George Bennett Robertson, III v. State ( 1993 )

Robertson III v. State

IN THE

TENTH COURT OF APPEALS

NO. 10-92-110-CR

        GEORGE BENNETT ROBERTSON, III,

                                                                                       Appellant

        v.

        THE STATE OF TEXAS,

                                                                                       Appellee

From the 174th District Court

Harris County, Texas

Trial Court # 617,235

O P I N I O N

          This is an appeal by Appellant Robertson from his convictions for aggravated robbery (enhanced by two prior felony convictions) for which he was assessed life imprisonment; and his appeal from his conviction for unauthorized use of a motor vehicle (enhanced by two prior felony convictions) for which he was assessed 35 years imprisonment. There was one indictment containing two counts, and both counts were tried together.

          On April 24, 1991, Angeline Paulin, the complainant, and her son Terry went to a Wal-Mart store to purchase film. As they were walking down an aisle of the parking lot, a car approached them from behind and struck Mrs. Paulin, causing her to fall. Immediately after she was struck, an arm reached out of the passenger side of the car and snatched her purse. An ambulance carried Mrs. Paulin to a hospital where it was determined she had a fractured hip.

          At the time Mrs. Paulin was struck, Deputy Sheriff Barber was in the parking lot working as a security guard. He noticed a blue four-door Mercury with license plate 924-2GS circling the parking lot. He noticed it because it slowly circled the parking lot three times. Officer Barber focused his binoculars on the vehicle and saw two while males in the front seat. At trial he identified Appellant as the driver of the blue Mercury.

          As the suspect's vehicle circled the parking lot for the third time, Officer Barber saw it speed up as it passed the front of the store and then rush out of the parking lot with the passenger slumping down in his seat. While Officer Barber did not see what occurred at the front of the store, the actions of the suspect vehicle caused him to believe some type of disturbance had taken place. As Officer Barber approached the front of the store he found Mrs. Paulin lying on the ground. She told him someone had struck her with a car and snatched her purse. After Mrs. Paulin was taken away, Officer Barber contacted his dispatcher and other police officers arrived at the scene. Officer Barber gave them a description of the Mercury and its occupants. Officer King received the license plate number of the suspect vehicle and learned the car belonged to Appellant's mother, Ruby Robertson. Mrs. Robertson testified that Appellant lived with her and that she had taken his keys to her car away from him and told him he could not drive it anymore; that when she returned from work on April 24, the day of the incident, the Mercury was missing. Her car was not found until June, and she did not see Appellant again until December.

          As noted, Appellant was convicted for both aggravated robbery and unauthorized use of a motor vehicle.

          Appellant appeals on two points. Point one asserts the trial court erred in denying Appellant's motion for a mistrial after the court sustained his objection to the prosecuting attorney's final argument at the guilt-innocence phase because it was a comment on the failure of the Appellant to testify.

          During final argument, the prosecutor, attempting to rebut the claim made by Appellant's counsel that Appellant did not intentionally run into Mrs. Paulin stated:

The only thing that you have heard is the defendant's actions and what has happened. You've heard no evidence that the defendant didn't intend to do this . . . .

Appellant's counsel objected that such was a comment on defendant's failure to testify. The trial court sustained and instructed the jury to disregard. Appellant's counsel then moved for a mistrial which the trial court denied.

          An instruction to disregard improper argument is generally sufficient to cure the error. Anderson v. State, (Tex. Crim. App.) 633 S.W.2d 851, 855. Moreover, from the totality of the facts in the case, we can say beyond a reasonable doubt that the error, if any, did not contribute to Appellant's punishment. Tex. R. App. P. 81(b)(2); Mayberry v. State, (Tex. Crim. App.) 532 S.W.2d 80,85. Point one is overruled.

          Point two asserts the evidence was insufficient to sustain Appellant's conviction for aggravated robbery. In reviewing the sufficiency of the evidence to support a conviction, the evidence is viewed in the light most favorable to the verdict. Flournoy v. State, (Tex. Crim. App.) 668 S.W.2d 380, 383. The critical inquiry is whether, after viewing the evidence in the light most favorable to the verdict, any rational tier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19.

          Officer Barber, a security guard at a Wal-Mart store, had his attention drawn to a blue Mercury with license place 924-2GS because it circled the parking lot two times and did not appear as though the occupants were looking for someone to come out of the store. He looked through his binoculars at the car and saw two white males inside with Appellant driving. As Appellant circled the parking lot a third time, Officer Barber noticed the vehicle speed up as it passed the front of the store and then it sped out of the parking lot with the passenger slumped in his seat so that it was almost impossible to see him. Officer Barber immediately went to the front of the store where Mrs. Paulin was lying on the ground.

          Mrs. Paulin testified that a car struck her and the passenger of the car had stolen her purse. The blue Mercury belonged to Appellant's mother and had been taken without her permission. The jury was authorized to believe that it was the blue Mercury which struck Mrs. Paulin and that it was driven by Appellant. Dumas v. State, (Tex. Crim. App.) 680 S.W.2d 549, 553. Moreover, while flight from the scene of a crime alone will not support a guilty verdict, it is a circumstance from which guilt may be inferred. Foster v. State, (Tex. Crim. App.) 779 S.W.2d 845, 859.

          Appellant argues that the evidence was insufficient to prove he intentionally hit Mrs. Paulin and that it is possible he hit her through an act of negligence. A culpable state of mind is almost always proved by circumstantial evidence. Warren v. State, (Tex. App.—Houston [14th Dist.], pet. ref'd) 797 S.W.2d 161, 164. The jury was entitled to consider events that occurred before, during, and after the commission of the offense to determine Appellant's intent. Barron v. State, (Tex. Crim. App.) 566 S.W.2d 929, 931. If Appellant had struck Mrs. Paulin through negligence, he would have stopped and rendered aid. The jury was authorized to believe that Appellant intentionally hit Mrs. Paulin.

          Appellant further argues the evidence is insufficient to prove he knew his passenger was going to snatch Mrs. Paulin's purse and, consequently, he could not be a party to the offense. Circumstantial evidence may be used to prove one is a party to an offense. Beir v. State, (Tex. Crim. App.) 687 S.W.2d 2, 4. Appellant was present at the scene of the crime. He fled the scene with his accomplice in the same car. We think the jury was authorized to infer Appellant and his passenger were engaged in a common design to rob Mrs. Paulin.

          Point two is overruled and the judgment is affirmed.

                                                                                 FRANK G. McDONALD

                                                                                 Chief Justice (Retired)

Before Justice Cummings,

          Justice Vance and

          Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed January 13, 1993

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