Rodger George v. State

Opinion issued February 24, 2011 In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-00302-CR ——————————— RoDger George, Appellant V. The State of Texas, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 1164608 MEMORANDUM OPINION After the jury convicted appellant Rodger George of aggravated robbery, but was unable to agree on punishment, the trial court granted a mistrial as to punishment. [1] Thereafter, a new jury was impaneled, appellant pleaded true to a prior conviction for robbery, and the jury assessed punishment at imprisonment for 20 years. In three issues, appellant contends (1) the trial court erred in denying a continuance to permit him to review the court reporter’s transcription of the mistrial, (2) he was denied due process when the trial court refused to permit testimony of juror misconduct, and (3) the evidence supporting the guilty verdict was legally and factually insufficient. We affirm. Background Jennifer Dill testified that when she drove into the parking lot early one morning at her job at a dialysis clinic, she noticed a champagne‑colored car with shiny chrome rims. She thereafter saw a man get out of the car, which she thought was unusual that early in the morning. As she walked from the parking lot to the clinic, appellant pointed a gun at her and demanded her purse. Dill described the gun as old and rust orange, with a long, narrow barrel. Appellant held the gun no more than a foot from her, and she got a good look at appellant’s face. She ran screaming towards the clinic door as appellant yelled at her, and she was let into the clinic by coworkers who also called 9-1-1. At trial, Dill identified appellant, a gun found in appellant’s car as the gun that was pointed at her, and a photograph of appellant’s car as the car she saw that morning. At trial, Sergeant Jennifer Simpson of the Jacinto City Police Department, who responded to the call, testified that Dill described the robber as a slender black male, approximately six‑feet tall, with a one‑inch Afro style hairstyle. Dill told Sergeant Simpson that the car she saw was a Plymouth Breeze and that appellant did not run back to the car, but instead ran toward a nearby restaurant. A week later, Dill saw the same car drive by the clinic. While Dill called 9‑1‑1, Christina Lewis, one of her coworkers at the clinic, followed the car. Responding to the 9‑1‑1 call, Detective Dennis Walker came to the clinic and was alerted that the car had been parked across the street. Walker and another detective walked over to the car in which they found a woman, later identified as Soeung Burleson, waiting for the driver who had gone inside a nearby building. Walker went into the building lobby and asked who was driving the gold car parked outside, and the man who responded that it was his car was the same man Walker identified at trial as appellant. After Walker requested and obtained appellant’s identification, Walker ran the identification number through the police dispatcher and was informed of outstanding arrest warrants for appellant. Once the warrants were confirmed, appellant was arrested, an inventory search of the car was conducted, and a gun was found in the glove compartment. Walker identified this gun at trial as the same gun Dill had identified. After arresting appellant and searching the car, Walker spoke to Dill, who described the man who robbed her as having a very short cut Afro hairstyle and gold teeth. Three weeks after the robbery, Dill identified appellant in a photo spread. Soeung Burleson testified that she was friends with appellant and described his car as gold with distinctive chrome wheels. She identified a photograph of the car, which was the same photograph that Dill identified at trial. Burleson further testified as to the gun in the glove compartment about which she told the police when appellant was arrested. Dill’s coworker, Christine Lewis, who witnessed the robbery, testified that the car she saw on the morning of the robbery did not have multiple television screens inside it. She further stated that she could not identify the robber or the car if she saw either again. Appellant’s mother, Mary Joseph, testified at trial that the car appellant sometimes drove was owned by her husband and appellant’s father, Rodney George, and that the car was a 2002 Stratus with multiple television screens. Moreover, appellant lived with her and her husband and, at the time of the robbery, appellant was at her house. Lakeisha Freeman, the mother of appellant’s children, also testified that appellant was home during the time of the robbery. Analysis A. Motion for Continuance In his first issue, appellant contends the trial court erred by denying his motion for continuance of the second trial on punishment so that he could obtain and review a transcription from the court reporter of the prior mistrial. In his written motion for continuance, in his argument at the pretrial hearing, and in his appellate brief, appellant cites cases recognizing a presumption that an indigent defendant generally has a right to a transcription from a prior proceeding and that the State bears the burden to show a lack of need for the transcription. See Britt v. North Carolina, 404 U.S. 226, 227, 92 S. Ct. 431, 433 (1971) (holding generally that state must provide free transcript of prior proceeding to indigent defendant); Billie v. State, 605 S.W.2d 558, 560–61 (Tex. Crim. App. [Panel Op.] 1980) (holding, under Britt, that indigent defendant’s need for transcription from prior proceeding is presumed and State bears burden to show lack of need); Armour v. State, 606 S.W.2d 891, 894 (Tex. Crim. App. [Panel Op.] 1980) (same); Brooks v. State, 901 S.W.2d 742, 745 (Tex. App.