Gregory Smith v. State ( 2010 )

Opinion issued July 8, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00194-CR

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Gregory Smith, Appellant

V.

The State of Texas, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Case No. 1188927

MEMORANDUM OPINION

A jury convicted appellant, Gregory Smith, of aggravated robbery.[1]  The jury assessed punishment at 35 years’ imprisonment.  In two issues, appellant argues that the trial court erred (1) in overruling his objection to the admission of videotaped evidence and (2) in overruling his objection to the prosecutor’s characterization of him.

We affirm.

BACKGROUND

          On March 6, 2008, appellant entered the EZ Money Loan store on I-10 and Lockwood in Houston, Texas.  He entered the store alone and spoke with Brenda Hernandez, an employee of the store.  Appellant asked Hernandez about the requirements for a loan and left shortly thereafter.  One to two minutes after appellant left the store, two African-American men dressed in black entered.  They asked Hernandez about the requirements for a loan and then pointed guns at her and demanded that she give them the money from her cash drawer.  The cash drawer contained a dye pack that would explode if taken out of the store.  The two men took the money but left the dye pack.  They then ordered Hernandez to open the safe.  A ten minute time delay protected the store’s safe, so, after Hernandez entered the code, she and the two men had to wait for ten minutes for the safe to open. As they waited, one of the men made a cell phone call and indicated to the person on the other end of the line how long they would be in the store. 

During the robbery, Hernandez’s boss, Aida Duenas Garcia, was in the surrounding neighborhood distributing advertisements for the store with her son, James Hart.  While she was out, she attempted to call Hernandez several times on her cell phone, but Hernandez did not answer.  Garcia considered it unusual for Hernandez not to answer her cell phone, and she began to drive back to her store.  While she was driving back, she called the EZ Pawn, located next door to her store, and asked them to use their surveillance cameras to determine whether there was a problem in the EZ Money store.  As she approached her store, Garcia saw appellant sitting in a car and two men dressed in black inside the store. Garcia and her son watched the robbery taking place on the surveillance camera in the EZ Pawn store, and Garcia called the police.  After the safe opened, the men took the money and ran out of the store.

          Sergeant F. Ortiz of the Houston Police Department (HPD) responded to Garcia’s emergency call.  As he approached the store, he saw two men armed with pistols, one of whom was wearing a red hat, exit.  He identified himself as a police officer and ordered the two men to lie on the ground. The men ran, and Sergeant Ortiz returned to his police cruiser to follow them.  As he approached them in his cruiser, the men climbed into a gray Toyota, driven by appellant.   Appellant drove away quickly, and Sergeant Ortiz, with his sirens on, followed.    Appellant drove as fast as 80 miles per hour and traveled through several intersections without stopping.  Appellant eventually lost control of the Toyota, and it crashed. Appellant and the two other men exited the vehicle and began to run. With the assistance of other police officers and a police helicopter, all three men were arrested.  The police officers brought Hernandez, Garcia, and Hart to the location where they held the suspects, and Hernandez and Garcia identified them as the robbers.  The State obtained an indictment against appellant for the armed robbery of Brenda Hernandez.   

          At trial, the State called nine witnesses, and appellant testified in his own defense.  As its first witness, the State called Richard Selser, the regional loss prevention investigator for EZ Corporation.[2]  He testified that this store was in his region, that each EZ Money store has a surveillance camera in it, and that the camera’s digital recordings are kept on a computer in each store for 60 days.   Selser testified that he was the custodian of the video surveillance recordings made at the stores in his district.  He testified that he arrived at the scene of the robbery about twenty minutes after it occurred.  After arriving at the store, he went to the computer that held the surveillance video for the store and burned several copies of the video onto individual compact disks.  He gave one of these compact disks to a police officer, but he testified that he could not remember the name of that officer.  He testified that the compact disk offered as State’s Exhibit 2 was the disk that he had given to the police and that it did not appear to have been altered in any way.  Over defense counsel’s objection, the court admitted the compact disk as State’s Exhibit 2.

