Dumes, Sam v. State

Affirmed and Memorandum Opinion filed January 20, 2005 Affirmed and Memorandum Opinion filed January 20, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-03-01241-CR ____________ SAM DUMES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 357th District Court Harris County, Texas Trial Court Cause No. 936,202 M E M O R A N D U M  O P I N I O N A jury convicted appellant of the felony offense of aggravated robbery and assessed punishment at confinement for sixty-three years and twelve days in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine. In two points of error, appellant argues (1) the trial court erred during the punishment phase in sustaining the prosecutor=s objection to defense counsel=s argument concerning appellant=s age, and (2) the evidence is factually insufficient to support the finding of guilt. We affirm. Factual Background The following evidence was presented during appellant=s aggravated robbery trial. The complainant testified that on the evening of November 20, 2002, he was working as a pizza deliveryman for Pizza Time. At about 6:10 p.m., Pizza Time received a phone call placing an order for a pizza to be delivered to 7272 Regency Square Court, a townhouse located about three minutes away from Pizza Time. Around 7:10 p.m., the complainant arrived at 7272 Regency Square Court with the pizza. As he was knocking on the door, appellant walked by him. Appellant then walked back towards the complainant, put a gun to his head, and said, AGive me the money.@ The complainant told appellant he did not have any money. Appellant told the complainant he would shoot him, and he hit the complainant three times with the gun and continued to ask for money. At one point, appellant reached into the complainant=s back pocket and threw business cards the complainant kept in his pocket to the ground. When the complainant bent down to pick up the cards, appellant walked over to the complainant=s car. The complainant=s wallet was in his car. The complainant followed appellant to the car and grabbed appellant. After a brief struggle, appellant bit him. The complainant was bleeding, and he let go of appellant, who ran away. The complainant was not sure what happened to the gun. The complainant saw a man nearby, and he asked him for help. The unidentified man appeared to be a security guard and may have taken the gun. After the incident, the complainant drove back to Pizza Time, and his boss called the police. The complainant speaks only a little English. He relayed the information to the police with the help of others.[1] In January 2003, the complainant viewed a photo spread the police showed him and identified appellant as the person who had pulled the gun on him. The complainant also stated he had seen appellant several times before. Appellant patronized the gas station located in the same shopping center as Pizza Time. Officer Clifford Jackson, a patrol officer with the Houston Police Department, testified he was dispatched to Pizza Time at 7:29 p.m. on November 20, 2002, and arrived at 7:38 p.m. When he arrived, he saw the complainant being treated by paramedics. He noticed the complainant was bleeding from the left side of his head and had a swollen face, an injury to the upper nose, and a bite mark on his lower right arm. The officer attempted to question the complainant, but there was a language barrier. Someone assisted Officer Jackson with interpreting the officer=s questions to the complainant. The complainant told him what happened and described his attacker. The complainant relayed that he was struck with a firearm two to three times and was assisted by a security guard or some person who picked up the gun. Officer Jackson did not find out any information about the unidentified man the complainant said he saw after the assault. Rachel Perez testified appellant was her boyfriend in November 2002. Appellant was living with her in an apartment located at Regency Square Apartments at that time. Rachel testified that on November 20, 2002, appellant called her at work and told her he had a flat tire while driving Rachel=s car. Rachel called her aunt, Dolores Perez, to help him. After 6:00 p.m. that same day, Rachel went with Dolores and appellant to fix the flat tire on her car. Rachel was not sure of the exact time or how long it took. Sergeant Sonny Wright, a robbery detective with the Houston Police Department, investigated the complainant=s case. During his investigation of the case, he received information on a certain phone number and investigated the phone number. The phone records for the number were subpoenaed, and he learned Rachel was the subscriber. The records listed an incorrect driver=s license number and address for Rachel. Because Dolores Perez=s number was listed as a number called in the phone records, Sergeant Wright called Dolores to obtain contact information for Rachel. Dolores provided a description of Rachel=s boyfriend, appellant, that matched the complainant=s description of his attacker. Sergeant Wright obtained a photo of appellant and put it in a photo spread. The complainant identified appellant in the photo spread as the man who robbed him. Dolores Perez testified that around 1:00 p.m. on November 20, 2002, Rachel called and asked her to pick up appellant and her son, who were stranded on the highway with a flat tire. Dolores picked them up, and they went to purchase a new tire for Rachel=s car. They planned to go back later to fix the tire after Rachel got off work. Around 7:00 p.m. that evening, Rachel called Dolores and asked her to pick her and appellant up to go fix the tire. Dolores= phone records show a call between Dolores and Rachel at 7:11 p.m. on November 20. Rachel=s apartment was a ten-minute drive from Dolores= home. Dolores testified she picked them up around 7:20 p.m. or 7:25 p.m. to go fix the tire. Jiannong Wang, a delivery driver familiar with the area where the robbery occurred, testified it would take five minutes for someone to walk from 7272 Regency Square Court, where the complainant was robbed, to the apartments at 7222 Bellerive, where appellant lived, and three minutes to run the distance. Appellant did not testify. Discussion I. Closing Argument During Punishment In point of error one, appellant argues the trial court erred in sustaining the State=s objection to defense counsel=s closing argument during punishment that appellant Ais a young man@ who Ajust turned twenty.