Abdullah, Stedmond ( 2015 )

January 22, 2015
NO. PD-1647-14
___________________________________________________
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
___________________________________________________
STEDMOND ABDULLAH,
PETITIONER
VS.
THE STATE OF TEXAS,
RESPONDENT
_______________________________________________________
Direct Appeal from the 102nd District Court of Bowie County, Texas
Seeking Review of Opinion Issued by Texas Sixth Court of Appeals
_______________________________________________________
PETITION FOR DISCRETIONARY REVIEW
_______________________________________________________
Jason Horton
jason@jasonhortonlaw.com
Texas Bar No.: 24041130
JASON HORTON LAW FIRM
Post Office Box 1596
Texarkana, Texas 75504
T-903-792-2000
F-903-792-2100
www.jasonhortonlaw.com
ATTORNEY FOR
PETITIONER
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ......................................................................................i
INDEX OF AUTHORITIES ............................................................................... ii
STATEMENT REGARDING ORAL ARGUMENT ........................................ 1
STATEMENT OF THE CASE ............................................................................ 2
STATEMENT OF PROCEDURAL HISTORY ................................................ 2
STATEMENT OF FACTS ................................................................................ 2
GROUNDS FOR REVIEW ............................................................................... 11
Ground One: The court of appeals’ application of Cantrell v.
State impermissibly expands the rationale behind this Court’s
decision, and, if permitted to stand, would only serve to further erode
the admissibility requirements of extraneous offense evidence.
Ground Two: The court of appeals misapplied existing
precedent to conclude that the admissible evidence presented at trial
sufficiently proved that an assault occurred in the course of
committing a theft.
ARGUMENT AND AUTHORITIES ................................................................ 11
PRAYER ............................................................................................................ 17
CERTIFICATE OF COMPLIANCE ............................................................... 18
CERTIFICATE OF SERVICE........................................................................... 18
APPENDIX (Opinion of the Texas Sixth Court of Appeals)
i
INDEX OF AUTHORITIES
CASES Page
Abdullah v. State, 06-13-00257, __S.W.3d __, 2014 WL 6450482
(Tex. App.—Texarkana 2014) ................................................10,11,12,13,14
Cantrell v. State, 731 S.W.2d 84
(Tex.Crim.App. 1987) .........................................................................11,12,13
Clayton v. State, 235 S.W.3d 772
(Tex.Crim.App. 2007) .................................................................................15
Cooper v. State, 67 S.W.3d 221
(Tex.Crim.App. 2002) ............................................................................14,17
Johnson v. State, 541 S.W.2d 185
(Tex.Crim.App. 1976) .................................................................................16
Sorrells v. State, 343 S.W.3d 152
(Tex.Crim.App. 2011) .................................................................................11
Whitfield v. State, 14-11-00847-CR, __S.W.3d__, 2012 WL 5208542
(Tex.App.—Houston [14th Dist.] 2012) ......................................................16
STATUTES and RULES
Texas Penal Code § 29.03 .............................................................................11
ii
NO. PD-1647-14
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
ABDULLAH STEDMOND PETITIONER
VS.
THE STATE OF TEXAS RESPONDENT
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the Petitioner, Stedmond Abdullah, by and through his attorney,
Jason Horton, and respectfully urges this Court to grant discretionary review in the
above-named cause pursuant to the Texas Rules of Appellate Procedure.
STATEMENT REGARDING ORAL ARGUMENT
Petitioner requests oral argument. Petitioner was sentenced to forty-five years
in prison. Oral argument would substantially assist this Court in determining any
unresolved factual and/or procedural issues, as well as permit Petitioner’s counsel the
opportunity to respond to questions the Court may have regarding the consequences of
Petitioner’s requested relief.
1
STATEMENT OF THE CASE
Petitioner was tried to a Bowie County jury and convicted of one count of
aggravated robbery, receiving a sentence of forty-five years in prison. On direct
appeal, Petitioner contended that the trial court committed reversible error by
admitting extraneous offense evidence and permitting improper closing argument.
Petitioner also contended that the evidence was insufficient to establish a nexus
between the alleged assault and theft, which was required to sustain an aggravated
robbery conviction. The court of appeals affirmed Petitioner’s conviction, and
Petitioner now petitions this Court for review of the court of appeals’ decision.
STATEMENT OF PROCEDURAL HISTORY
On November 18, 2014, the court of appeals affirmed Petitioner’s conviction in
a memorandum opinion not designated for publication. See Appendix. Petitioner did
not file a motion for rehearing. Petitioner sought, and obtained, an extension to file
this petition, making this petition due on or before January 19, 2015.
STATEMENT OF FACTS
A. The Charged Offense
On June 28, 2012, as Danielle Boone was unlocking the front door to her house,
an unknown black male appeared on her front porch and said “Hey.” When she
looked in his direction, she saw a silver and black pistol in his hand. With her six-
2
year-old daughter in tow, Danielle scurried to get inside her house and locked the
deadbolt before the black male could gain entry. (5 RR 73-74) Danielle took her
daughter into the bathroom and called 911. (5 RR 75)
State’s Record Exhibit 8 was the video from the responding police officer’s
dashcam. A rare find in most criminal cases, the officer’s body microphone recorded
Danielle as she gave an immediate account of what had just transpired. Danielle told
the officers that she had never seen the black male before; she gave a general
description; and she told the officers that the suspect only said “Hey” when he
approached. Danielle informed the officers that her purse was still in her car, but her
wallet was missing.
Even though the suspect had a pistol in his hand, the tone of Danielle’s voice
gives the impression that the suspect said “Hey” in a non-threatening manner.
Danielle did not say the suspect pointed the pistol at her. This might explain why the
officers are recorded saying, “I mean, I could see the gun placing [Danielle] in fear or
whatever, but [the suspect] didn’t request money so it is more like a Deadly Conduct /
Burglary of a Vehicle Charge.” See State’s Record Exhibit 8.