—Fort Worth 1995, pet. ref’d) (same). The only time appellant claimed he was indigent was in a separate “motion for discovery of transcript.” He, however, was represented by retained counsel at trial and had previously posted bond. The record is devoid of any evidence establishing indigence for the purpose of obtaining the transcription. Further, there is no record that appellant paid or made payment arrangements with the court reporter to transcribe the prior proceeding. The State cites this Court’s opinion in Easily v. State for the proposition that a defendant is not entitled to a free transcription under Britt unless indigence is demonstrated. Easily v. State, 248 S.W.3d 272, 276–280 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). We agree that Easily applies and that appellant did not demonstrate at trial that he was indigent or offered to pay for the transcription. See id. at 278 (noting that indigence at trial is defined as “a person who is not financially able to employ counsel”) (citing Tex. Code Crim. Proc. Ann. art. 1.051(b) (West Supp. 2010)). Accordingly, we overrule appellant’s first issue. B. Constitutional Due Process and Due Course of Law Appellant’s second issue contends he was denied constitutional due process and due course of law when the trial court refused to permit testimony of alleged juror misconduct.[2] The trial court did allow appellant to make an offer of proof during the hearing on his motion for new trial, in which a juror testified that she felt verbally threatened by other jurors during the deliberations on guilt‑innocence and that she became so frustrated that she eventually voted to find appellant guilty. Appellant also filed an affidavit from the juror, which contained an additional allegation that another juror said “a ‘hung’ jury would set [appellant] free.” At the hearing, the trial court refused to consider a new trial based on Texas Rule of Evidence 606(b), which prohibits a juror from testifying “as to any matter or statement occurring during the jury’s deliberations, or to the effect of anything on the juror’s mind or emotions or mental processes.” On appeal, appellant “does not necessarily challenge the verdict but contends the jury misconduct denied him a fair trial.” Acknowledging that Texas Rule of Evidence 606(b) and case law prevent him from directly challenging the verdict, appellant instead “argues the deliberation process was illegal; and as a consequence [he] was denied due process.” He cites one case, the Supreme Court’s opinion in Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976), and argues that procedural due process requires that he be given “(1) notice of the ‘case against him;’ (2) the opportunity to be heard at a meaningful time and manner, before the termination of a benefit; and (3) to include an evidentiary hearing.” At trial appellant raised no constitutional due‑process or due‑course‑of‑law arguments, but argued instead that the juror’s testimony was not barred by Texas Rule of Evidence 606(b) and that Texas Rule of Appellate Procedure 21.3(g) required a new trial because the jury “engaged in such misconduct that the defendant did not receive a fair and impartial trial.” Appellant’s constitutional objections were therefore not preserved. See Hayes v. State, 124 S.W.3d 781, 786–87 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)).[3] We overrule appellant’s second issue. C. Legal and Factual Sufficient of the Evidence Appellant’s third issue contends the evidence is legally and factually insufficient to support his conviction. Our assessment of legal sufficiency must consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that the accused committed all essential elements of the offense. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005); Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). Our evaluation must consider “all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). As it is the jury’s function to resolve any conflict of fact, weigh any evidence, and evaluate the credibility of any witnesses, we do not reevaluate the weight and credibility of the evidence, but only ensure that the jury’s decision was rational. See id.; Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992); see also Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991); Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). We therefore resolve any inconsistencies in the evidence in favor of the verdict, Matson, 819 S.W.2d at 843, and “defer to the jury’s credibility and weight determinations.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). For challenges to the factual sufficiency of the evidence, we also apply the Jackson v. Virginia standard of review in the light most favorable to the verdict. See Green v. State, No. PD‑1685‑10 (Tex. Crim. App. Jan. 26, 2011); Brooks v. State, 323 S.W.3d 893, 894–95 (plurality op.), 926 (Cochran, J., concurring) (Tex. Crim. App. 2010). Appellant argues that Dill’s testimony was contrary to the facts and other testimony at trial in the following particulars: (1) she told Sergeant Simpson that appellant had a one‑inch Afro, but appellant’s barber testified that his hair was short and he had never seen appellant with an Afro; (2) Dill did not tell Sergeant Simpson that appellant had gold teeth; and (3) Dill described appellant’s car as a Plymouth Breeze, whereas Joseph described the car as a Stratus with multiple television screens. Appellant also argues that Dill’s testimony that he got out of his car, committed the robbery, and ran towards a restaurant, instead of his car, was illogical. Finally, appellant points to the alibi evidence from his family that he was sleeping at home at the time of the robbery. Dill unhesitatingly identified appellant in a photo spread and later again at trial. She identified the gun the police found in appellant’s car as the one appellant pointed at her and also identified appellant’s car. Because we must resolve any inconsistencies in the evidence in favor of the verdict and defer to the jury’s credibility and weight determinations, we conclude that the jury reached a rational decision in convicting appellant. See Marshall, 210 S.W.3d at 625; Matson, 819 S.W.2d at 843. Accordingly we overrule appellant’s third issue. Conclusion We affirm the trial court’s judgment. Jim Sharp Justice Panel consists of Justices Keyes, Sharp, and Massengale. Do not publish. Tex. R. App. P. 47.2(b). [1] See Tex. Penal Code Ann. § 29.03 (West 2003). [2] See U.S. Const. amends. V, XIV, § 1; Tex. Const. art. I, § 15. [3] We note that the Tyler Court of Appeals has rejected a constitutional challenge to Texas Rule of Evidence Rule 606(b). See Dunklin v. State, 194 S.W.3d 14, 19–20 (Tex. App.—Tyler 2006, no pet.) (citing Tanner v. United States, 483 U.S. 107, 126–28, 107 S. Ct. 2739, 2750–51 (1987) (Sixth Amendment challenge to Federal Rule of Evidence 606(b)).