Morris Drew Adcock v. State ( 1995 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-94-157-CR





MORRIS DREW ADCOCK,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT

NO. 93-144, HONORABLE ROBERT T. PFEUFFER, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of two counts of third-degree felony theft. Act of May 23, 1991, 72d Leg., R.S., ch. 565, § 1, 1991 Tex. Gen. Laws 2003 (Tex. Penal Code Ann. § 31.03(e)(4)(A), (E), since amended). The jury assessed punishment for each count, enhanced by a previous conviction for burglary of a habitation, at imprisonment for twenty years. We will address first those points of error relating to count one, then those points relevant to count two, and finally those points that apply to both counts.

1.  Count one.

Thomas Blackwell owns Brownsboro Enterprises, a construction company in Lockhart. On the morning of December 29, 1992, Blackwell arrived at work to find one of the gates to the yard open. The lock on the gate, which Blackwell had secured the night before, had not been forced. Upon further inspection of the premises, Blackwell discovered that a 1986 crew cab pickup truck owned by the business was missing. The stolen truck was found abandoned near Austin the following day. Appellant's fingerprints were found on the hood and driver's side vent window of the truck.

Appellant was employed by Blackwell at the time of the theft. In the course of his work, appellant had been driving a 1979 model truck also belonging to the construction company. A key to the unlocked gate was ordinarily kept in that truck, but it was missing that morning, as were a number of valuable tools stored in the truck. The missing key, with its distinctive key ring, was later found in the stolen truck. Appellant had been scheduled to work on December 28, but did not do so. Efforts to find appellant on December 29 were unsuccessful. Appellant never returned to work at Brownsboro Enterprises.

Fred Murphy, Jr., testified that appellant called him at his home on the night of December 28, 1992, and asked him for a ride into Lockhart. At approximately 11:00 p.m., after driving appellant to two different houses in town, Murphy told appellant that he wanted to go home. As they approached Brownsboro Enterprises, appellant instructed Murphy to stop. Appellant got out of Murphy's vehicle and told him he would wait there for appellant's brother. Murphy last saw appellant walking toward the company gate. Appellant later told Blackwell in a telephone conversation that he "was waiting around there [the Brownsboro Enterprises yard] for some married woman to pick him up," but appellant refused to name this woman.

In two points of error, appellant contends the evidence is legally insufficient to sustain his conviction for the theft of the truck. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Appellant argues that the evidence is not legally sufficient because the State proved only that he was present at the scene shortly before the theft. King v. State, 712 S.W.2d 799, 801 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd).

Appellant understates the volume of incriminating circumstantial evidence in this cause. The key apparently used to unlock the gate on the night of the theft was ordinarily kept in the truck appellant drove in the course of his employment. This key was found in the stolen truck. Tools ordinarily kept in the truck assigned to appellant were also stolen. Appellant's fingerprints were found on the stolen truck. The explanation appellant gave Murphy for wanting to be left alone at Brownsboro Enterprises in the middle of the night differed from the explanation appellant gave Blackwell after the theft. Appellant failed to appear at work on either the day before or the day after the theft, and in fact never returned to his job. While it is true that appellant was not shown to be in possession of the stolen property, we believe that the circumstances proved by the State, when viewed in the light most favorable to the verdict, do more than merely cast suspicion on appellant. From the evidence, a rational trier of fact could find beyond a reasonable doubt that appellant was the person who stole the truck from the yard of Brownsboro Enterprises on the night of December 28, 1992.

King v. State, on which appellant relies, is factually distinguishable. More importantly, King was decided at a time when the evidence in circumstantial evidence cases had to exclude all reasonable hypotheses other than guilt. The alternative hypothesis construct was abolished before appellant's trial. Geesa v. State, 820 S.W.2d at 161. Points of error four and five are overruled.

In point of error two, appellant contends the district court erred by overruling his motion for mistrial made after Blackwell testified, over appellant's sustained hearsay objection, that the stolen truck had been recently washed. This contention is based on the following exchange during Blackwell's direct testimony:

Q Now, had the Chevrolet crew cab been washed at any time recently prior to December 29, 1993 [sic]?

MR. BEHRENDT [defense counsel]: Objection, Your Honor. May I take this witness on voir dire?

THE COURT: Why?

MR. BEHRENDT: Your Honor, may I approach the bench?

THE COURT: Yes, sir.

MR. BEHRENDT: Your Honor, the police report or statement of this witness indicates that somebody told him it was washed, and his answer is going to --

THE COURT: You understand that you can only testify to things that you know of your own knowledge and not something that has been told to you by a third person.

THE WITNESS: Yes, sir.

THE COURT: Can you answer this question of Mr. Kimbrough's from your own personal knowledge?

THE WITNESS: Can I ask a question, also?

THE COURT: Yes.

THE WITNESS: If I told the man to wash it or told him to have the truck washed, and then I checked with somebody and they said they did --

MR. BEHRENDT: Objection.

THE COURT: I sustain the objection.

MR. BEHRENDT: Your Honor, may I have the jury instructed to disregard the answer that someone told him that if --

THE COURT: So ordered.

