Jose Ignacio Razo v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00161-CR
JOSE IGNACIO RAZO APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Jose Ignacio Razo appeals his conviction and sentence for
aggravated robbery. In three issues, Razo contends that his double jeopardy
rights were violated; that the evidence is legally insufficient to support his
1
See Tex. R. App. P. 47.4.
conviction; and that the trial court erred during the punishment phase by allowing
the State to introduce a videotape from a convenience store. We will affirm.
II. BACKGROUND
On the night of the alleged robbery, eighty-five year-old Frank Burk made
six 9-1-1 calls from his home between 1:50 a.m. and 2:20 a.m. When officers
arrived, Burk’s eyes were swollen shut, and he was moving slowly, had trouble
hearing, and appeared to have been beaten. The door from Burk’s garage to his
house had been busted in, his house was ransacked, and there was blood
throughout the house.
A few hours later, police stopped Razo while he was driving a car with two
other occupants. After police found a revolver and some of Burk’s possessions
in the vehicle, all three occupants were placed in custody. Razo was charged
with aggravated robbery, and this case eventually went to trial. Razo’s first trial
ended in a mistrial.
When Razo’s second trial began, Razo asserted that jeopardy had
attached at the previous trial and asked the trial court to dismiss the case, but the
court denied Razo’s motion on double jeopardy. After hearing the evidence, the
jury found Razo guilty.
During the punishment phase, the State introduced evidence to support its
theory that Razo was involved in three additional robberies the same night that
Burk had been attacked and robbed. One such piece of evidence was a security
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videotape from a convenience store near Burk’s house—Joe’s Future Food Mart.
The State called store employee Mahawattage (“Harry”) Don Dhanushka to
authenticate the videotape. Using the videotape and Harry’s testimony, the State
purported to show that Razo’s cousin was an employee at Joe’s Future Food
Mart and was working while the store was robbed. Over Razo’s objection, the
videotape was admitted in evidence. After hearing all of the evidence, the jury
sentenced Razo to thirty-five years in prison.
III. DISCUSSION
A. Double Jeopardy
In his first issue, Razo contends that his double jeopardy rights were
violated by the State’s subsequent prosecution after having intentionally
provoked Razo into moving for a mistrial. Specifically, Razo argues that the trial
court abused its discretion by finding that the State did not intend to provoke
Razo into moving for a mistrial by eliciting responses from witnesses that alluded
to extraneous offenses. We disagree.
Pursuant to pretrial motions in limine in Razo’s trials, the State was
prohibited from referencing, commenting on, or arguing the existence of any
extraneous offenses during the guilt-innocence phases of both trials. At his first
trial, Razo made multiple requests for a mistrial based on four different instances
in which the State’s witnesses allegedly referred to extraneous offenses. The
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first instance occurred on redirect examination during an exchange between the
prosecutor and Burk about the alleged attack:
[Prosecutor]: When they were hitting you, did you get knocked out?
[Burk]: Yeah. In other words, just it all happened so sudden. I
mean, it [was] just one of those things that I wasn’t looking forward
to.
[Prosecutor]: Oh, I bet you weren’t.
[Burk]: It[‘s] just that now -- if like what -- they just came from
another house.
[Prosecutor]: Well, let’s just -- let’s -- just talk about you right now.
Outside the presence of the jury, defense counsel then objected to Burk’s
comment that the intruders had just left from another house. Razo also argued
that the prosecutor’s instruction to “just talk about [Burk] right now” further
alluded to the presence of other offenses. After continued disagreement, the
court sustained Razo’s objection, instructed the jury to disregard Burk’s
response, and denied the motion for mistrial.
Razo’s second objection to an alleged reference to extraneous offenses
followed an exchange between the prosecutor and crime scene officer
Christopher Bain regarding Bain’s response to dispatch’s report of the alleged
robbery:
[Prosecutor]: So when you got the call, what did you do?
[Bain]: Well, I started driving towards the first location until they
diverted me. So then I drove to the second location. I believe it was
at Hart --
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Again outside the presence of the jury, Razo objected to Bain’s response
on the basis that he alluded to an extraneous offense. But the prosecutor
explained that the two locations Bain had referred to were connected to the same
robbery, and Razo withdrew his objection.
Razo’s third objection came during direct examination of Detective Kyle
Sullivan, who had been assigned to investigate the robbery the night of the
offense:
[Prosecutor]: Why were you interested in their clothing?
[Sullivan]: Well, I knew that on one particular case --
Razo immediately objected and requested a mistrial, arguing that
Sullivan’s statement was nonresponsive and that it referred to extraneous
offenses. Again the prosecutor disagreed and argued to the contrary, adding
that he had already instructed Sullivan to only talk about the case at hand.