The State then called Garcia.  She testified that when the robbery occurred, she was not in the store but was in the surrounding neighborhood distributing advertisements for the store.  She called Hernandez’s cell phone to see if she wanted something to drink, but Hernandez did not answer.  Garcia testified that it was unusual for Hernandez not to answer her cell phone and that this prompted her to call the EZ Pawn store, located next to the EZ Money store, and have the manager of the EZ Pawn use his surveillance camera to see if there was a problem in the EZ Money store.  As she approached her store, she could see two African-American men, dressed all in black, inside.  As she got closer, she also saw a car with its flashers on parked near her store.  She did not remember the color of the car, but she remembered that appellant was sitting in the driver’s seat and that he looked worried.  She testified that she was within ten or fifteen feet of appellant. She and her son entered the EZ Pawn store and watched on its surveillance camera as two men robbed Hernandez.  She saw the two men flee and a police officer pursue them.  She then entered her store to check on Hernandez.  The police arrived and took her and her son, James Hart, to identify the suspects.  

          The State then called Hart.  He testified that, as he and his mother approached the EZ Money store, he noticed a Toyota Camry parked behind the store with its flashers on and recorded its license plate number.  Appellant was in the driver’s seat of the Camry and was watching the corner of the EZ Money store.  He and his mother entered the EZ Pawn, and he saw two men run from the EZ Money store. He gave the license plate number to the police department.   

          After the State rested, appellant testified in his own defense.  He testified that on the day of the robbery he went to the Mobil station near the EZ Pawn and EZ Money stores to return a car he had borrowed.  He intended to meet his grandson, Desmond Eugene, and while he waited for his grandson he went into the EZ Money store and asked about the requirements for getting a loan.  He testified that he forgot to take the loan application with him as he was leaving, but the clerk reminded him to take it with him.[3]  As he left the store, he saw his grandson with a friend, Derek Thomas.  His grandson told him that they were going into the EZ Pawn store to inquire about wheels for a car.  Appellant testified that he went to his car, turned it around, and waited for his grandson and Thomas.

Appellant testified that he waited fifteen to twenty minutes before Eugene and Thomas came back to the car and that he did not see any weapons when they got into the car.  He then drove off.  After he had driven “half-way down the street,” a police car pulled behind him and turned its sirens on.  Appellant admitted that he attempted to evade the police car and that, in doing so, he drove fast and ran stop signs.  He testified that his reason for fleeing was that “he panicked” because he did not want to go back to jail.  He admitted to many prior convictions and to providing the police with aliases to avoid the consequences of unspecified tickets.  He further testified that after he lost control of the car, he and the other two men ran from the police.  He testified that he did not know that the other two men were going to commit a robbery. He did not see any of the guns or money that were recovered from the Toyota until after the car was wrecked.[4]    

          On cross-examination, the prosecutor asked appellant what his occupation was, and then the following exchange occurred:

Prosecutor:           When you’re not doing that sort of work, you steal?

Defense:                Objection to the relevance.

Appellant:            I work.

Trial Court:          Overruled.

          . . .

Prosecutor:           In order to steal, you have to lie, don’t you?

Appellant:            That’s past tense what I’ve done, though, Miss.

Prosecutor:           In order to steal, you have to lie, right?

Defense:                Judge, once again, it’s argumentative.

Trial Court:          Overruled. Answer the question.

Appellant:            Yes, ma’am.

Prosecutor:           All right. So, is it fair to say those certain times you’ve been convicted you’re also a liar?

Appellant:            I’m not a liar.

Prosecutor:           Well, you steal, don’t you?

Appellant:            I’ve stole before.

Prosecutor:           But when you steal, you have to lie to do it, right?

Appellant:            Yes, ma’am.

. . .

Prosecutor:           Okay. So, all the jury has to go on is the word of you, who is a convicted liar, that that was actually going on, right?

Defense:               I’m going to object to the way that question is phrased.  He’s never been convicted of lying judge.

Trial Court:          Sustained.

Prosecutor:           All they have to go on is your word, right, Mr. Smith?

Appellant:            Yes, ma’am.

          The jury convicted appellant and assessed his punishment at 35 years’ imprisonment.

ANALYSIS

          In his first issue, appellant contends that the trial court erred in admitting videotaped evidence because the State had not established a proper predicate for its admission.