MR. BEHRENDT: I move for a mistrial.

THE COURT: Denied. Proceed.

We note first that the prosecutor's question was never answered. Second, if the jury got the impression that the truck had been recently washed, and the record does not clearly reflect that it did, it did so as a result of statements made by defense counsel and by Blackwell in response to counsel's objection. Under the circumstances, the instruction to disregard was sufficient to cure any error. Adanandus v. State, 866 S.W.2d 210, 227 (Tex. Crim. App. 1993). Point of error two is overruled.

Appellant argues that another motion for mistrial should have been granted when the prosecutor asked a police officer, "In your experience . . . how common is it, from a police officer's perspective, to see stolen cars abandoned and not driven by the suspect for any significant period of time?" Appellant's relevance objection was sustained, the question was not answered, and the jury was instructed to disregard the question. Any error was cured and the district court did not abuse its discretion by overruling appellant's motion for mistrial. Id. Point of error three is overruled.

Fred Murphy testified that he had four convictions for driving while intoxicated, two of which were felonies. In two points of error, appellant complains of the district court's refusal to instruct the jury that the evidence of Murphy's felony convictions was admitted to aid them in deciding the weight to give his testimony, and was not to be considered for any other purpose.

Appellant's argument under these points is based on a misunderstanding of the purpose of the limiting instruction he requested. He reads the instruction as directing the jury to consider the impeaching evidence and to discount the witness's testimony accordingly. To single out evidence in this manner, however, would be an improper comment on the weight of the evidence. Tex. Code Crim. Proc. Ann. art. 36.14 (West Supp. 1994). In fact, the purpose of a limiting instruction regarding evidence admitted for impeachment only is to protect against the jury's misuse of the evidence. Adams v. State, 862 S.W.2d 139, 148 (Tex. App.--San Antonio 1993, pet. ref'd). When the evidence in question could only be used for impeachment, no limiting instruction is required. Cantrell v. State, 731 S.W.2d 84, 95 (Tex. Crim. App. 1987). The evidence regarding Murphy's DWI convictions could only be used to impeach his credibility. The evidence could not be used by the jury as substantive evidence of appellant's guilt. Therefore, no limiting instruction was required and no error is presented. Points of error ten and eleven are overruled.

2.  Count two.

On the afternoon of March 4, 1993, Carolina Velasquez was working as cashier at a Lockhart convenience store. A man walked into the store, took a beer from the cooler, and placed the beer on the counter. Velasquez glanced at the man, whom she identified at trial as appellant, and saw that he had approximately ten packs of cigarettes stuffed in his waistband and coat pockets. Appellant told Velasquez that he did not want the beer and began to walk quickly out of the store. Velasquez asked, "What about those cigarettes?" Appellant replied, "What cigarettes?" and continued out the door. Velasquez called the police.

Appellant contends the evidence is legally insufficient to sustain his conviction for stealing the cigarettes because Velasquez said, when shown appellant's photograph on the day of the offense, "I think that's the guy." Velasquez denied using those words and appellant relies on the testimony of the investigating officer. In any event, Velasquez's identification of appellant at trial was positive. Viewing the evidence at trial in the light most favorable to the verdict, a rational trier of fact could find beyond a reasonable doubt that appellant stole the cigarettes. Points of error eight and nine are overruled.

Appellant argues that the district court should have suppressed Velasquez's in-court identification because it was tainted by an impermissibly suggestive pretrial identification procedure. Appellant's brief contains separate points of error based on the due process of law clause of the United States Constitution and the due course of law clause of the Texas Constitution. U.S. Const. amend. XIV; Tex. Const. art. I, § 19. Appellant groups the two points for argument, however, and makes no effort to demonstrate that the state constitution affords the accused greater protection with respect to identification procedures than does the federal constitution. Following appellant's lead, we will assume that the two constitutional provisions are identical in this regard. Morehead v. State, 807 S.W.2d 577, 579 n.1 (Tex. Crim. App. 1991).

Velasquez testified at the hearing on appellant's motion to suppress that she told the investigating officer, David Powell, that the thief was a man she had often seen in the store and around town. Moreover, she knew that the man's brother was Susan Mager's boyfriend. While Powell waited, Velasquez called Susan Mager's mother, who told Velasquez that Susan's boyfriend's brother was Drew Adcock. Velasquez gave the name to Powell. Powell went to the police station and got a photograph of appellant. ⁽¹⁾ He returned to the store and showed the picture to Velasquez. Powell testified that he asked Velasquez, "Do you recognize this guy?" but was careful not to tell Velasquez the name of the man in the photograph. Velasquez told Powell that the man in the photograph was the thief.

The following day, Velasquez went to the police station to give a statement. The officer who took the statement, John Roescher, testified, "I showed her a picture of Morris [Drew] Adcock, but she had told me that's who -- she told me who the person was and I showed her a picture so I knew we were talking about the same person." Velasquez again confirmed that appellant was the man who shoplifted the cigarettes.