Next the court allowed the prosecutor to go through his intended line of
questioning with Sullivan outside the presence of the jury so that the court and
Razo would know what the prosecutor was intending to illicit from the witness.
After this line of questioning, the prosecutor and the court made clear that all the
witnesses had previously been instructed not to talk about any other extraneous
offenses and that the witnesses should only talk about the case at hand. Back in
the presence of the jury, the court sustained Razo’s objection and denied his
motion for mistrial.
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The fourth and final incident followed an exchange between the prosecutor
and Officer Kevin Capps, who assisted Detective Sullivan with searching Razo’s
vehicle after it had been impounded:
[Prosecutor]: While you were there, was there anyone else present
with Detective Sullivan?
[Capps]: Detective Sullivan was accompanied by Mr. Burk who at
that time was identified as one of the victims.
Razo then interrupted the prosecutor’s next question to raise yet another
nonresponsiveness objection. Outside the presence of the jury, defense counsel
requested a mistrial, arguing that Capps’s reference to “one of the victims”
alluded to an extraneous offense. Noting that the prosecution had been warned
several times and that there was a motion in limine that had been violated, the
court granted the defense’s motion for mistrial.
Before the proceedings ended, the prosecutor asked for and received a
ruling from the court that he had not acted intentionally and that he had complied
with the court’s orders regarding instructions to his witnesses. Although the
prosecutor continued to try to persuade the court to deny Razo’s motion for
mistrial, the court confirmed that the mistrial was granted and ended the
proceedings.
1. Standard of Review
In reviewing a trial court’s ruling that the State did not intentionally provoke
a defendant to move for a mistrial, we view the evidence in the light most
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favorable to the trial court’s ruling and will uphold the decision absent an abuse
of discretion. Ex parte Masonheimer, 220 S.W.3d 494, 507–08 (Tex. Crim. App.
2007); Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).
2. Applicable Law
The double jeopardy provisions of the federal and Texas constitutions
protect a citizen from repeated attempts at prosecution for the same criminal
offense. U.S. Const. amend. V; Tex. Const. art. I, § 14; Oregon v. Kennedy, 456
U.S. 667, 671, 102 S. Ct. 2083, 2087 (1982); Wheeler, 203 S.W.3d at 322. But if
a defendant requests a mistrial, double jeopardy normally does not bar
reprosecution. Kennedy, 456 U.S. at 672–73, 102 S. Ct. at 2088. When a trial
court grants a defendant’s motion for mistrial, retrial is barred only if the
prosecutor intentionally caused the mistrial. Id. at 675–76, 102 S. Ct. at 2089;
Ex parte Lewis, 219 S.W.3d 335, 370–71 (Tex. Crim. App. 2007) (adopting
Kennedy standard for determining when to grant double jeopardy relief under
Texas constitution after a defense-requested mistrial and overruling Bauder v.
State, 921 S.W.2d 696, 698–99 (Tex. Crim. App. 1996), which barred retrials
when the prosecutor was aware but consciously disregarded the risk that his
conduct would require a mistrial at the defendant’s request).
The exception to the general rule that double jeopardy protections do not
bar a retrial when the defense requested a mistrial is “narrow.” Kennedy, 456
U.S. at 673, 102 S. Ct. at 2088; see also Masonheimer, 220 S.W.3d at 506.
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Thus, prosecutorial conduct that might be viewed as harassment or
overreaching, even if sufficient to justify a mistrial on defendant’s motion, does
not bar retrial absent intent on the part of the prosecutor to subvert the
protections afforded by the Double Jeopardy Clause. Kennedy, 456 U.S. at 675–
76.
Trial courts are in the best position to determine whether a prosecutor’s
conduct evinces intent to cause a mistrial, and Texas provides defendants with
the opportunity to litigate the question in the trial forum. Lewis, 219 S.W.3d at
362. Accordingly, the Texas Court of Criminal Appeals has stressed the
importance of deferring to the trial court’s assessment of facts, including the
prosecutor’s state of mind. See Wheeler, 203 S.W.3d at 322–24; Ex parte
Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled on other
grounds by Lewis, 219 S.W.3d 335.
3. Analysis
Razo points to four instances that collectively amounted to the prosecutor’s
alleged intentional provocation of Razo’s request for a mistrial. Viewing the
evidence in the light most favorable to the verdict, Razo conceded that the first
instance did not involve intentional conduct and that the second instance did not
involve a reference to an extraneous offense. After the third instance, the
prosecutor led the witness through a series of questions outside the jury’s
presence to make sure that the witness did not say something that he should not.
