CARL YANCY, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued July 22, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00457-CR
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CARL YANCY, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-40209-R
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OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Morris
        In this case, a jury convicted Carl Yancy, Jr. of murder. He raises ten issues on appeal, complaining of the legal and factual sufficiency of the evidence, the trial court's denying him a hearing, the trial court's decisions to admit certain evidence, and the trial court's denials of his motions for mistrial. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
        Appellant lived with Berlinda Jackson, the deceased victim, and her approximately twelve- year-old daughter in a home owned by the deceased. He had agreed to find a new home because the deceased had determined that, despite their romantic relationship, appellant was not contributing enough to the household income.
        One evening the deceased started loudly commenting that appellant needed to leave and expressing displeasure at his continuing to live in her home. The deceased's daughter, in her bedroom, could hear the comments escalating as her mother moved from the kitchen of the home into the deceased's bedroom, where appellant was. The daughter then heard three to five gunshots and her mother screaming. She went to the living room and immediately called her brother for help, but he was a long distance away from the house. She attempted to call 911 as appellant left the deceased's bedroom. He asked the daughter to put down the phone and then took it, along with some of his belongings and his truck radio, as he left the house. In the daughter's opinion, appellant looked fine when he left. He did not appear to have any injuries, and he was not breathing heavily. He seemed to be in a rush to leave.
        The daughter then grabbed a kitchen knife to protect herself from appellant, but he did not return. After he left, the remaining phone in the house was unuseable. In addition, the door to the deceased's bedroom was locked, and the deceased was unresponsive to her daughter's cries. The daughter walked to a neighbor's house and called her brother and her brother's girlfriend.
        When the brother arrived at the scene, he found police in the front yard. His mother was lying dead on her bedroom floor. He lay down on top of her and became hysterical. Both he and the deceased's daughter testified that before the shooting, appellant had been a kind man whom they had liked. They testified that the deceased and their mother often fought about money, but the fights never escalated into violence.
        The bullet wounds to the deceased's body included two entry wounds in her back - one directly in her mid-back and one in her left flank area. Six shell casings were found at the scene. An expert testified that gunshot residue on the back of the deceased's right hand indicated she was likely either within close range of the gun trying to defend herself when it was fired or she fired it herself. Hand wipings for gunshot residue were not taken of the deceased's palms. The expert also analyzed the bullet holes in the deceased's clothing. Based on her examination of the holes, the expert testified that only one of the gunshots was from a range as close as six inches but no further away than sixty inches; the rest of holes indicated that the deceased had been shot at a distance of at least forty-eight inches. The deceased's blood alcohol content at the time of her death was over the legal limit for operating a motor vehicle.
        Appellant testified in his defense. He claimed that after drinking to excess and commenting about his failure to pay his share of the bills at her house, the deceased unexpectedly pulled a gun out of the bedroom closet and pointed it at him, “screaming and hollering.” He claimed the gun went off one time as he was attempting to wrest it from the deceased's hands. He further claimed he shot the gun several other times because she was “coming at” him and he feared for his life. Appellant testified he bought the gun for the deceased for her protection approximately one year before the shooting.
        After the shooting, according to appellant, he “prayed over” the deceased “for at least about five minutes,” then he put the gun in his truck, went back into the house to grab his billfold, and took the phone from the deceased's daughter to try to call 911. Appellant claimed the phone was not working. The daughter denied that this was the case. He testified that he then gave the daughter a hug and kiss and told her he loved her and would see her later. Again, the daughter denied this took place. Appellant next retrieved his truck radio and left through the garage. He claimed he felt he had to leave the house because he did not want an “altercation” with the rest of the family.
        Appellant fled to the home of a friend and stayed there overnight before turning himself in to police the next day. When asked why he got rid of the gun, he replied, “. . . I didn't want it around me or nothing. I just threw it away. I just threw it out the window.” Appellant claimed he did not lock the deceased's bedroom door before leaving the house. He asserted that “[s]ometimes . . . that door just locks on its own, or somebody can open the door and from the outside and then it'll lock itself.”
        Testimony at trial showed that the deceased was not a small woman and that she was unafraid of confronting appellant or anyone else. The deceased's son testified that appellant had threatened his mother in the past. The son further testified that his mother was happy on the evening of the offense because she had gotten a promotion and raise at work.
        The gun used in the shooting was a .380 semiautomatic pistol. A firearms expert who tested the weapon testified that about eight pounds of pressure must be applied to the trigger for the gun to fire each time.
Discussion
        In his first two issues on appeal, appellant contends the evidence against him is legally and factually insufficient to support his murder conviction. He specifically complains the State failed to meet its burden of persuading the jury that he did not act in self-defense. We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005).
        In contrast, when reviewing the factual sufficiency of the evidence, we view all of the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 416-17 (Tex. 2006). Evidence that rationally supports a verdict of guilt beyond a reasonable doubt under the Jackson legal sufficiency standard may still be factually insufficient when the verdict “seems clearly wrong or manifestly unjust” or “against the great weight and preponderance of the evidence.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury on these questions “albeit to a very limited degree.” Id. We will reverse a guilty verdict on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417.
