Wilson, Paul Emile v. State ( 2004 )

Affirmed and Memorandum Opinion filed February 19, 2004

Affirmed and Memorandum Opinion filed February 19, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00173-CR

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PAUL EMILE WILSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 903,783

M E M O R A N D U M   O P I N I O N

The jury found appellant guilty of aggravated robbery and the trial court assessed punishment at twelve years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In four points of error, appellant contends (1) the trial court erred in failing to grant a mistrial after the trial court admitted evidence of an extraneous offense, (2) the trial court erred in admitting the testimony of a witness because the State had not provided notice she would be a witness, and (3, 4) the evidence identifying appellant as one of the robbers was legally and factually insufficient.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 31, 2002, the complainant, Ronnie Moss, received a Veteran=s Administration check.  His friend, Joe White, drove him to a local check-cashing establishment. Moss cashed the check and was given a clear bag containing $2,000 worth of ten-dollar bills.  He placed the bag in his pants and White drove him back to his apartment.

Before returning to his apartment, Moss stopped on the sidewalk to give his granddaughter $500.  Moss and White then went into the apartment.

Someone knocked at the door, and Moss opened it.  Two men forced their way into the apartment, and one held a gun to Moss=s head while the other took the money.  The two men fled and Moss called the police.

At trial, Moss identified appellant as the man who had taken the money.  Moss also testified that he recognized appellant from the neighborhood.

ANALYSIS

I.        Evidence of an Extraneous Offense

In his first point of error, appellant contends the trial court erred in failing to grant a mistrial because testimony of an extraneous offense denied him a fair and impartial trial.  Appellant complains of testimony by Moss that implied appellant was a Acrack head@who sold drugs.^[1]  The trial court sustained appellant=s objections to the testimony and instructed

the jury to disregard it.^[2]  Appellant argues the instruction failed to cure the error.

We review a trial court=s denial of a motion for mistrial under an abuse of discretion standard.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).  A mistrial is required only when the improper evidence is Aclearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury.@  Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999).  Typically, any harm caused from an improper question and answer is cured by an instruction to disregard.  Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). The jury is presumed to follow the trial court=s instruction to disregard improperly admitted evidence. Hinojosa, 4 S.W.3d at 253.

The testimony appellant complains of was not solicited by the State, but was rather an unresponsive answer to a question about whether the apartment complex was a common place for people to congregate.  The court immediately instructed the jury to disregard the statement. In addition to giving the instruction to disregard, the court asked the jurors whether they could disregard the statement and instructed them that they were to notify the court if the statement became a factor in deliberations.  No further mention of the extraneous offenses was ever made.  Given these facts, the trial court could have reasonably concluded that the evidence was not so inflammatory that the jury could not disregard it.  Appellant=s first point of error is overruled.

II.       Failure to Provide Notice of a Witness

In his second point of error, appellant contends the trial court erred in admitting the testimony of a witness because the State had not provided notice that she would be a witness.  Appellant objected that she was a surprise witness because her name had not been included on the State=s subpoena list.  The trial court allowed her to testify during the State=s case-in-chief, but limited her testimony to rebuttal of testimony elicited by appellant during cross-examination of previous witnesses.

We review a trial court=s decision to permit the testimony of a witness whose name is not furnished to the defendant for an abuse of discretion.  Bridge v. State, 726 S.W.2d 558, 566 (Tex. Crim. App. 1986).  Among the factors we consider in determining whether the trial court abused its discretion are (1) whether the State acted in bad faith in failing to disclose the witness=s name and (2) whether the defendant could have reasonably anticipated the witness would testify.  Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993). 

A defendant has the right to timely notice of all witnesses the State intends to call at trial.  Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App. 1977).  However, the State is not generally required to disclose the identity of rebuttal witnesses.  See Elkins v. State, 543 S.W.2d 648, 649 (Tex. Crim. App. 1976); Hoagland v. State, 494 S.W.2d 186, 188B89 (Tex. Crim. App. 1973); cf. Young, 547 S.W.2d at 27 (holding that the State was not required to disclose punishment witness in response to a pre-trial motion because the State did not know what witnesses it would call at the time of the motion).  ATo require the State to anticipate any possible defense of an accused and to furnish names of all possible witnesses and have the court refuse to permit them to testify if their names were not listed would be to require an impractical and undue burden.@  Hoagland, 494 S.W.2d at 189.

Although the witness was called to testify during the State=s case-in-chief, her testimony was limited to rebuttal of evidence elicited by appellant during cross-examination.  There is some contrary authority that A[r]ebuttal testimony can be introduced only after the parties have closed the evidence offered in chief.@  Greenstein, Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 179 (Tex. App.CWaco 1987, writ denied) (citing rule 265 of the Texas Rules of Civil Procedure, which is similar to article 36.01 of the Texas Code of Criminal Procedure).  However, the Texas Court of Criminal Appeals has held that evidence of extraneous offenses is admissible to rebut defensive theories raised during cross-examination of the State=s witnesses.   Ransom v. State, 920 S.W.2d 288, 300B01 (Tex. Crim. App. 1994); see also Webb v. State, 36 S.W.3d 164, 180 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Because the witness=s testimony was limited to rebuttal of theories raised by appellant during cross-examination of the State=s witnesses, we consider her a rebuttal witness.  Therefore, absent a showing of bad faith, the trial court would not have abused its discretion in allowing her to testify.  See Marx v. State, 953 S.W.2d 321, 338 (Tex. App.CAustin 1997), aff=d, 987 S.W.2d 577 (Tex. 1999) (AAbsent a showing of bad faith, a trial court does not abuse its discretion by allowing the State to call a witness for the sole purpose of rebutting unforeseen testimony.@).