At some point after the incident, Danielle described the unknown black male to
her friend LaTraye Johnson. Danielle and Johnson got on Facebook and reviewed a
few profile photos before coming to Stedmond Antwine’s Facebook page. As they
3
weren’t Facebook “friends” with Antwine, they could only see his profile picture.
Nevertheless, the suspect’s distinct facial features led Danielle to believe that Antwine
was her assailant. (4 RR 6-9)
Armed with this information, Danielle traveled to the Bi-State Justice Building
to give another statement to law enforcement. Her entire interview was recorded and
admitted as part of State’s Record Exhibit 8. Danielle, again, initially said the suspect
was pulling a gun and/or raising his arm when she looked over at him.
A lineup was prepared that included a person who law enforcement knew went
by the name Stedmond Antwine. After Danielle said “maybe” to lineup picture
number 2, Danielle unequivocally and immediately said “yes” when she saw lineup
picture number 4. Danielle said she was 1000% (one thousand percent) sure that
number 4 was her assailant. Number 4 was Petitioner, Stedmond Abdullah. See
State’s Record Exhibit 8.
After she positively identified Petitioner, Danielle questions the officer as to
why Petitioner was only being charged with burglary of a vehicle when Petitioner had
a gun and placed her and her daughter in such fear. Danielle was afraid because
whoever had her wallet knew who she was and where she lived. The officer said that
he would look through the statutes and determine whether the offense could be
upgraded. Danielle then, for the first time, modified her story and said Petitioner
4
pointed the gun at her. See Chapter 3-4 of State’s Record Exhibit 8. It is undisputed
that the initial offense report indicated the assailant did not point the gun at Danielle.
(5 RR 48) Nevertheless, after Danielle positively identified Petitioner as her assailant,
Detective Will Scott upgraded the charge from burglary of a vehicle to aggravated
robbery. (5 RR 55)
The State conceded that the only evidence tying Petitioner to the crime was
Danielle’s identification. (2 RR 7) Danielle provided the only evidence that
something was stolen from her car. (5 RR 54) Petitioner did not make any demand
for money. (5 RR 54) No physical evidence tied Petitioner to the theft of Danielle’s
wallet. (5 RR 60)
B. The Extraneous Arkansas Robbery
Two days after Danielle called 911, another robbery was reported at the
Ambassador Inn in Texarkana, Arkansas. According to Google Maps, the traveling
distance between Danielle’s house (1922 W. 13th Street, Texarkana, Texas) and the
Ambassador Inn (200 Realtor Avenue, Texarkana, Arkansas) ranges from 4.6 miles to
6.0 miles.
Texarkana Arkansas Police Department (TAPD) Officer Edward Chattaway
responded to the Ambassador Inn robbery call. Chattaway made contact with
Petitioner while searching for the suspect. Petitioner initially fled on foot, but he was
5
quickly apprehended carrying a black and silver pistol. (5 RR 139-143) Outside the
presence of the jury, TAPD Detective Shane Kirkland testified that the victim of the
Ambassador Inn robbery, Travis Burnett, made a positive, in-person identification of
Petitioner as his assailant. (5 RR 100-101)
While Petitioner was in custody, TAPD Detective Wayne Easley interviewed
Petitioner regarding his involvement in the Ambassador Inn robbery. (5 RR 144)
Portions of the interview were played for the jury. (5 RR 149) Petitioner admitted
that he made contact with Burnett at the Ambassador Inn, but Petitioner told Easley
that he did not rob anyone. Petitioner said that he asked Burnett for a cigarette, and
Burnett gave Petitioner money after Burnett saw Petitioner’s gun sticking out of his
pocket. See State’s Exhibit 13.
Burnett was not called as a witness at trial. There was never a hearing
conducted whereby the State obtained a ruling that Burnett was “unavailable” to
testify. Rather, the State argued to the trial court as follows:
However, the issue here in regard to us not having the victim, we
do not have the victim from the Arkansas robbery. He was a truck
driver. Through great effort, we have been unable to locate him…
(5 RR 92)
Petitioner’s trial counsel objected to the introduction of the Arkansas robbery
on multiple grounds. (5 RR 34-44, 88-97, 105-121) Ultimately, the trial court
overruled Petitioner’s objections and permitted the jury to hear about the Arkansas
6
robbery for purposes of proving Petitioner’s identity and intent to commit theft of
Danielle’s property. (5 RR 121) According to the trial court:
…But the parallels I see between the two are that he acts alone, he
approaches people entering buildings, which, to me, is not how –
you know, when I think about two robberies, you know, I think
about E-Z Marts and banks. So that is a little significant. Again,
the fact it was a black and silver pistol, may or may not be the
same one. They’re similar in time, two days apart. Both occur at
night, and he was arrested at the scene on the Arkansas side. And
he was ID’d by the victim on the Texas side. So I’m going to let
you get into it, but we’re going to keep it very, very narrowly on
just what the police officers – and I think Will is right, I don’t
want – you can’t get into anything about what the victim told
them. (5 RR 116)
C. The Trial
While on the witness stand, Danielle made a dramatic positive identification of
Petitioner as her assailant. (5 RR 80) The jury then heard much detail about the
extraneous Ambassador Inn robbery from Detective Kirkland. (5 RR 122-129) After
the jury recessed for lunch, the trial court heard argument from counsel regarding the
admission of Petitioner’s recorded custodial interrogation performed after the
Ambassador Inn robbery. Despite Petitioner’s trial counsel’s efforts, the trial court
ruled that the video could be played for the jury as long as victim identification
information was redacted. (5 RR 137)
The State’s final two witnesses testified solely about the extraneous
Ambassador Inn robbery. The State rested after Petitioner’s custodial interrogation
7
was played for the jury. (5 RR 149, 155) Petitioner lodged his motion for directed
verdict, arguing that the State produced no evidence of theft or attempted theft to
support a conviction for aggravated robbery. (5 RR 162) The motion was denied. (5
RR 163)
During closing argument, Petitioner’s trial counsel made specific reference to
the State not calling the alleged victim of the extraneous Ambassador Inn robbery as a
witness. (5 RR 179) The following transpired during the State’s final argument:
STATE: …And the thing I am absolutely entitled to do in this
portion of my argument is to answer anything that he brought up. He directly brought
up to you that we didn’t produce a victim over from Arkansas. I am now allowed to
answer that question for you because he has misled you. That victim –
PETITIONER: Objection, Your Honor. May we approach?
