PHILLIP RAY TARVER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued June 25, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01091-CR
No. 05-06-01667-CR
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PHILLIP RAY TARVER, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 291st District Court
Dallas County, Texas
Trial Court Cause Nos. F04-18632-LU; F04-18633-MU
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OPINION
 
Before Justices Morris, Bridges, and O'Neill
Opinion By Justice Bridges
 
 
        Phillip Ray Tarver appeals his aggravated robbery conviction in cause number 05-06-01091-CR and evading arrest conviction in cause number 05-06-01667-CR. A jury convicted appellant of both offenses and sentenced him to fifty years' confinement and a $10,000 fine in cause number 05-06-01091-CR and two years' confinement and a $10,000 fine in cause number 05-06-01667-CR. In four issues, appellant argues the trial court erred in admitting a hearsay statement, the evidence is legally and factually insufficient to support his aggravated robbery conviction, and the judgment in cause number 05-06-01667-CR should be reformed. As reformed, we affirm the trial court's judgments.         On July 23, 2004, Amanda Harris was working at a pet store in Cedar Hill when appellant came in the store near closing time and asked her to ring up his purchase of dog food. After Harris rang up a purchase, appellant started checking his pockets and said he had forgotten his money and asked if he could go to his car. Harris told appellant the manager had just made the closing announcement and had already locked the doors, so Harris did not think appellant could go to his car. Nevertheless, appellant was allowed to leave the store and returned a few minutes later. When appellant first came in the store, he was very friendly but, when he came back in, he was "very serious, very quiet." Appellant came back up to the register, lifted up his shirt, and showed Harris a gun. Appellant asked Harris, "Do you see this? Do you see what I have?" Harris responded affirmatively. Appellant pulled his shirt back down and told Harris to take the money out of the register and put it in a bag.
        Harris initially told appellant she could not open the register, and appellant said she had “better figure out a way to open it.” Harris opened the register by entering that appellant paid with a ten dollar bill and began putting tens and twenties into a bag. Appellant told Harris to lift up the tray and "get the bigger bills." Harris estimated she put $700 in the bag. Harris felt that, if she did not do what appellant told her, appellant might kill her. After Harris gave appellant all the money in the register, he walked out of the store. As appellant left, he told the store manager, Aaron Hunt, "Have a good night." When appellant was gone, Harris told Hunt, “[Appellant] has a gun and he robbed us.” Hunt ran out of the store and looked scared when he came back inside “just a few seconds” later. Hunt said, “He has a gun” and called police. When police arrived, Harris gave them a description of appellant.
        Cedar Hill police officer Collin Chenault was driving an unmarked police car when a car pulled out in front of him at a high rate of speed, almost hitting him. A few seconds later, Chenault received a call on his radio that a robbery had just occurred at the pet store. Chenault immediately thought something was wrong with the car that pulled out in front of him and radioed the dispatchers with information about the car. Dispatch confirmed that the car was the same make and model and had the same license plate as the one involved in the pet store robbery. Chenault continued following the car and advised other responding units that he was behind the vehicle involved in the robbery. Police policy prevented Chenault from making a stop in an unmarked car, so he waited for other officers to catch up with him. Also, Chenault was aware that a weapon had been used in the robbery, and he waited for backup. Three police cars caught up and activated their lights. The car led police on a chase, but the driver, appellant, was eventually apprehended. Later that night, police brought appellant back to the pet store where Harris identified appellant as the man who had robbed the store. Appellant was subsequently charged with aggravated robbery and evading arrest. A jury convicted appellant of both offenses, and these appeals followed.
        In his first point of error, appellant argues the trial court erred in permitting Harris to testify that Hunt said “He has a gun” because this statement was “testimonial” and its admission violated the Sixth Amendment. The admission of a hearsay statement made by a non-testifying declarant violates the Sixth Amendment if the statement was testimonial and the defendant lacked a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, (2004). Thus, a “testimonial” statement is inadmissible absent a showing that the declarant is presently unavailable and the defendant had a prior opportunity for cross-examination, even if the statement falls under a firmly rooted hearsay exception or bears particularized guarantees of trustworthiness. Id. at 59-60. If “testimonial” evidence is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. Id. The legal ruling of whether a statement is testimonial under Crawford is determined by the standard of an objectively reasonable declarant standing in the shoes of the actual declarant. Id. at 52. The Court and Crawford identified three kinds of statements that might be regarded as testimonial: (1) ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; (3) statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. at 51. Casual remarks to acquaintances are generally non-testimonial. Id.
