner, as a result of checking the registration of the vehicle. Ranier told officer Cowles that her boyfriend, the appellant, used the car on the date of the robbery. After being shown the surveillance tape of the robbery, Ranier identified appellant as the assailant in the tape. At trial, Ranier denied making either of these statements to officer Cowles. However, officer Cowles testified that, from the information given to him by Ranier, he was able to Adevelop@ appellant as a suspect. Officer Cowles flagged the license plate number in an effort to locate the suspect. Another HPD officer testified that he stopped a car with the same license plate number for traffic violations, and after being informed of the flag on the car during the traffic stop, contacted the investigations division. After HPD was able to confirm appellant was in custody, officer Morgan spoke with appellant about the robbery. Thus, the license plate number was not introduced into evidence to prove the truth of the matter asserted by the witnesses to the robbery; rather, it was introduced to demonstrate how HPD came to regard appellant as a suspect and how it ultimately apprehended him. Accordingly, appellant=s third point of error is without merit. Even if the statements were offered to prove the truth of the matter assertedCand were not used to show the development of appellant as a suspectCthe State correctly points out that appellant did not demonstrate his substantial rights were affected by the admission of the testimony. To support the argument that his substantial rights were affected, appellant contends that the only link between him and the robbery was the purported inadmissible statements of witnesses at the scene. As previously mentioned, the proper test for determining whether the admission of inadmissible hearsay evidence constitutes reversible error is whether a substantial right of the defendant was affected. A substantial right is not affected if an appellate court, after examining the record as a whole, has A>fair assurance that the error did not influence the jury, or had but a slight effect=@ on the jury=s deliberations. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (quoting Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000)). In this case, in addition to information about the license plate, the jury (1) heard testimony from officer Cowles regarding Ranier=s identification of appellant in the surveillance tape of the robbery; (2) saw the videotaped confession of appellant; and (3) observed Ikpe identify appellant in court as his assailant during the robbery. Given the record as a whole, we find that the admission of the testimony concerning the license plate would have had but a slight effect, if any, on the jury=s decision. Thus, appellant has failed to demonstrate a substantial right was affected. We overrule appellant=s third point of error. V. The Charge In his fourth point of error, appellant alleges the trial court erred by authorizing the jury to convict him of the lesser-included offense of robbery under a theory not alleged in the indictment. Appellant admits he did not object to the jury charge at trial, but contends he was egregiously harmed by the error, and thus the verdict should be reversed. The State argues that, because the jury convicted appellant of aggravated robbery, they never reached the complained-of language in the lesser-included offense. The charge given to the jury by the trial court provided for a conviction of aggravated robbery based solely on the theory presented in the indictment: that appellant did intentionally or knowingly threaten or place Ikpe in fear of imminent bodily injury or death, and did then and there exhibit a deadly weapon, a knife. The trial court also instructed the jury on the lesser-included offense of robbery. It is in this portion of the charge that the trial court included the language complained-of by appellant. The language permitted the jury to find appellant guilty of robbery if they found that appellant, while in the course of committing theft, did intentionally or knowingly cause bodily injury to another, by pushing Ikpe with his handsCa theory not alleged in the indictment. Because we agree with the State that the error, if any, is not egregious, we need not address whether the instruction was erroneous. See Clark v. State, 717 S.W.2d 910, 918 (Tex. Crim. App. 1986) (A>When the jury found that the appellant was guilty of criminal attempt to commit murder it had no occasion to deliberate whether the appellant was guilty of the lesser included offense . . . . The errors in the charge on the lesser included offense, for which the appellant was not convicted, could not have misled the jury as to constitute fundamental error.=@) (quoting and adhering to the logic in Thomas v. State, 587 S.W.2d 707, 708B09 (Tex. Crim. App. 1979)). In this case, the jury found appellant guilty of aggravated robbery, which means the jury convicted appellant under a theory alleged in the indictment. Because the jury convicted him of the greater offense, the question of charge error on the lesser-included offense is Aessentially academic.@ See Saunders v. State, 913 S.W.2d 564, 570 (Tex. Crim. App. 1995) (stating the Court of Criminal Appeals has endorsed this mode of analysis under Almanza and noting A>there are some flagrant errors so patently not calculated to injure the rights of an accused that much of an Almanza review becomes redundant=@ (quoting Clark, 717 S.W.2d at 921 (Clinton, J., concurring))). Accordingly, we overrule appellant=s fourth point of error. Having overruled all of appellant=s points of error, we affirm the trial court=s judgment. /s/ Leslie Brock Yates Justice Judgment rendered and Opinion filed February 19, 2004. Panel consists of Justices Yates, Hudson, and Fowler. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Contrary to implications in appellant=s brief, the jury was instructed to disregard the color of the car as provided by the witnesses after the trial court sustained an objection to the admission of such testimony.