STATE: He said it.
PETITIONER: They can’t get into any facts that are not in evidence.
STATE: You brought it up, and I get to answer it –
PETITIONER: It doesn’t matter –
THE COURT: Hold on a minute. One at a time. She can only type
one of you talking at a time.
PETITIONER: She’s going to have to take the witness stand and be
8
sworn in if she’s going to offer evidence.
STATE: No. How this works is, you cannot bring it up. You
cannot leave it out there. If I know the answer, I can now answer –
THE COURT: What were you saying?
STATE: That he’s not available to testify. He brought it up.
He cannot create an impression knowing that we know the answer and –
PETITIONER: They don’t know the answer, Your Honor. I don’t
know the answer because they didn’t bring him here.
STATE: This is rebuttal. He brought it up.
THE COURT: I wouldn’t touch on it very hard, Kelley.
STATE: Okay. But I can say that he’s unavailable.
THE COURT: Bring it to a pretty quick conclusion. Overruled, Will.
(OPEN COURT, DEFENDANT AND JURY PRESENT)
STATE: Okay. The witness is unavailable to testify. He’s not
available. I would love for him to be in here. He’s not available to testify, and I will
leave it at that. (5 RR 182-183)
* * *
After 30 minutes of deliberation, the jury had the following question: “Is the
intent to commit robbery applicable to this charge?” (5 RR 187-188) After being
9
instructed to refer to the court’s charge, the jury deliberated another 16 minutes before
finding Petitioner guilty of aggravated robbery. (5 RR 189)
On direct appeal, Petitioner raised the following three issues:
(1) The trial court erred by permitting the introduction of the extraneous
Ambassador Inn robbery because the facts of the charged offense and the
extraneous offense were not sufficiently similar, nor did the facts show a
pattern of conduct distinctive enough to constitute a “signature.”
(2) The evidence was insufficient to establish (1) a nexus between the
assault and the theft; or (2) that the assault occurred in the course of
committing theft.
(3) The trial court committed reversible error by permitting the State to
inform the jury, during final closing remarks, that the alleged victim of
the extraneous offense was “unavailable” to testify when the record
contained no evidence of his unavailability.
The court of appeals affirmed Petitioner’s conviction and sentence in an
unpublished memorandum opinion issued on November 18, 2014, finding (1) that the
evidence was legally sufficient to support Petitioner’s conviction, (2) that the
extraneous offense was admissible for the purpose of showing intent to commit theft,
and (3) that the State’s reference to the alleged Arkansas victim’s unavailability in
response to Petitioner’s comments about the alleged Arkansas victim’s absence was
harmless. Abdullah v. State, No. 06-13-00257-CR (Tex.App.—Texarkana, November
18, 2014, n.w.h.) (not designated for publication).
10
GROUNDS FOR REVIEW
Ground One: The court of appeals’ application of Cantrell v. State
impermissibly expands the rationale behind this Court’s decision, and, if permitted to
stand, would only serve to further erode the admissibility requirements of extraneous
offense evidence.
Ground Two: The court of appeals misapplied existing precedent to
conclude that the admissible evidence presented at trial sufficiently proved that an
assault occurred in the course of committing a theft.
ARGUMENT AND AUTHORITIES
Ground One
The focus of Petitioner’s trial centered on the State’s ability to prove Petitioner
committed an assault in the course of committing a theft. Danielle testified that she
was 1000% sure that Petitioner was the person who approached her with a gun and
said, “Hey.” Because Petitioner never demanded money, or anything else for that
matter, the State had to prove that “in the course of committing theft…, and with an
intent to obtain or maintain control of property, [Petitioner] intentionally or knowingly
threatened or placed [Danielle] in fear of imminent bodily injury or death.” Abdullah
at p.4, citing Sorrells v. State, 343 S.W.3d 152, 155 (Tex.Crim.App. 2011) and Tex.
Penal Code Ann. § 29.03(a)(2).
11
To prove this required nexus, the State introduced evidence of an extraneous
robbery. The jury, obviously concerned with this issue, posed the following question
during deliberations: “Is the intent to commit robbery applicable to this charge?” (5
RR 187-188)
Relying on Cantrell v. State, the court of appeals concluded that the extraneous
robbery was admissible to show Petitioner’s intent because the common
characteristics between the charged offense and the extraneous offense were
sufficiently similar. Abdullah at p.10. In Cantrell, the extraneous offense and the
charged offense were both (1) aggravated robberies, (2) committed at private
residences, (3) committed at approximately the same time in the morning, and (4)
“were committed at gunpoint shortly after the victim had awaken[ed] or was getting
ready to go to work…” Id.; citing Cantrell, 731 S.W.2d 84, 90 (Tex.Crim.App.
1987).
The court of appeals concluded that the similarities in Petitioner’s case were “of
greater quality than those relied on in Cantrell,” without making note of one important
distinction - the victim of the extraneous offense was present and testified at trial in
Cantrell. Here, despite “great efforts,” the State did not call the victim of the
extraneous offense to testify at Petitioner’s trial. The entire extraneous offense was
proven-up, over objection, by law enforcement officers and portions of Petitioner’s
12
recorded custodial interrogation.