@ Appellant claims the jury argument was permissible because the State=s own punishment evidence specifically included appellant=s birth date, and a reasonable deduction of appellant=s age could be drawn from his date of birth. Appellant argues the error was harmful because any variation in the presentation of the evidence would likely have altered appellant=s sentence because of the unusual precision with which the jury determined punishment. The following is an excerpt of defense counsel=s closing argument during the punishment phase of trial, the State=s objection to the argument, and the trial court=s ruling: Defense counsel: Also the question is how do you look at him [appellant] as an individual? Because really, it=s all about him. It=s not about me and it=s not about [the prosecutor], the Judge, or even about yourself. It=s about Dumes. Dumes is a young man. He just turned 20. Prosecutor: I object. That=s outside the record. Court: Sustained. Defense counsel: Dumes is a young man and we also know that he=s not the smartest guy that=s ever walked into the courtroom. I mean, he robbed the same guy twice. You need to kind of take that into account, his intelligence. But ultimately, you=ve got to resolve what you=re going to do based on the facts as you determine those facts to be. We all want somebody to pay when someone is robbed or injured. But make sure that the person that pays is the right person. . . . . Although the trial court sustained the State=s objection, the court did not instruct the jury to disregard defense counsel=s statement. Appellant=s counsel did not object to the court=s ruling and did not state on the record what further argument, if any, he would have made had the court not sustained the State=s objection. See Tex. R. App. P. 33.2 (outlining procedure for formal bills of exception). No reversible error is committed where counsel fails to object or put on the record what he would have argued if the court had not imposed the limitation on argument. See Ramirez v. State, 815 S.W.2d 636, 648 (Tex. Crim. App.1991) (holding no error presented where the appellant failed to indicate in the record what attempted demonstration he was prevented from doing); Price v. State, 870 S.W.2d 205, 209 (Tex. App.CFort Worth 1994), aff=d on other grounds, 887 S.W.2d 949 (Tex. Crim. App. 1994) (AWhere the record does not fully demonstrate to the reviewing court what counsel would have argued but for an objection, no demonstration of harmful error is made.@). Appellant did not indicate in the record what argument he would have made and, failing to do so, he did not properly perfect this point for appellate review. Despite appellant=s procedural default, we address the merits of the point of error. Permissible jury argument falls within one of four general categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. Coleman v. State, 881 S.W.2d 344, 358 (Tex. Crim. App. 1994); Torres v. State, 92 S.W.3d 911, 920 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). In this case, one of the documents admitted into evidence, a prior judgment against appellant, included appellant=s birth date. Therefore, evidence existed in the record to substantiate defense counsel=s argument. Appellant=s age was a reasonable deduction from this evidence, and the trial court erred in sustaining the State=s objection to defense counsel=s argument. Appellant asserts the trial court=s error denied him the right to counsel and complains the trial court=s ruling was harmful because of Athe unusual precision with which the jury determined punishment.@ Appellant contends Aany variation in the presentation of the evidence would have likely altered [the jury=s] sentence.@ Because appellant argues he was deprived of his right to counsel, we will review the error under the standard for Aconstitutional error.@[2] See Tex. R. App. P. 44.2(a); Lemos v. State, 130 S.W.3d 888, 892B 93 (Tex. App.CEl Paso 2004, no pet.). Where the appellate record in a criminal case reveals constitutional error, we must reverse the judgment of conviction unless we determine beyond a reasonable doubt the error did not contribute to the conviction. Id. During the punishment phase, the State presented witnesses who testified to the following: (1) appellant robbed a second food deliveryman, Jiannong Wang, twice in the same complex on November 8 and November 14, 2002; (2) appellant had been detained for possession of crack cocaine; (3) appellant tested positive for PCP and marijuana while on bond for the present offense; and (4) appellant fled when he discovered that his bond likely would be revoked due to the positive drug testing results. The State also introduced evidence appellant previously had been convicted of burglary of a building, evading detention or arrest, burglary of a motor vehicle, and two theft offenses. During closing arguments, the prosecutor argued to the jury that a fifty-year sentence would be appropriate. Appellant did not introduce any evidence during punishment. During closing arguments, defense counsel argued to the jury that it must consider the entire range of punishment for aggravated robbery. He also discussed appellant=s past criminal history and attacked Wang=s credibility. Additionally, defense counsel urged the jury to consider appellant=s youth and his intelligence in assessing punishment. The evidence introduced of appellant=s prior convictions and the aggravated nature of this offense attest to appellant=s propensity to commit crimes and support the punishment assessed. The State did not request an instruction to disregard defense counsel=s argument regarding appellant=s age, and defense counsel twice argued to the jury that appellant Ais a young man.