Appellant urges that the repeated display of a single photograph was unduly suggestive and gave rise to a very substantial likelihood of irreparable misidentification. See Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). Although such one-on-one identification procedures are generally frowned upon, the suggestiveness of the procedure in any given case must be determined from the totality of the circumstances. Jackson v. State, 657 S.W.2d 123, 127 (Tex. Crim. App. 1983). The evidence in this cause demonstrates that Velasquez recognized appellant at the time of the offense. Although she did not know his name, Velasquez did know of his brother's relationship with Susan Mager. After Velasquez obtained appellant's name from Mrs. Mager and gave it to Powell, her identification of appellant as the thief was complete. The subsequent display of the photograph by the two officers merely confirmed that the Drew Adcock known to the police was the same Drew Adcock who stole the cigarettes from Velasquez. Under the circumstances, appellant has failed to demonstrate either that the pretrial identification procedure was unduly suggestive or that it gave rise to a substantial likelihood of misidentification. Points of error six and seven are overruled.

The State alleged and the jury found that appellant had been convicted twice before of theft, thus elevating this offense to a third degree felony. Appellant contends in his twelfth point of error that the district court erred by admitting State's exhibit three, a certified copy of a judgment of conviction for theft in Midland County cause number 39,522, one of the two previous convictions alleged in the indictment. The Midland County judgment bears a fingerprint identified as that of the defendant's left thumb. An expert testified that this print matches appellant's left thumb print. Citing Scott v. State, 553 S.W.2d 361 (Tex. Crim. App. 1977), appellant argues that the exhibit was not admissible because the certification by the Midland County clerk "made no specific reference to the judgment, or the thumbprint, or any other particular document to which the certification was to relate." ⁽²⁾ This contention was not presented to the district court and was therefore not preserved for review. ⁽³⁾ Tex. R. App. P. 52(A). Point of error twelve is overruled.

3.  Other points of error.

In point of error one, appellant complains of a remark made by the district court after the prosecutor concluded his voir dire of the jury panel. During the course of the prosecutor's voir dire, several panelists had expressed dissatisfaction with the workings of the parole system. Others had said they believed that imprisonment for twenty years is an excessive punishment for theft, even if the defendant is a repeat offender. Before recessing for lunch, the court said:

But let me just tell you, every two years you get a chance to change the laws in this State. First of all you get that change by electing the folks that think like you do that carry the message that you want taken to Austin; and, secondly, you can see to it that once they get over there they act like they said they were going to when they got elected, and that they're going to vote for those programs that they supported in their --

MR BEHRENDT: Your Honor, I object to comments by the Court with respect to this. It may tend to prejudice the jury and I object to it.

THE COURT: Objection overruled.

And all I'm saying is that all of you need to think about all of the things that were talked about here this morning when it comes down to the elections every two years; doesn't have anything to do with this defendant or this lawyer or this particular case. All I'm saying is that this is an exercise in civics that we're involved with here, okay, and so you have an opportunity to involve yourself in that every two years.

Appellant notes that a few moments earlier, one of the panelists had said that "twenty years wouldn't help." Appellant argues that the court's remarks conveyed the opinion that the jury should assess the maximum punishment in this cause.

Appellant quotes only a portion of the panelist's statement. The juror said, "I have one more thing. Even though if someone continues to do that, I don't think prison is the answer. I think they have enough problems, so the twenty years wouldn't help." This panelist also said, "I don't know if I could give him twenty years." In context, the panelist was not expressing the view that twenty years in prison was too light a punishment, but too harsh.

A trial court should not at any stage of the proceedings make any remark calculated to convey to the jury its opinion of the case. Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979). In Livingston v. State, 782 S.W.2d 12 (Tex. App.--Dallas 1989, pet. ref'd), cited by appellant, a conviction was reversed because the trial court told the jury panel during voir dire, "I can't imagine any case I would want to give five years on." 782 S.W.2d at 13. In the cause before us, the district court did not express its approval or disapproval of any particular punishment. Instead, the court merely encouraged the panelists to vote. The court's remarks were not calculated to benefit the State and, in context, did not convey any opinion regarding this cause. Point of error one is overruled.

Finally, appellant contends the statutory instruction on parole and good conduct time is vague and contradictory, thus violating the due process and due course of law clauses of the federal and state constitutions. Tex. Code Crim. Proc. Ann. art. 37.07, § 4 (West Supp. 1994). These arguments have been made to and rejected by the Court of Criminal Appeals. Muhammad v. State, 830 S.W.2d 953 (Tex. Crim. App. 1992); Oakley v. State, 830 S.W.2d 107 (Tex. Crim. App. 1992). Points of error thirteen and fourteen are overruled.

The judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Jones and Kidd

Affirmed

Filed: February 1, 1995

Do Not Publish

1.   Powell testified that the photograph was a police mug shot. He said that he folded the photo so that only the face showed. Appellant does not contend that the photograph was itself impermissibly suggestive.

2.   The certification states that "the above and foregoing is a full, true and correct copy as the same appears of record" in the clerk's office.

3.   At trial, appellant urged that the exhibit was inadmissible because the certification appeared on the back of the exhibit rather than the front.