In Cantrell, it was clearly shown during the trial of the charged offense that the
defendant brandished a knife and demanded money. That is an aggravated robbery.
Even though the defendant’s intent could have been inferred by his actions, the
defendant contested the issue of intent at trial, which caused the State to call another
one of the defendant’s victims to testify that the defendant pointed a pistol at her and
took her jewelry, gifts, cash, and other items and then stole her automobile. Abdullah
at p.9; citing Cantrell at p.88-89. Two victims testified about two separate, but
similar, crimes. That was the crux of this Court’s rationale in Cantrell.
Here, Petitioner did not demand anything from Danielle; he simply said “hey.”
Unlike the defendant in Cantrell, Petitioner’s intent could not be inferred from his
actions. Also unlike Cantrell, the State did not call the alleged victim of the
extraneous robbery as a trial witness, so two victims did not testify about two separate,
but similar, crimes.
The court of appeals’ reliance on Cantrell impermissibly expands the Cantrell
rationale, and, if permitted to stand, would only serve to further erode the
admissibility requirements of extraneous offense evidence. Without the inadmissible
extraneous offense evidence, the State could not have met its burden of proving the
elements of aggravated robbery. Just as one of the responding officers said
13
immediately after the incident, “I mean, I could see the gun placing [Danielle] in fear
or whatever, but [the suspect] didn’t request money so it is more like a Deadly
Conduct / Burglary of a Vehicle Charge.” See State’s Record Exhibit 8.
Ground Two
The court of appeals correctly cited Cooper v. State for the proposition that, if
the theft was a mere afterthought to the completed offense of assault, the evidence
would be insufficient to show that the assault occurred in the course of committing
theft. Abdullah at p.5; citing Cooper v. State, 67 S.W.3d 221, 224 (Tex.Crim.App.
2002) (Keasler, J, concurring). According to the majority of this Court in Cooper,
“[t]he general rule is still that a theft occurring immediately after an assault will
support an inference that the assault was intended to facilitate the theft.” 67 S.W.3d
221, 224 (Tex.Crim.App. 2002). However, according to the two concurring justices,
“[i]n a robbery case, the State still must prove that the theft occurred ‘in the course of’
the assault. The defendant must form the intent to commit the theft either before or
during the assault.” Id. at 225. The four dissenting justices also made note that,
“…proof of an assault followed by a theft without a showing that the assault was
committed with the intent of facilitating the theft is not enough to sustain a robbery
conviction.” Id. at 228.
Here, there was no evidence that Petitioner actually committed theft. Danielle
14
provided the only evidence that something was stolen from her car, and she did not
see Petitioner take anything. (5 RR 54) No physical evidence tied Petitioner to the
theft of Danielle’s wallet. (5 RR 60) Petitioner did not attempt to use Danielle’s debit
or credit cards prior to Danielle cancelling them. The only evidence of theft was
Danielle’s testimony that her wallet was in her car when she and her daughter went
into the house, and her wallet was not in her car when the police arrived to investigate
the charged offense. This evidence was insufficient to sustain an aggravated robbery
conviction.
Even if there is no evidence of the actual commission of a theft, an aggravated
robbery conviction can be sustained by proof that Appellant attempted to commit
theft. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). According to an
unpublished Houston court of appeals opinion, the following evidence supports an
inference that a defendant attempted to commit theft:
…(1) appellant and his cohort approached the store when it was
closed and there were no other nearby open businesses, both
wearing dark-colored clothing, hats, masks, and gloves; (2)
appellant had an empty bag and a handgun with him; (3) appellant
purposefully brandished his loaded handgun at the store
employees; (4) he and his cohort ordered the employee outside the
store to stay on the ground and then ordered him to get up; (5)
appellant attempted to open the front door of the store and pointed
his loaded handgun at the employee inside the store; (6) appellant
and his cohort fled the scene when they realized that the employee
inside the store had a gun; (7) appellant acted suspiciously when
he saw a patrol car by slowing from a run to a walk, discarding his
15
hat, gloves, mask, empty bag, and gun; and (8) he initially refused
to stop when ordered to do so by Gustafson. From this evidence,
the jury could reasonably have inferred that appellant's conduct
occurred “in the course of committing theft.”
Whitfield v. State, No. 14-11-00847-CR, 2012 WL 5208542, *2 (Tex.App.—Houston
[14th Dist.] 2012).
Here, unlike the defendant in Whitfield, Petitioner was not wearing a mask or
gloves when he approached Danielle on her porch. Petitioner did not have an empty
bag to place money in, nor did Danielle’s initial statement indicate Petitioner pointed
the gun at her. Petitioner did not request money or make any other demands or order
Danielle to do anything; Petitioner simply said “hey.” While it is understood that a
specific verbal command is not the talisman of an intent to steal, intent must
nonetheless be rationally inferred from the evidence presented. Johnson v. State, 541
S.W.2d 185, 187 (Tex.Crim.App. 1976). Simply saying “hey” while brandishing a
firearm is insufficient to create such an inference.
Even though Petitioner never demanded anything from Danielle, the court of
appeals concluded that a theft occurred based solely on Danielle’s testimony that her
wallet was missing after her encounter with Petitioner. Other than the inadmissible
extraneous offense evidence described above, the State offered nothing to prove that
Petitioner formed an intent to commit theft either before or during an assault. Even
though a theft occurring immediately after an assault will support an inference that the
16
assault was intended to facilitate the theft, a correct application of the Cooper analysis
to the facts of Petitioner’s case should yield a result contrary to that reached by the
court of appeals.