A. Standard of Review

We review the admission of evidence by the trial court for abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).  So long as the trial court’s decision is within the zone of reasonable disagreement, we will not disturb it on appeal. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).

B. Analysis

Rule of Evidence 901 provides that evidence must be authenticated before it may be admitted.  Tex. R. Evid. 901.  The requirement for authentication “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”  Id. 901(a).  The rule provides examples “of authentication or identification conforming with the requirements of this rule.” Tex. R. Evid. 901(b). The example relevant to this case is, “Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.”  Id.  901(b)(1); see Thiery v. State, 288 S.W.3d 80, 88–90 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); Page v. State, 125 S.W.3d 640, 648–49 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).  Generally, proof of the beginning and end of the chain of custody will support admission of the evidence barring any showing of tampering or alteration. See Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989). 

          Appellant argues that Selser could not authenticate the recording because, while he was the loss prevention officer, he was not present during the robbery, he did not maintain the recording equipment, and he testified that he had not seen the videotape since he gave it to the police.  However, Selser testified, among other things, that he was the custodian of the surveillance tapes that are generated in the stores he supervises, that he arrived at the store approximately twenty minutes after the robbery, that he personally made several copies of the recording of the robbery, that he gave one copy to an unidentified police officer, and that the compact disk admitted as State’s Exhibit 2 was one of the disks that he burned for the police on the day of the robbery.  There was no showing of tampering or alteration.  See Stoker, 788 S.W.2d at 10.  Thus, Selser was a witness with personal knowledge that the disk was what the State claimed it to be.  See Tex. R. Evid. 901.  Therefore, we conclude that the trial court did not abuse its discretion in admitting the recording of the robbery based on Selser’s authentication.  See McDonald, 179 S.W.3d at 576; Thiery, 288 S.W.3d at 88–90; Page 125 S.W.3d at 648–49.

          We overrule appellant’s first issue.

PROSECUTORIAL MISCONDUCT

In his second issue, appellant contends that the prosecutor’s characterization of him as a liar constituted prosecutorial misconduct.

A. Standard of Review

An objection stating one legal theory may not be used to support a different legal theory on appeal.  Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).  Prosecutorial misconduct is an independent basis for objection that must be specifically urged in order for error to be preserved. Hajjar v. State, 176 S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d); see also Hernandez v. State, 914 S.W.2d 218, 225 (Tex. App.—El Paso 1996, pet. ref’d) (defendant must object that prosecutor’s question was clearly calculated to inflame minds of jury and was of such character so as to suggest impossibility of withdrawing  impression produced) (citing Huffman v. State, 746 S.W.2d 212, 218 (Tex. Crim. App. 1988)).  The proper method of preserving error resulting from prosecutorial misconduct is to (1) object on specific grounds, (2) request an instruction for the jury to disregard the evidence or argument, and (3) move for mistrial. Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); Hajjar, 176 S.W.3d at 566.

B. Analysis

Here, appellant’s counsel objected to the prosecutor’s aggressive cross-examination on the basis that it was argumentative and irrelevant, but his objections gave the trial court no indication that he believed the prosecutor’s conduct was clearly calculated to inflame the minds of the jury and was of such a character that it could not be cured by an instruction to disregard. See Hernandez, 914 S.W.2d 225.  Nor did he request an instruction for the jury to disregard the statements and request a mistrial.  See Hajjar, 176 S.W.3d at 566. Thus his objection at trial did not comport with his argument on appeal, and his failure to request a jury instruction or a mistrial means that appellant has not preserved this for appellate review.  See id.; see also Broxton, 909 S.W.2d at 918.  Therefore, we conclude that appellant waived his complaint.

We overrule his second issue.

CONCLUSION

          We affirm the judgment of the trial court.

Evelyn V. Keyes

                                                                   Justice

Panel consists of Justices Keyes, Hanks, and Higley.

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

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[1]               See Tex. Penal Code Ann. § 29.03 (Vernon 2003) (providing elements for aggravated robbery).

[2]               EZ Money is a subsidiary of EZ Corporation, which also includes EZ Pawn.

[3]               The police recovered a loan application from his car.

[4]               Appellant also called Thomas and Eugene as witnesses, but they invoked their Fifth Amendment right not to incriminate themselves and were excused from testifying.