        Appellant concedes that Hunt's statement falls within the excited utterance exception to the hearsay rule but claims Hunt's statement was “testimonial” and therefore inadmissible because Hunt did not testify, and appellant was not able to cross-examine him. We disagree. Viewing Hunt's statement that "he has a gun" from the perspective of an objectively reasonable declarant standing in Hunt' shoes, we cannot conclude the statement was “testimonial” under Crawford. Nothing in this statement or in the circumstances under which it was made would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. See id. at 51. On the contrary, the statement, viewed objectively, appears to be an excited utterance made to a coworker to explain Hunt's return to the pet store "just a few seconds" after running outside after appellant. The statement, taken in context, also explained Hunt's look of fear and served as a warning to his coworker that a man with a gun was right outside the store. Under these circumstances, we conclude the trial court did not err in admitting Hunt's statement as an excited utterance. We overrule appellant's first issue.
        In his second and third issues, appellant argues the evidence is legally and factually insufficient to support his aggravated robbery conviction. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury's determinations). Unless the record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        A person commits aggravated robbery if, in the course of committing 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 and he uses or exhibits a deadly weapon. Tex. Penal Code Ann. §§ 29.02(a)(2);29.03(a)(2) (Vernon 2003).         Harris testified appellant left the store after his merchandise was rung up, came back up to the register, lifted up his shirt, and showed Harris a gun. Appellant asked Harris, "Do you see this? Do you see what I have?" Harris responded affirmatively. Appellant pulled his shirt back down and told Harris to take the money out of the register and put it in a bag. Harris felt that, if she did not do what appellant told her, appellant might kill her. Appellant argues the evidence is legally and factually insufficient because the gun could have been fake and was never recovered. Harris testified she did not know anything about guns, and she only saw the handle of the gun. However she testified she did not believe the gun was fake. Harris testified she had seen air guns designed to look like the real thing, and she did not believe it was one of those. As to the failure of police to recover the gun, Cedar Hill police officer David Banta testified it was dark during the car chase, and he would not have been able to see appellant thrown something out of his car window. When appellate was arrested, the passenger side window of his car was rolled down and, without being asked, appellant said that he "didn't throw anything." We conclude this evidence was legally and factually sufficient to show appellant exhibited a deadly weapon during the course of the robbery and thereby placed Harris in fear of imminent bodily injury or death. See Jackson, 443 U.S. at 319; Watson, 204 S.W.3d at 415. We overrule appellant's second and third issues.
        In his fourth issue, appellant argues the judgment in cause number 05-06-01667-CR should be reformed to reflect appellant pled guilty to evading arrest and to delete the finding that appellant had previously been convicted of a felony. In response, the State concedes that the judgment should be reformed to reflect appellant guilty plea but argues the judgment correctly contains the trial court's finding that appellant was previously convicted of a felony. The record shows that appellant pled guilty to evading arrest, but the record in the evading arrest case is silent as to prior felony convictions, and the issue was not submitted to the jury. This Court has the power to modify incorrect judgments when it has the necessary information to do so. Tex. R. App. P. 43.2(b). We sustain appellant's fourth issue to the extent he argues the judgment should be reformed to reflect appellant pled guilty and to delete the court's finding that appellant had previously been convicted of a felony.
        In a single cross issue, the State argues that, although the jury found the enhancement allegation true in cause number 05-06-01091-CR, the judgment erroneously omits the jury's finding. The State asks this Court to reform the judgment in cause number 05-06-01091-CR to reflect that the jury found the enhancement allegation to be true. Because it is clear from the verdict sheet that the jury found the enhancement allegation to be true, we have the power to reform this clerical mistake in the written judgment. Tex. R. App. P. 43.2(b); Stokes v. State, 221 S.W.3d 101, 103 n.1 (Tex. App.-Houston [14th Dist.] 192006, no pet.). We sustain the State's cross-point.
        We reform the judgment in cause number 05-06-01667-CR to reflect appellant pled guilty and to delete the court's finding that appellant had previously been convicted of a felony. We reform the judgment in cause number 05-06-01091-CR to reflect that the jury found the enhancement allegation to be true. In all other respects, we affirm the trial court's judgments.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061091F.U05