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As for the fourth incident, the prosecutor merely asked whether anyone else was
present at the scene, and therefore did not elicit the witness’s response as to
why one of the persons was present.
Further, the prosecutor had instructed all of his witnesses to only discuss
the case at hand; and even after the trial court granted Razo’s motion for mistrial,
the prosecutor continued to attempt to persuade the court that a mistrial was
improper. Most importantly, the trial court ruled, without objection, that the
prosecutor did not intentionally provoke Razo into moving for a mistrial.
Thus, the trial court did not abuse its discretion in ruling that the prosecutor
did not intentionally provoke Razo to move for a mistrial because the prosecutor
took steps to avoid any discussion of extraneous offenses, the witnesses’
references to extraneous offenses were nonresponsive as to the prosecutor’s
questions, and the prosecutor repeatedly resisted the granting of the mistrial.
See Ex parte Washington, 168 S.W.3d 227, 238–39 (Tex. App.—Fort Worth
2005, no pet.) (concluding that prosecution did not intentionally provoke mistrial
so as to bar retrial when defense-requested mistrial was prompted by
nonresponsive answers of prosecution’s witnesses and prosecution had
instructed witnesses not to gratuitously mention impermissible evidence). Giving
the appropriate deference to the trial court’s ruling, we hold that the trial court’s
granting of a mistrial at the defendant’s request did not bar a retrial and that
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therefore Razo’s double jeopardy rights were not violated. Razo’s first issue is
overruled.
B. Sufficiency of the Evidence
In his second issue, Razo contends that there is insufficient evidence to
support his conviction for aggravated robbery. A person commits the offense of
robbery if, in the course of committing a theft and with intent to obtain or maintain
control of the property, he intentionally or knowingly threatens or places another
in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(2)
(West 2011). The offense becomes aggravated if the person committing robbery
uses or exhibits a deadly weapon, or causes bodily injury to another person or
threatens or places another person in fear of imminent bodily injury or death if the
other person is 65 years of age or older. Id. § 29.03(a)(2), (3)(A) (West 2011).
Razo does not dispute that an aggravated robbery occurred; rather, he contends
that the evidence is insufficient to identify him as one of the perpetrators. We
disagree.
1. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
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307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Isassi, 330 S.W.3d at 638. The trier of fact is the sole judge of the
weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04
(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we “determine whether
the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
the verdict.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We
must presume that the factfinder resolved any conflicting interests in favor of the
verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;
Isassi, 330 S.W.3d at 638.
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor. Isassi, 330 S.W.3d at 638; Hooper, 214 S.W.3d at 13. Each
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fact need not point directly and independently to the guilt of the defendant as
long as the cumulative force of all the incriminating circumstances is sufficient to
support the conviction. Hooper, 214 S.W.3d at 13. Further, the prosecution
need not exclude every other reasonable hypothesis except the guilt of the
accused. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999); see also
Merritt v. State, No. PD-0916-11, 2012 WL 1314095, at *10 (Tex. Crim. App.
Apr. 18, 2012) (holding that appellate court improperly acted as thirteenth juror in
sufficiency of evidence review when it speculated and focused on existence of a
reasonable hypothesis inconsistent with guilt of accused).
2. Analysis
Viewing the evidence in the light most favorable to the verdict, the record
demonstrates that at least two intruders came into Burk’s home and attacked
him. When police officers arrived at Burk’s house, they discovered that his truck
was not there; the garage door was busted in and broken; the house was
ransacked; and there was blood in the hallway, bathroom, and bedroom. Police
officers stopped Razo a few hours after Burk was assaulted and robbed and
discovered that Razo had blood on his jacket that was later determined to be
Burk’s. Burk’s saxophone, miscellaneous tools, and personal mail were in the
trunk of the car Razo was driving. The officers also found bloody gloves on the
seats and a pistol, the handle of a trench knife, and Burk’s Social Security card in
the pocket of one of the other occupants in the car. Finally, a shoe print taken
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from the broken door was later found to have enough individualizing
characteristics for a trace evidence analyst to conclude that the print probably
came from the shoes Razo was wearing the night he was arrested. Thus, the
combined and cumulative force of all the incriminating circumstances permits the
reasonable inference that Razo was one of the perpetrators.
To support Razo’s contention that there is insufficient evidence to identify
Razo as one of the perpetrators, Razo points to the facts that Burk was unable to
identify Razo in a photo line-up and that Burk initially described the suspects as
black or dark-skinned.2 But Burk, at eighty-five years old, was attacked in the
very early morning while he was asleep and was beaten to the point that his eyes
were swollen shut. It is reasonable to assume that Burk’s recollection of the
appearance of his assailants could be inaccurate, and such a discrepancy does
not render the jury’s finding improper in light of the additional evidence linking
Razo to the crime.