PRAYER
WHEREFORE, Petitioner Stedmond Abdullah prays that the Court of
Criminal Appeals grant this Petition for Discretionary Review and reverse the
decision of the court of appeals, thereby rendering a verdict of acquittal. In the
alternative, Petitioner prays that this Court will reverse the court of appeals and
remand his case to the trial court for a new trial.
Respectfully submitted,
JASON HORTON LAW FIRM
114 West Broad Street
Texarkana, Texas 75501
Mail To:
Post Office Box 1596
Texarkana, Texas 75504
T-903-792-2000
F-903-792-2100
BY: /s/ Jason Horton
Jason Horton
jason@jasonhortonlaw.com
Texas Bar No. 24041130
ATTORNEY FOR PETITIONER
17
CERTIFICATE OF COMPLIANCE
I certify that this document was prepared with Microsoft Word, and that,
according to that program’s word-count function, the sections covered by Tex. R.
App. P. 9.4(i) contain 3,399 words.
/s/ Jason Horton
Jason Horton
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has been
electronically forwarded to the following listed persons this 19th day of January, 2015:
Mr. Jerry Rochelle
Bowie County District Attorney
601 Main Street
Texarkana, Texas 75501
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
/s/ Jason Horton
Jason Horton
18
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00257-CR
STEDMOND ABDULLAH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 102nd District Court
Bowie County, Texas
Trial Court No. 13F0013-102
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Danielle Boone’s seven-year-old daughter planned to spend a happy summer night at her
grandmother’s house. The child and her mother packed the child’s belongings and headed to a
local gas station. Boone realized that she had forgotten to pack her daughter’s dolls and drove
home to retrieve them. The car doors were left unlocked as Boone and her daughter approached
the house. Boone was in the process of unlocking her front door when she heard someone step
on her porch and say, “[H]ey.” When she turned around, Boone saw an unmasked African-
American male pointing a silver and black pistol in her direction.
Boone, who was scared for her life, began screaming but was not paralyzed by her fear.
In an instant, she managed to unlock the front door, get inside, and usher her daughter inside to
safety. The man lurched at the door and attempted to open it, but Boone was able to turn the
door’s deadbolt. She ran to the back of the house, released her dog through the back door to
scare the perpetrator, and called the police. When Texarkana, Texas, police officers arrived,
Boone exited her house, noticed that her car door was slightly ajar and discovered that her wallet
had been stolen.
Two days later, the police arrested Stedmond Abdullah in Texarkana, Arkansas, in
connection with another aggravated robbery. Abdullah was carrying a silver and black pistol at
the time of his arrest. When presented with a photographic line-up, Boone identified Abdullah
as the person who pointed a gun at her and her daughter. At trial, Boone also made an in-court
identification of Abdullah as the perpetrator and testified that the gun retrieved during
2
Abdullah’s Arkansas arrest looked like the gun that had been pointed at her. Abdullah was
convicted by a jury of aggravated robbery and was sentenced to forty-five years’ imprisonment.
On appeal, Abdullah argues (1) that the evidence is legally insufficient to show (a) that
the aggravated assault occurred in the course of committing theft or (b) that a theft occurred, as
alleged in the State’s indictment, (2) that the trial court erred in admitting evidence of the
extraneous Arkansas aggravated robbery, and (3) that the trial court erred by allowing the State
to inform the jury that the victim of the Arkansas aggravated robbery was unavailable to testify
when the record contained no evidence of unavailability as that term is used in Rule 804 of the
Texas Rules of Evidence. We find (1) that the evidence was legally sufficient to support
Abdullah’s conviction, (2) that the extraneous offense was admissible for the purpose of showing
intent to commit theft, and (3) that the State’s reference to the victim’s unavailability in response
to Abdullah’s comments about the Arkansas victim’s absence was harmless. Consequently, we
affirm the trial court’s judgment.
I. The Evidence Was Legally Sufficient to Support Abdullah’s Conviction
Abdullah challenges the legal sufficiency of the evidence. In evaluating legal
sufficiency, we review all the evidence in the light most favorable to the jury’s verdict to
determine whether any rational jury could have found aggravated robbery beyond a reasonable
doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana
2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our
rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323
3
S.W.3d at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction
of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson,
443 U.S. at 318–19).
Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,
does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense for which the defendant was
tried.” Id. Here, the State alleged that Abdullah,
while in the course of committing theft of property and with intent to obtain or
maintain control of said property, intentionally or knowingly threaten[ed] or
place[d] Danielle Boone in fear of imminent bodily injury or death, and the
defendant did then and there use or exhibit a deadly weapon, to-wit: a gun[.]
Thus, “[t]o prove the essential elements of aggravated robbery in this case, the State had
to show that [Abdullah] committed robbery as defined in Section 29.02 of the Penal Code, and
used or exhibited a deadly weapon.” Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App.
2011) (citing TEX. PENAL CODE ANN. § 29.03(a)(2)). To show that Abdullah committed robbery,
the State had to prove that “in the course of committing theft as defined in Chapter 31 of the
Penal Code and with intent to obtain or maintain control of the property, [Abdullah] intentionally
or knowingly threatened or placed another in fear of imminent bodily injury or death.” Id.
(citing TEX. PENAL CODE ANN. § 29.02(a)(2)). “A person commits theft under Chapter 31 if he
4
unlawfully appropriates property with intent to deprive the owner of the property.” Id. at 156
(citing TEX. PENAL CODE ANN. § 31.03(a)).
“The phrase ‘in the course of committing theft’ is defined by Section 29.01 of the Penal
Code to mean ‘conduct that occurs in an attempt to commit, during the commission, or in
immediate flight after the attempt or commission of theft.’” Id. at 155–56 (citing TEX. PENAL
CODE ANN. § 29.01(1)). Thus, if the theft was a mere afterthought to the completed offense of
assault, the evidence would be insufficient to show that the assault occurred in the course of
committing theft. See Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002) (Keasler, J,
concurring) (citing Moody v. State, 827 S.W.2d 875, 892 (Tex. Crim. App. 1992) (en banc)).