@ Evidence of appellant=s age was admitted in evidence as part of a prior judgment for delinquent conduct, and the trial court instructed the jurors they could consider the evidence before them in rendering a sentence. The record shows defense counsel had ample opportunity to argue his case to the jury, and he urged the jury to consider the entire range of punishmentCfive years to ninety-nine years or life in prison. The range of punishment for aggravated robbery is five years to ninety-nine years or life in prison and a fine of up to $10,000. See Tex. Pen. Code Ann. ' 12.32 (Vernon 2003). The jury=s sentence of sixty-three years and twelve days and a $10,000 fine is within the range of punishment. Accordingly, we determine beyond a reasonable doubt that the error did not contribute to the punishment. We overrule appellant=s first point or error. II. Factual Sufficiency of the Evidence In his second point of error, appellant argues the evidence is factually insufficient to sustain his conviction. He argues the complainant=s credibility was Aespecially weak@ and three problems with the State=s case made the jury=s guilty verdict clearly wrong. The three asserted problems are: (1) the complainant repeatedly testified he was coerced by the police into identifying appellant from a photo spread; (2) the complainant contradicted himself and gave false information to the police on at least one issue of importance; and (3) an unbiased witness provided a strong alibi of appellant=s location at the time of the robbery. Appellant argues this evidence indicates the jury=s verdict is clearly wrong and unjust. Because appellant does not challenge the legal sufficiency of the evidence, our review of the factual sufficiency of the evidence begins with the presumption that the evidence supporting the judgment was legally sufficient. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In a factual sufficiency review, we view all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). There are two ways in which the evidence may be insufficient: (1) if the evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) weighing evidence both supporting the verdict and evidence contrary to the verdict, the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484B85. We must give appropriate deference to the jury=s findings, and we may not substitute our judgment for that of the jury. Id. at 482. When conducting a factual sufficiency review, our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407B08 (Tex. Crim. App. 1997). The weight to be given contradictory testimonial evidence is solely within the province of the fact finder because it turns on an evaluation of credibility and demeanor. Id. at 408B09. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. Id. at 407 & nn.4B5. A court of appeals must defer to jury findings and may find the evidence factually insufficient only when necessary to prevent manifest injustice. Id at 407. Under the indictment, the State was required to prove appellant, on or about November 20, 2002, did then and there unlawfully, while in the course of committing theft of property owned by the complainant and with intent to obtain and maintain control of the property, intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death, and appellant did then and there use and exhibit a deadly weapon, a firearm. Appellant isolates three pieces of evidence in his factual-sufficiency challenge. Our review is not so narrowly circumscribed. There is only one question to be answered in a factual sufficiency review: AConsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?@ See Zuniga, 144 S.W.3d at 484 (emphasis added). In this case, viewing all of the evidence in a neutral light, we conclude the jury was rationally justified in finding appellant guilty beyond a reasonable doubt. See id. at 481. Nevertheless, we briefly address in turn the Athree significant problems@ that appellant contends Amade the jury=s guilty verdict clearly wrong.@ First, appellant argues the complainant=s photo spread identification of appellant was questionable.[3] At trial, a brief misunderstanding arose regarding the process by which the complainant selected appellant=s photo from the photo spread, but this misunderstanding was cleared up by the prosecutor who thoroughly questioned the complainant in detail regarding what the police officer told him before he identified appellant in the photo spread. The record contradicts appellant=s contention that the photo spread identification of appellant was questionable, and we overrule this part of point two. Second, appellant asserts the complainant=s credibility was especially weak because the complainant testified that he did not know what had become of the assailant=s weapon, yet he told the police that an apartment security guard kept the weapon. This argument attacks the credibility and weight of the evidence and focuses on the inconsistencies between the complainant=s testimony and Officer Jackson=s testimony regarding whether the unidentified person/security guard, in fact, picked up and kept the gun used by appellant. Similarly, appellant also contends a third piece of evidence, Delores Perez=s alibi testimony, ruled out the possibility that appellant was Athe robber@ because Delores testified appellant was helping Rachel replace the flat tire on her car on the side of the road from 7:20 p.m. until approximately 8:30 p.m. on November 20, 2002. There is nothing in the record to suggest the jury=s resolution of any conflicts in the testimony of the complainant and Officer Jackson was unreasonable. Likewise, there is nothing in the record to suggest the jury=s resolution of Dolores= alibi testimony was unreasonable. Accordingly, we overrule appellant=s second point of error. The judgment of the trial court is affirmed. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed January 20, 2005. Panel consists of Justices Anderson, Hudson, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b). [1] At trial, an interpreter translated the complainant=s testimony. [2] Generally, a complaint regarding improper jury argument is non-constitutional error and is reviewable under Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). Here, however, the argument was proper. [3] Appellant does not challenge the admissibility of his identification by the complainant.