Razo also argues that there is a possibility that the two other occupants in
the car committed the robbery and later met up with Razo because the victim
said there were only two assailants and because one of the occupants in the car
was the one found with the revolver, the handle of the trench knife, and Burk’s
Social Security card. Razo further hypothesizes that Burk’s blood could have
gotten on Razo’s jacket if either of the other two occupants of the car “disdainfully
2
Razo asserts that there is no evidence he is either black or dark-skinned.
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tossed” the gloves at Razo after they committed the robbery. But it is the jury’s
prerogative to weigh the evidence and choose between conflicting theories of the
case, and they were free to decide whether to believe Razo’s theory.
Thus, a rational trier of fact could have found beyond a reasonable doubt
that Razo committed the aggravated robbery based on the evidence that the
shoe print on Burk’s door was probably Razo’s; Razo was driving a car
containing Burk’s possessions; and Burk’s blood was on Razo’s jacket the night
of the robbery. We hold that the evidence was sufficient to support Razo’s
conviction. See Terry v. State, No. 05-08-00165-CR, 2009 WL 1240132, at *2–3
(Tex. App.—Dallas May 7, 2009, pet. dism’d) (not designated for publication)
(holding evidence sufficient to support aggravated robbery conviction due to
small blood stain on defendant’s shoe matching victim’s blood and bloody
footprint at scene with similar tread to that on defendant’s shoe). Razo’s second
issue is overruled.
C. Admissibility of Videotape
In his third issue, Razo contends that the trial court erred by admitting the
security videotape from Joe’s Future Food Mart due to improper authentication.
Specifically, Razo argues that Harry was not the proper witness because he was
not present when the alleged robbery occurred and had no specialized
knowledge regarding the maintenance of the camera.
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We review a trial court’s ruling on authentication issues under an abuse of
discretion standard. Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App.
1998); Reavis v. State, 84 S.W.3d 716, 719 (Tex. App.—Fort Worth 2002, no
pet.). This standard requires an appellate court to uphold a trial court’s
admissibility decision if it is within the zone of reasonable disagreement. Powell
v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).
Texas Rules of Evidence 901 establishes the authentication requirement
for the admissibility of evidence. See Tex. R. Evid. 901; Angleton, 971 S.W.2d at
67. The authentication requirement is satisfied by “evidence sufficient to support
a finding that the matter in question is what its proponent claims.” Tex. R. Evid.
901(a). Additionally, Rule 901(b) provides a nonexclusive list of methods to
authenticate evidence. Tex. R. Evid. 901(b). One such method is the testimony
of a witness with knowledge that a matter is what it is claimed to be. Tex. R.
Evid. 901(b)(1).
In Reavis v. State, we held that a trial court did not abuse its discretion by
admitting a security videotape in evidence even though the authenticating
witness—a store clerk—had not personally witnessed the events depicted on the
videotape. Reavis, 84 S.W.3d at 719–20. The clerk testified that he loaded the
videotape and pressed “record” the day of the offense, he removed the videotape
shortly after the offense and reviewed it with police officers, and he reviewed it
again before trial to ensure that it had not been tampered with or altered. Id.
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The witness made no reference to any specialized knowledge regarding the
maintenance of the camera. See id. at 718. We held that this was sufficient
evidence to enable a reasonable juror to conclude the videotape was what the
State claimed it to be. Id. at 718–19.
Here, Harry testified that the videotape security system properly and
accurately records the events that happen inside the store, he helped the police
officer locate the part of the tape the officer was looking for on the day of the
offense, he recognized his coworkers and various items inside the store on the
videotape, and he reviewed the videotape before trial. The only distinction with
Reavis is that Harry did not actually start the recording the day of the offense, but
there is no evidence to suggest that the store’s videotape security system
required a manual start to begin recording. Moreover, both Harry and the
certified forensic computer examiner who extracted the videotape from the
store’s security system testified that the system was working properly and that
the time depicted on the videotape was accurate other than being off by one
hour. Thus, Harry had sufficient knowledge of the videotape security system to
testify that the videotape accurately depicted the events that occurred in the store
on the day of the robbery.
Following our reasoning in Reavis, the evidence was sufficient to support a
finding that the videotape was what the State claimed it to be, and therefore the
videotape was properly authenticated. Thus, the trial court did not abuse its
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discretion by admitting the videotape in evidence, and we overrule Razo’s third
issue.
IV. CONCLUSION
Having overruled each of Razo’s issues, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 9, 2012
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