Potts, Rodney Lyenwood v. State ( 2003 )

Opinion Issued December 11, 2003

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-02-00919-CR & 01-02-00920-CR

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RODNEY LYENWOOD POTTS , Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause Nos. 872495 & 873393  

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MEMORANDUM OPINION

          In separate indictments, Rodney Lyenwood Potts, appellant, was charged with aggravated sexual assault and aggravated kidnapping. Appellant pleaded not guilty to both offenses before a single jury. The jury found appellant guilty of both offenses as charged. After appellant pleaded true to a punishment enhancement paragraph, the jury assessed punishment at life imprisonment and a $10,000 fine. In eight points of error, appellant challenges (1) the sufficiency of the evidence, (2) the admission of extraneous offense evidence, (3) the admission of hearsay testimony, and (4) the denial of his motion for mistrial. We affirm. Background

The Aggravated Kidnapping and Aggravated Sexual Assault  

          On February 20, 2001, complainant, a 19-year-old female, was walking home around 11:30 a.m. after spending the night with her boyfriend at a local motel. Although the walk was several blocks long, complainant had grown up in the neighborhood, and, because it was the middle of the day, she felt comfortable walking home. When complainant was only a few blocks away from her house, she noticed a white cargo van parked across the sidewalk blocking her path. Appellant was sitting in the back of the van with the doors open and his legs hanging out of the door. Complainant began walking around the van when appellant grabbed her and threw her into the van. Appellant taped her mouth shut, taped her arms together, tied her feet with wire, and drove away.

          During the drive, complainant studied the interior of the van. She testified that the van contained a small dresser between the front seats and a cabinet in the back. Appellant did not speak to complainant during the drive except for a threat that he was going to kill her. Appellant eventually stopped the van at an abandoned house in an isolated area. Appellant untied the wire around complainant’s legs and ushered her into the abandoned home and up the stairs. Appellant removed the tape around complainant’s mouth and hands, and punched complainant, causing her to fall unconscious to the floor.

          When complainant awoke, appellant ordered her to take off her pants while he pressed his knees against her throat. After complying, complainant passed out again. When she regained consciousness, she noticed she was in a different room, lying on the floor with appellant on top of her. Appellant began beating complainant with a wooden club, a brick, and his fists. Complainant lost consciousness again. When she awoke again, appellant was on top of her raping her. During the sexual assault, complainant drifted in and out of consciousness. Appellant left the room when he was finished, and complainant tried to escape out a window. Appellant saw her, however, and began punching her. Again, complainant lost consciousness. Complainant awoke to the fumes of gasoline being poured on and into her. Appellant searched for a cigarette lighter, but the one that had been in complainant’s jacket had fallen out during the rape and complainant was lying on top of it. When appellant was not looking, complainant threw it out the window. Eventually, after his search for the lighter was futile, appellant left the house and drove off in the van. Complainant ran out of the house half naked into the street. She stumbled about half a block and then collapsed in a ditch on the side of the road. Dunn and Watson, two passers-by, ultimately saw complainant and called the police. Eventually, appellant was linked to the crime by his theft of the white van the day before the aggravated kidnapping and aggravated sexual assault of complainant.

The Theft of the White Van

          Patrick Dolce, a drywall construction worker, owned a white 1985 Dodge van that he used to carry both his personal and company tools. The van had the side windows covered; inside, there was a night-stand between the front two seats and a cabinet in the back. On February 16, 2001, four days before appellant’s assault on complainant, Dolce, having experienced some financial troubles, pawned some of his tools and began a carpentry job at the Kirk Motel. While at the motel, Dolce met appellant. After talking for a while, Dolce loaned appellant the van to go get food for them. The next morning, while Dolce was loading his tools into the van, appellant approached Dolce and demanded Dolce’s van keys and his money. After appellant hit and threatened Dolce, Dolce complied and appellant drove off in Dolce’s van.

The Investigation

          After the kidnapping and assault of complainant on February 20, 2001, an investigation immediately began. After speaking with complainant, police searched the abandoned house. Several pieces of evidence were found including a wooden club and a brick. Although several items were sent to the crime lab, neither fingerprints nor DNA could be obtained. Complainant was able to describe the interior of the van and appellant, whom she eventually positively identified in a photo spread.