Emphasizing that Abdullah did not demand money from Boone and that Boone did not find the
wallet missing until after the assault, Abdullah challenges the element of intent. He also argues
that the evidence was insufficient to show that a theft occurred because there was no physical
evidence tying him to the missing wallet.
Boone had just returned from the gas station where she used her wallet. She placed her
wallet in the passenger seat of the car prior to returning home to retrieve the dolls. Boone
testified that she discovered that her wallet was missing as soon as the police responded to her
call. “The general rule is still that a theft occurring immediately after an assault will support an
inference that the assault was intended to facilitate the theft.” Id. “The question remaining is
whether, and under what circumstances, evidence of a motive other than theft can negate the
natural inference that arises when a theft immediately follows an assault.” Id. At trial, there was
no evidence of any motive other than theft.
5
“The State has always been able to prove robbery by force or threats committed before
the theft or attempted theft.” Sorrells, 343 S.W.3d at 158. Based on Boone’s testimony that the
wallet was missing immediately after the assault, a rational juror could draw a reasonable
inference that the assault and the theft occurred as integral parts of a continuous, single episode,
and thus the assault was committed during the commission of theft. See id. Here, we find that
the evidence in this case is sufficient to support an inference that (1) a theft occurred, and (2) the
assault was committed in the course of the commission of the theft. Therefore, we overrule
Abdullah’s first point of error.
II. The Extraneous Arkansas Offense Was Admissible to Show Intent
Over objection, the State introduced an extraneous offense through testimony of three
Texarkana, Arkansas, police officers. Officer Shane Kirkland testified that he responded to an
aggravated robbery at the Ambassador Inn motel and spoke with the victim, Travis Burnett.
While canvassing the area for the suspect, Officer Edward Chattaway spotted Abdullah fleeing
on foot and apprehended him. Abdullah was carrying a silver and black pistol. Officer Wayne
Easley testified that he interviewed Abdullah about the aggravated robbery at the Ambassador
Inn. Easley’s testimony and the audio/video recording of the interview, which was played for
the jury, showed that Abdullah (1) admitted to approaching Burnett and asking him for a
cigarette, (2) stated that his gun would have been visible to Burnett, and (3) admitted to taking
money from Burnett. During the interview, Abdullah claimed that he only wanted to “bum” a
cigarette from Burnett. According to Abdullah, Burnett must have gotten scared when he saw
6
the gun and thought to appease Abdullah by giving him money even though Abdullah did not ask
him for money. Abdullah argues that admission of this evidence constituted reversible error.
“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of . . . intent . . . [and] identity . . . .” TEX. R. EVID. 404(b). Abdullah
continuously objected to the introduction of the Arkansas offense. In response, the State argued
that it was offering the Arkansas offense for the purpose of proving intent to commit theft, and to
show identity. After discussing that matter at length outside of the jury’s presence, the trial court
admitted the extraneous offense for the limited purpose of determining both identity and intent.
On appeal, Abdullah argues that the trial court’s ruling violated Rule 404(b) “because the facts of
the charged offense and the extraneous offense were not sufficiently similar.”
“We review a trial court’s ruling under the Rules of Evidence for an abuse of discretion.”
Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009). “We consider the ruling in light
of what was before the trial court at the time the ruling was made and uphold the trial court’s
judgment if it lies within the zone of reasonable disagreement.” Id. “If the trial judge was
correct under any theory of law applicable to the case, we will uphold the judge’s decision.”
Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010). “We do this even if the trial
judge failed to give any reason or used the wrong reason for the ruling.” Id.; see State v. Ross,
32 S.W.3d 853, 856 (Tex. Crim. App. 2000).
Here, the State offered the Arkansas offense to show intent to commit theft. “Intent can
be characterized as a contested issue for purposes of justifying the admission of extraneous
7
offense evidence to help prove intent if the required intent for the primary offense cannot be
inferred from the act itself or if the accused presents evidence to rebut the inference that the
required intent existed.” Johnson v. State, 932 S.W.2d 296, 302 (Tex. App.—Austin 1996, pet.
ref’d) (citing Caro v. State, 771 S.W.2d 610, 617 (Tex. App.—Dallas 1989, no pet.); McGee v.
State, 725 S.W.2d 362, 364 (Tex. App.—Houston [14th Dist.] 1987, no pet.)). At trial, Abdullah
questioned Boone and responding officer, Will Scott, on whether Abdullah had made any
demand for money, and emphasized that the theft occurred, if at all, after the assault. On appeal,
Abdullah challenges the legal sufficiency of the evidence supporting the intent element. Clearly,
intent to commit theft was (and is) a contested issue. 1
The case of Cantrell v. State sheds light on whether the extraneous offense was
admissible to show intent. Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987). We
examine the facts of the charged offense in that case, the facts of the extraneous offense, and the
court’s reasoning and ruling. Cantrell’s girlfriend, Phyllis Galyean, had a sexual relationship
with Phillip Green, the victim of the offense. Id. at 86. Galyean told Cantrell that Green had
raped her. Id. At 9:00 a.m., when Green was getting ready for work, Cantrell and Galyean went
to Green’s Dallas apartment, rang the doorbell, and forcefully entered the apartment after Green
cracked open the door. Id. at 86. Cantrell drew a .38 caliber snub-nosed revolver and pushed
Green into a chair. Id. Cantrell tucked the gun back into his belt after Green denied Galyean’s
accusations, but drew a knife and demanded money from Green. Id. After Green claimed that
he had no cash, Cantrell forced Green to write a $5,000.00 check made payable to Galyean, took
1
During deliberation, the jury asked, “[I]s the intent to commit robbery applicable to this charge . . . ?”