The record fails to show bad faith on the part of the prosecutor.  The prosecutor who tried the case testified that the witness was not listed on the offense report and that she only learned about the witness the day before the witness was called to testify.  This evidence does not show bad faith.  See Doherty v. State, 892 S.W.2d 13, 18 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (holding that there was no evidence of bad faith when A[t]he prosecutor stated that he did not know of the witness= existence until the night before@ and Ahe did not determine that her testimony would be needed until the next day when the defense put on a witness that [the witness] would contradict in rebuttal@).  Appellant=s second point of error is overruled.

III.      Sufficiency of the Evidence Supporting Identification

In his third and fourth points of error, appellant contends the evidence identifying him as one of the robbers was legally and factually insufficient.  The only evidence identifying appellant as one of the robbers was the testimony of Moss.  Appellant argues this testimony was not credible because no fingerprint evidence linked him to the offense, none of the property taken was found in his possession, and White testified the robbers wore bandanas over their faces.

In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991); see also Swearingen v. State, 101 S.W.3d 89, 94 (Tex. Crim. App. 2003).

In reviewing factual sufficiency, we look at all of the evidence in a neutral light, and will reverse a conviction only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Thus, we must determine Awhether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).

The fact finder is the sole judge of the weight and credibility of witness testimony, and a reviewing court may not substantially intrude on that role.  Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).  Contradictions in a witness=s testimony do not render the evidence insufficient, but affect its weight and credibility.  Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986);  Landers v. State, 110 S.W.3d 617, 621 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  Positive in‑court identification of a defendant by the victim of a robbery is to be given great weight.  Jones v. State, 687 S.W.2d 430, 432 (Tex. App.CHouston [14th Dist.] 1985, no pet.); see also Haywood v. State, 507 S.W.2d 756, 758 (Tex. Crim. App. 1974).  The jury may choose to believe or disbelieve any portion of a witness=s testimony.  Losada v. State, 721 S.W.2d at 309; Landers v. State, 110 S.W.3d at 621.

The evidence in support of the verdict was Moss=s testimony that he was Aa hundred percent@ sure that appellant was one of the men who robbed him. Appellant contends that there was no corroborating evidence, such as fingerprint evidence or evidence of property recovered from appellant.  However, the positive identification of appellant as one of the robbers does not need to be supported by corroborating evidence in order to be sufficient to support the conviction.  See Jones v. State, 500 S.W.2d 661, 666 (Tex. Crim. App. 1973); Moore v. State, 446 S.W.2d 877, 878 (Tex. Crim. App. 1969).  The evidence was thus legally sufficient to support the verdict. Appellant=s third point of error is overruled.

Finally, appellant also contends that, if the robbers wore bandanas as White testified, Moss=s testimony that he could see their faces was not credible. White also testified, however, that appellant=s bandana kept falling down, and that the bandana was down when appellant was facing Moss.^[3]  Moss=s testimony is not undermined, because this testimony adequately explains why Moss was able to identify appellant while White was not. Thus, the evidence was factually sufficient to support the verdict.  Appellant=s fourth point of error is overruled.

The judgment of the trial court is affirmed.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed February 19, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The full testimony was as follows:

Q:         Let me back up.  When you met your granddaughter on the sidewalk that dayC

A:         Uh-huh.

Q:         Chow far was that from the parking lot or from the entrance?

A:         Oh, from the entrance.  From here to you, I=m sorry.  I misunderstood you.

Q:         That=s okay.  Is that a common area for people to congregate that you know of?

A:         Yes, ma=am, it is.  That=s where all the crack heads, everybody sold drugs hung out there, including this gentleman here. 

^[2]  The judge=s instruction was as follows:

The last response, the non-responsive response from Mr. Moss was clearly inflammatory, irrelevant, had nothing to do at all with this case.  I am telling you right now you are to disregard the last response from Mr. Moss concerning a crack head and alluding to the fact that Mr. Wilson is a crack head in any way.  It=s not relevant.  There is no evidence in any way.  I am going to tell you:  You are to disregard the last response right now and throughout this trial.  And going back to the deliberation room, if anyone brings up that response from him in your deliberation, you are to contact the Court immediately and the Court is going to excuse you at that time.  We can=t try these cases with irrelevant evidence such as this and non-responsive responses from the witnesses such as Mr. Moss just did.  We want a fair trial for everybody involved in this case.  We can=t do it if anyone is going to take that into consideration in your individual verdict. Right now can I have your guaranteeCand there is nothing wrong with saying, no, I probably will consider it.  If you feel that way, let us know right now because we are going to stop this case right now.  There is no problem.  We will start with a fresh jury and that will never happen again.  Do I have the assurance from all of you, at least right now, that you will not in any way individually take that into consideration, the last response from Mr. Moss in your own individual deliberation? Everybody agrees?  When you get back there in deliberations, if anyone brings this up in any way, form or fashion, you ring that bell, let us know, and we will declare a mistrial at that time.  I count on you to do this.  This should never have happened at all.  It will not happen again.

^[3]  The relevant testimony was as follows:

Q:         Now, did he have that bandana up around his face the whole time?

A:         Like right there.  Well, not whenCwhen they had their back turned, going in Mr. Ronnie=s pocket, it was down because they kept pulling it up.  That=s when Mr. Ronnie seen them, but I didn=t see nothing but their backs.