          The day after the assault, complainant’s aunt and sister were leaving their home when they noticed a white van similar to complainant’s description. They followed the van, saw appellant driving, wrote down the license plate number, and called the police. A few days later, the white van was found abandoned. Inside the van were Dolce’s tools and several items that did not belong to Dolce, including a third-grade school notebook. Investigators inspected the notebook left in the van and determined that it belonged to appellant’s child. The principal of the school that appellant’s children attended also identified the notebook as that of appellant’s child, and also told investigators that, prior to February, appellant did not own a vehicle, but in February appellant drove his children to school in a white van.  

DiscussionSufficiency of the Evidence

          In points of error six through eight, appellant contends the evidence is legally and factually insufficient to support his conviction for aggravated kidnapping and aggravated sexual assault. Appellant argues that the complainant’s identification of appellant was unreliable, and there was no physical evidence linking either appellant or the white van to the offense or location of the offense. Appellant also contends the State failed to prove that the wooden stick used in the offense satisfied the legal definition of a “club,” as alleged in the aggravated kidnapping indictment.   

          We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We are not permitted to substitute our judgment for that of the jury. Id.   

          In reviewing factual sufficiency, we examine all the evidence neutrally and ask whether proof of guilt is so obviously weak as to undermine confidence in the jury’s determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); King, 29 S.W.3d at 563. While conducting our analysis, if there is probative evidence supporting the verdict, we must avoid substituting our judgment for that of the trier of fact, even when we disagree with the determination. King, 29 S.W.3d at 563. The trier of fact is the sole judge of the weight and credibility of the witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

          Under the law applicable to this case, to secure a conviction for aggravated sexual assault, the State had to prove beyond a reasonable doubt that appellant (1) intentionally or knowingly caused the penetration of the female sexual organ of complainant, (2) without her consent, and (3) by acts or words, placed complainant in fear of death or serious bodily injury. See Tex. Pen. Code Ann. §§ 22.021(a)(1)(A)(I), (a)(2)(A)(ii) (Vernon 2003). A person commits aggravated kidnapping if he (1) intentionally or knowingly abducts another person with the intent to inflict bodily injury on her or to violate or abuse her sexually or if he (2) “intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.” Tex. Pen. Code Ann. §§ 20.04(a)(4), (b) (Vernon 2003).  

          Here, complainant testified that she was walking down the street when appellant, without her consent, grabbed her, threw her into a white van, and taped her mouth shut and her arms together. She also testified that appellant beat her with a wooden club and a brick, and raped her during the assault. A wooden stick and brick were recovered at the scene of the assault. Police also recovered Dolce’s pawn slip for his drywall tools at the scene of the assault. Furthermore, although complainant passed out at various points during the commission of the offense, she was able to positively identify appellant in a photographic lineup. There was also evidence linking appellant to the white van. Appellant admitted that he was in possession of the white van during the week of complainant’s kidnapping and sexual assault. Complainant also described the interior of the van that appellant drove and transported her in prior to sexually assaulting her. Officer Stevens testified that he found appellant’s children’s schoolbooks in the van; and the principal of the school appellant’s children attended testified that during February appellant had been driving his children to school in a white van.   

          Viewing the evidence in the light most favorable to the verdict, we find that the evidence was legally sufficient for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Viewing the evidence neutrally, we observe that the jury decided, in this case, to believe complainant and her witnesses and to disbelieve appellant. Because the jury, as trier-of-fact, is the sole judge of the weight and credibility of the witness testimony, and because the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination, or so greatly outweighed by contrary proof as to indicate that a manifest injustice occurred, we hold that the evidence was factually sufficient to support the verdict.

Extraneous Offense Testimony

          In his first and second points of error, appellant contends the trial court erred in admitting extraneous offense testimony evidence that appellant had obtained the white van used during the aggravated kidnapping and aggravated sexual assault during an unrelated automobile theft and robbery offense. Appellant claims not only that such testimony was irrelevant, but also that the probative value of the extraneous offense testimony was substantially outweighed by the unfair prejudice, undue delay, and confusion of the issues relevant to the case.

          We review the trial court’s determination of admissibility under an abuse of discretion standard. Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). As long as the trial court’s ruling was within the “zone of reasonable disagreement,” there is no abuse of discretion, and we must uphold the ruling. Id.