8
the check, and left. Id. During Galyean’s cross-examination, she testified that the purpose in
going to Green’s apartment “‘was to get to the truth of the matter and talk to Phil Green about
it’” and that neither she nor Cantrell had any intention to rob Green. Id. at 88.
In rebuttal, the State offered, over objection, testimony from Sherry Tinerella about an
incident that occurred eight months after Green was robbed. Tinerella, who lived in Houston,
testified that she awoke at about 8:30 a.m. to find Cantrell, whom she did not know, pointing a
pistol at her. Id. Cantrell took Tinerella’s jewelry, gifts, cash, and other items and then stole her
automobile. Id.
On appeal, Cantrell argued that the trial court erred in admitting the extraneous offense
involving Tinerella. The Texas Court of Criminal Appeals disagreed. Because the State’s
indictment required it to prove that Cantrell used or exhibited a deadly weapon and threated
Green with the intent to obtain and maintain control of Green’s property and deprive him of the
property, the court found that intent to commit theft was a material issue in the case. Id. at 89. It
reasoned, “[e]ven if it can be argued in the instant case that [Cantrell]’s intent can be inferred
from the act of obtaining a check . . . the issue of intent was later contested by Galyean’s
testimony . . . ,” and thus, the extraneous offense was admissible to show intent. Id.
The court recognized the requirements of similarity or signature in cases involving the
issue of identity or absence of mistake or accident. 2 However, it wrote, “the degree of similarity
2
“When the extraneous offense is introduced to prove identity by comparing common characteristics, it must be so
similar to the charged offense that the offenses illustrate the defendant’s ‘distinctive and idiosyncratic manner of
committing criminal acts.’” Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006) (quoting Martin v. State,
173 S.W.3d 463, 468 (Tex. Crim. App. 2005) (quoting Owens v. State, 827 S.W.2d 911, 915 (Tex. Crim. App.
1992)). “Such extraneous offense evidence is admissible to prove identity when the common characteristics of each
9
required is not so great where intent is the material issue as when identity is the material issue,
and extraneous offenses are offered to prove modus operandi.” Id. at 90. Because the
extraneous offense and the charged offense were both (1) aggravated robberies, (2) committed at
private residences, (3) committed at approximately the same time of the morning, and (4) “were
committed at gunpoint shortly after the victim had awaken[ed] or was getting ready to go to
work,” the court found “sufficient common similar characteristics between the offenses” in spite
of remoteness in time and other differences between the two offenses. Id.
Here, the trial court made an assessment of the similarities between the charged offense
and the extraneous offenses based on arguments of counsel and testimony given by Kirkland
outside of the jury’s presence. The trial court reasoned that
the parallels I see between the two are that he acts alone, he approaches people
entering buildings, . . . [s]o that was a little significant. Again, the fact it was a
black and silver pistol, may or may not be the same one. They’re similar in time,
two days apart. Both occur at night, and he was arrested near the scene on the
Arkansas side. And he was ID’d by the victim on the Texas side.
The similarities discussed by the trial court in this case are of greater quality than those
relied on in Cantrell. Keeping in mind the rule that the degree of similarity between the charged
offense and the extraneous offense need not be so great in cases where the State seeks to admit
the extraneous offense to show intent as opposed to identity, we cannot say that the trial court
abused its discretion in admitting the Arkansas offense for the purpose of showing intent to
commit theft. Cantrell, 731 S.W.2d at 90; Brown v. State, 96 S.W.3d 508, 512–13 (Tex. App.—
Austin 2002, no pet.) (citing Wiggins v. State, 778 S.W.2d 877, 886 (Tex. App.—Dallas 1989,
offense are so unusual as to act as the defendant’s ‘signature.’” Id. “The signature must be apparent from a
comparison of the circumstances in both cases.” Id.
10
pet. ref’d)); Johnson v. State, 932 S.W.2d 296, 302 (Tex. App.—Austin 1996, pet. ref’d); Birl v.
State, 763 S.W.2d 860, 861 (Tex. App.—Texarkana 1988, no pet.). Therefore, we overrule
Abdullah’s second point of error. 3
III. State’s Reference to “Unavailable” Victim During Closing Argument Was Harmless
The State issued a subpoena for Burnett. Yet, despite expending “great effort,” the State
was unable to locate him. It explained that Burnett was a truck driver who was staying at the
Ambassador Inn for the night while passing through Texarkana. During closing argument,
Abdullah argued,
[Y]ou heard some evidence about something that happened in Arkansas, but you
know what you didn’t hear? You didn’t hear anybody take the stand and say, he
stole my money, he held me up. Not one person took the stand and said he
robbed me in Arkansas. Some police said they arrested him for something in
Arkansas, but you didn’t hear from a single person in Arkansas that said he stole
their money.
Either party may comment upon the failure of his adversary to call available competent
witnesses. Patterson v. State, 387 S.W.2d 390, 391 (Tex. Crim. App. 1965); see Fant-
Caughman v. State, 61 S.W.3d 25, 30 (Tex. App.—Amarillo 2001, pet. ref’d). We interpret
Abdullah’s jury argument as a comment on the State’s failure to call Burnett.
The State’s response to Abdullah’s argument prompted the following discussion:
[BY THE STATE]: . . . . He directly brought up to you that we didn’t
produce a victim over from Arkansas. I am now allowed to answer that question
for you because he has misled you. That victim --
[BY DEFENSE COUNSEL]: Objection, Your Honor. May we approach?
3
Because we are to uphold a trial court’s admission of evidence if it is correct under any theory of law applicable to
the case, we need not address Abdullah’s argument that the trial court erred in admitting the Arkansas offense for
the purpose of showing identity. See Bowley, 310 S.W.3d at 434.
11
....
(AT THE BENCH, ON THE RECORD)
[BY DEFENSE COUNSEL]: They can’t get into any facts that are not in
evidence.