          As a general rule, to prevent an accused from being prosecuted for some collateral crime or misconduct, the State may not introduce evidence of bad acts similar to the offense charged. Id. at 600-01. Rule 404(b) provides that evidence of “other crimes, wrongs or acts” is not admissible to prove a defendant’s character in order to show action in conformity therewith. Tex. R. Evid. 404(b). However, as an exception to the general rule of exclusion, evidence of “other crimes, wrongs, or acts” may be admissible if (1) it has relevance to a material issue other than to show that the accused acted in conformity with some trait of character, and (2) the probative value of the evidence is not “substantially outweighed by the danger of unfair prejudice.” Roberts, 29 S.W.3d at 601.

          Evidence of other crimes, wrongs, or acts is relevant apart from showing character conformity if the proponent shows that it tends to establish some elemental fact such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Tex. R. Evid. 404(b); Roberts, 29 S.W.3d at 601.

          Another exception to the general rule is same transaction contextual evidence. See Rodgers v. State, 853 S.W.2d 29, 32-33 (Tex. Crim. App. 1993). Where several crimes are intermixed, blended, or connected with one another so that they form an indivisible criminal transaction, they are collectively referred to as same transaction contextual evidence. See Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000); Mayes, 816 S.W.2d at 86-87. Same transaction contextual extraneous offense evidence is admitted not because it has any particular evidentiary purpose, but rather because, in narrating the one offense, it is impracticable to avoid describing the other extraneous offense. See Mayes, 816 S.W.2d at 86-87. Thus, same transaction contextual offense evidence illuminates the nature of the crime alleged by imparting to the trier of fact information essential to understanding the context and circumstances of events. Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).  

                           Here, we conclude that the extraneous offense evidence—testimony that appellant stole Dolce’s white van and the circumstances surrounding the theft—was admissible to show the context in which the criminal act occurred. The van and its contents tied appellant to the crime. Testimony established that appellant stole Dolce’s van a few days before the aggravated sexual assault and aggravated kidnapping of complainant. Appellant had no means of transportation prior to the theft of the van. The white van was the vehicle used in the aggravated kidnapping and transportation of complainant. The van was also central to developing appellant as a suspect in the case and in the investigation of the offenses. Evidence found in the van linked appellant to the crimes. The theft of the van also resulted in appellant’s inclusion in a photographic spread from which complainant identified appellant. The extraneous offense testimony was helpful for the jury to know why Dolce’s van was the target of the investigation and why Dolce was not a suspect. The admission of evidence that appellant stole the white van used during the offenses clearly described the circumstances surrounding the offenses and was helpful to the jury’s comprehension of the offenses.  

          We hold that there was no abuse of discretion in the court’s ruling to admit this evidence. The evidence of the stolen van constituted contextual evidence indivisibly connected to the charged offenses and therefore, it was relevant under Rules 401 and 404(b). Tex. R. Evid. 401, 404(b). We must also consider whether the unfair prejudicial effect of the extraneous evidence substantially outweighed its probative value. In doing so, we give great deference to the trial court’s determination of admissibility. Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim. App. 1990). The prejudicial nature of same transaction contextual evidence rarely renders such evidence inadmissable, as long as it sets the stage for the jury’s comprehension of the whole criminal transaction. Houston v. State, 832 S.W.2d 180, 183 (Tex. App.—Waco 1992, pet dism’d). Here, the prejudicial effect of admitting the extraneous offense evidence was slight in comparison to the probative value. The admission of the extraneous theft of the white van helped link appellant to the van used in the kidnappping, and it also discredited any notion that Dolce was somehow involved. We agree with the trial court’s determination that the facts of the theft and robbery of the white van are not so egregious as to be highly prejudicial. Consequently, the trial court did not abuse its discretion in admitting this evidence.

            We overrule appellant’s first and second points of error.

Hearsay Testimony

          In his third and fourth points of error, appellant argues that the trial court erred by admitting complainant’s hearsay statements made to Dunn and Sergeant Carter. Appellant contends that Dunn’s and Sergeant Carter’s testimony—that the complainant had told them she had been sexually assaulted—did not qualify as an “excited utterance” exception to the hearsay rule.

          We review a trial judge’s decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). The admissibility of an out-of-court statement under an exception to the general hearsay exclusion rule is within the trial court’s discretion. Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995). The decision of the trial court will be affirmed if its decision is within the zone of reasonable disagreement on the particular issue. See Torres, 71 S.W.3d at 760; Montgomery, 810 S.W.2d at 391.

          For hearsay to be admissible, it must fit into an exception provided the Rules of Evidence. One such exception is an excited utterance which is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex. R. Evid. 803(2).

          In determining whether an excited utterance statement is admissible, the court may consider the time elapsed and whether the statement was in response to a question. However, it is not, as appellant claims, dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event; these are only two factors in determining whether a statement is an excited utterance. Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001); Lawton, 913 S.W.2d at 553. The key factor is “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event.” Lawton, 913 S.W.2d at 553.

          Here, the record supports the trial court’s decision to admit Dunn’s testimony regarding what complainant told her. Dunn testified that complainant’s “emotions were distress, fear. She kept repeating that she was scared” and that, while in that emotional state, complainant indicated that a stranger driving a white van was responsible for beating and raping her. Although complainant made her declarations in response to questions by Dunn, this is only one factor to consider in determining the admissibility of an excited utterance. Appellant contends the State failed to establish the time frame from when complainant left the vacant house to when she spoke to Dunn. The time lapse between the actual event and the hearsay is also only one factor to consider. The record in this case establishes that Dunn was the first person complainant spoke to and, despite the amount of time that passed, complainant was still “scared” and “hurting.” Based on Dunn’s testimony, we conclude that the trial court did not abuse its discretion in admitting complainant’s statements under the excited utterance exception to the hearsay rule.

          Similarly, the trial court did not err in admitting complainant’s statements to Sergeant Carter and in permitting Carter to testify about what complainant told him; these statements were also admissible under the excited utterance hearsay exception. Carter met with complainant at the scene, but did not get to speak with her until three hours later, after complainant was transported to and treated at the hospital. Carter testified that, at the hospital, although complainant was in better physical condition, she was still upset and traumatized. While in the hospital, complainant told Carter that she was abducted, beaten, and sexually assaulted. Although complainant’s statements regarding the kidnapping and assault were made to Carter approximately three hours after she was found, they were made while complainant was still dominated by the emotions and pain of the physical and sexual assault. Therefore, the statements qualify as admissible excited utterances and fall within the hearsay exception. Because the record supports the trial court’s ruling that the statement was admissible as an excited utterance, we cannot say that the trial court abused its discretion.

          We overrule appellant’s third and fourth points of error.

Denial of Motion for Mistrial

          In his fifth point of error, appellant challenges the trial court’s denial of his motion for mistrial after an officer started to testify that there was a report made of domestic abuse associated with the name Joyce Richardson, appellant’s wife. While Officer Stevens was being examined by the State, the following exchange occurred:

Question:Okay. Did you in your investigation find that a male also lived at that residence?

Answer:Yes, I did. That was a report made of domestic abuse where—

Mr. Anderson:Excuse me, Your Honor. I’m going to object to—sorry. I would object to that.

Court:Sustained.

Mr. Anderson:I would ask that be struck from the record, Your Honor.

Court:Stricken from the record.

Mr. Anderson:And the jury be—

Court:Instructed to disregard?

Mr. Anderson:Yes, Your Honor.

Court:Jury is instructed to disregard the last statement and not consider it for any purpose.

Mr. Anderson:We move for a mistrial.

Court:That will be denied.

Appellant argues that this denial of his motion for mistrial was error because the clear inference of the officer’s testimony was that the appellant committed the domestic violence offense.

          We do not disturb a trial court’s ruling denying a motion for mistrial unless it amounts to an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A trial court should only grant a mistrial in extreme cases when error is so prejudicial as to appear calculated to inflame the minds of the jury members. Id. Whether an error necessitates a mistrial depends on the particular facts of the case. Id. Generally, a mistrial will not be necessary because a prompt instruction to disregard will cure error associated with the improper testimony. See Orvalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). We presume the jury followed a trial court’s prompt admonishment to disregard the improper evidence. Ladd, 3 S.W.2d at 567.

          In the instant case, after reviewing the record and the improper testimony, we conclude that the answer was not calculated to inflame the minds of the jury, and was not of such a nature that it was impossible to withdraw a prejudicial impression from the minds of the jurors. The trial court promptly struck the testimony from the record and instructed the jury to disregard. These prompt measures were sufficient to cure any error from the answer. We overrule appellant’s fifth point of error.

Conclusion

          We affirm the judgment of the trial court.

Evelyn V. Keyes

                                                             Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala. 

Do not publish. Tex. R. App. P. 47.2(b).