....
[BY THE STATE]: This is rebuttal. He brought it up.
THE COURT: I wouldn’t touch on it very hard . . . .
[BY THE STATE]: Okay. But I can say that he’s unavailable.
THE COURT: Bring it to a pretty quick conclusion. Overruled . . . .
(OPEN COURT, DEFENDANT AND JURY PRESENT)
[BY THE STATE]: Okay. The witness is unavailable to testify. He’s not
available. I would love for him to be in here. He’s not available to testify, and I
will leave it at that.[4]
Permissible jury argument falls into one of four categories: (1) summation of the
evidence, (2) reasonable deduction from the evidence, (3) an answer to the argument of opposing
counsel, or (4) a plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim.
App. 2008); Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000). On appeal,
Abdullah argues that the trial court erred in allowing the State to inform the jury that Burnett was
unavailable because (1) the State’s argument did not fall into the permissible categories of jury
argument, (2) there was no evidence that Burnett was unavailable under Rule 804 of the Texas
4
For the purposes of this analysis, we assume that the trial court’s ruling adequately preserved Abdullah’s specific
complaint related to the use of the term unavailable.
12
Rules of Evidence, (3) no ruling on unavailability had been secured by the State, and (4) the
argument that Burnett was unavailable constituted an argument outside of the record.
We review a trial court’s ruling on an objection to improper jury argument for an abuse
of discretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012, pet.
ref’d); see Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010); Garcia v. State, 126
S.W.3d 921, 924 (Tex. Crim. App. 2004); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App.
2001).
We agree that the record fails to show that Burnett was unavailable as the term is defined
by Rule 804 of the Texas Rules of Evidence. 5 However, Abdullah’s reliance on that Rule is
5
Rule 804, titled “Hearsay Exceptions; Declarant Unavailable,” reads,
“Unavailability as a witness” includes situations in which the declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying
concerning the subject matter of the declarant’s statement;
(2) persists in refusing to testify concerning the subject matter of the declarant’s
statement despite an order of the court to do so;
(3) testifies to a lack of memory of the subject matter of the declarant’s statement;
(4) is unable to be present or to testify at the hearing because of death or then
existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of the declarant’s statement has
been unable to procure the declarant’s attendance or testimony by process or other reasonable
means.
A declarant is not unavailable as a witness if the declarant’s exemption, refusal, claim of
lack of memory, inability, or absence is due to the procurement or wrong-doing of the proponent
of the declarant’s statement for the purpose of preventing the witness from attending or testifying.
TEX. R. EVID. 804.
13
misplaced in the context of this case. Rule 804 simply sets forth an exception to the hearsay rule
when the declarant is unavailable as a witness.
Permissible jury argument includes an answer to the argument of opposing counsel.
Brown, 270 S.W.3d at 570. Abdullah’s jury argument was a comment on the State’s failure to
call Burnett. “The failure to produce available evidence justifies an inference that it would be
unfavorable to the party who failed to procure it.” Albiar v. State, 739 S.W.2d 360, 363 (Tex.
Crim. App. 1987). Thus, the State was entitled to respond to Abdullah’s argument. 6 However,
the question remains whether the State was entitled to respond by informing the jury that Burnett
was unavailable.
Even if we were to conclude that the trial court erred in allowing the State to inform the
jury that Burnett was unavailable, we find that the error was harmless. Nonconstitutional error is
analyzed under Rule 44.2(b) of the Texas Rules of Appellate Procedure, which requires that error
be disregarded unless it affects an appellant’s substantial rights. TEX. R. APP. P. 44.2(b); Mosley
v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (en banc); George v. State, 117 S.W.3d
285, 289 (Tex. App.—Texarkana 2003, pet. ref’d). A substantial right is not affected if the
reviewing court has a “‘fair assurance that the error did not influence the jury, or had but a slight
effect.’” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (quoting Reese v. State,
33 S.W.3d 238, 243 (Tex. Crim. App. 2000) (quoting Johnson v. State, 967 S.W.2d 410, 417
(Tex. Crim. App. 1998))).
6
A prosecutor may comment in jury argument on the defendant’s failure to call a material witness when it is shown
that such witness was available to testify, and the prosecutor may also argue that the reason for such failure is that
any testimony by the absent witness would have been unfavorable to the defense. Albiar, 739 S.W.2d 360. The
mere fact that the witness was under subpoena from the State does not make him unavailable to the defense. Id. at
363; see TEX. CODE CRIM. PROC. ANN. art. 24.03 (West 2009).
14
When analyzing the likelihood that the improper jury argument had a substantial
influence on the outcome of the case, we look to the record as a whole and consider (1) the
severity of the misconduct or prejudicial effect, (2) any curative measures taken, and (3) the
certainty of conviction or punishment assessed absent the misconduct. Mosley, 983 S.W.2d at
259–60; Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet.
ref’d).
The members of the jury were likely not trained on the legal definition of unavailability
as it is set forth in Rule 804. Accordingly, the jury probably interpreted the State’s argument as
simply informing them that Burnett was not accessible or obtainable 7—a deduction that it should
have reasonably made since Burnett’s testimony would have been favorable to one party, but he
was not produced by either party. Yet, even if the State’s comment was characterized as mildly
inappropriate and no curative measure was taken, the evidence of Abdullah’s intent to steal
Boone’s wallet—the main contested fact issue—was strong. Thus, we conclude that the State’s
reference to Burnett’s unavailability had little or no effect. We overrule Abdullah’s last point of
error.
7
The common definition of “available” is “present or ready for immediate use” or “ACCESSIBLE,
OBTAINABLE.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 84 (11th ed. 2006).
15
IV. Conclusion
We affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: October 14, 2014
Date Decided: November 18, 2014
Do Not Publish
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