        A person commits the offense of murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1), (2) (Vernon 2003). A person is generally justified, however, in using deadly force against another if he reasonably believes that deadly force is necessary to protect himself against the other's use or attempted use of unlawful deadly force, and a reasonable person in the actor's situation would not have retreated. Tex. Penal Code Ann. §§ 9.31(a), 9.32(a) (Vernon Supp. 2007). A defendant has the burden of producing some evidence to support a claim of self-defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant produces some evidence, the State then bears the burden of persuasion to disprove the raised defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). The burden of persuasion does not require the State to produce evidence; it requires only that the State prove its case beyond a reasonable doubt. Id. Thus, to convict a defendant of murder after he has raised the issue of self- defense, the State is required to prove the elements of the offense beyond a reasonable doubt and to persuade the jury beyond a reasonable doubt that the defendant did not kill in self-defense. See id. at 914.         Here, appellant admitted that he shot the unarmed deceased. He shot her several times, striking her two times in the back. The record does not indicate the deceased was threatening appellant with deadly force once appellant had the gun, nor does it indicate he could not have retreated from her. Moreover, appellant's actions after the shooting belie his claim that he was forced to act in self-defense due to the deceased's unusual actions. After reviewing the record under the appropriate standards, we conclude the evidence supporting appellant's murder conviction is legally and factually sufficient.
        In his third, fourth, and fifth issues, appellant complains about the admission of extraneous offenses into evidence during the guilt-innocence phase of trial. He first argues in issue three that the trial court denied his request for a full hearing out of the presence of the jury on the admissibility of these offenses for the purposes of impeaching his testimony before he testified in his defense. Appellant has not preserved this complaint for appeal.
        At trial, the court held preliminary hearings on the convictions it would permit the State to use in impeaching appellant's testimony. Before appellant testified, his counsel noted to the court that he was “asking for a hearing prior to [appellant's] testimony” and the court “said I wasn't entitled to it.” Appellant's counsel then stated that he agreed to the court's holding and stated that he believed after appellant testified he was entitled to a full hearing on the admissibility of the impeachment offenses. The trial judge agreed that after appellant testified, the court would have the hearing. The hearing occurred at the appointed time, and the trial court then determined that if the jury believed beyond a reasonable doubt that appellant committed the offenses, it could consider appellant's previous aggravated robbery offense for the purpose of determining whether appellant acted in self-defense in the charged offense and consider his previous conviction for an assault on a female to impeach his credibility as a witness and for the purpose of determining whether he had acted in self-defense in the charged offense. Afterward, the State admitted evidence of the two offenses before the jury. Because appellant did not complain at trial that his hearing occurred after his testimony, he cannot do so now. See Tex. R. App. P. 33.1(a). We resolve appellant's third issue against him.
        In his fourth and fifth issues, appellant complains about the admission of the previous aggravated robbery and assault convictions into evidence. He argues the prejudicial effect of the offenses “far outweighed” any probative value they may have had. The State responds that appellant has failed to adequately brief these issues because he has altogether failed to discuss the factors involved in making such a determination. We agree with the State that these issues are inadequately briefed. See id. 38.1(h). Nevertheless, in the interest of justice, we will address the admission of the extraneous offenses.
        We generally consider a number of factors in weighing the probative value of a conviction against its prejudicial effect. A non-exclusive list of such factors includes (1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the defendant's later history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. See Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992).
        To begin, the impeachment value of crimes that involve deception is higher than crimes that involve violence, and the latter have a higher potential for prejudice. See id. at 881 Thus, this factor militates against admission of violent crimes. The second factor favors admission if the past crime is recent and if the witness has demonstrated a propensity for running afoul of the law. If, however, the charged crime is similar to the past crime, the third factor militates against admission. The rationale behind this is that the admission for impeachment purposes of a crime similar to the crime charged might permit the jury to convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense. See id.
        The last two factors in the Theus test are related, because both depend on the nature of the defendant's defense and the means available to him of proving that defense. Id. When the case involves the testimony of only the defendant and the State's witnesses, the importance of the defendant's credibility and testimony escalates. As the importance of the defendant's credibility escalates, the need to allow the State an opportunity to impeach the defendant escalates as well. See id.
        We will reverse a trial court's ruling permitting use of a previous conviction only upon a showing of a clear abuse of discretion. See id. In appellant's case, the assaultive nature of his two offenses did not have high impeachment value, and they had some potential for prejudice. This factor weighs against admission. As to the temporal proximity factor, appellant was convicted of aggravated robbery in 1987. But just after being released from parole in 2001, he committed the assault offense against a woman. Additionally, he had been convicted of other offenses before the aggravated robbery that were not admitted into evidence during the guilt-innocence phase of trial. Thus, he has shown a propensity for running afoul of the law. This factor weighs in favor of admission of both offenses. See Morris v. State, 67 S.W.3d 257, 264 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd).
        The similarity factor also weighs in favor of admission of both offenses because the murder in this case was not similar to aggravated robbery or assault. Finally, as to the last two factors - the importance of appellant's testimony and the need to impeach - only appellant and the deceased were present when appellant fired the fatal shots. His claims of self-defense rested entirely on his testimony at trial. Accordingly, it was crucial for the State to be able to impeach his testimony and to refute his claim of self-defense. These factors weigh in favor of admitting the previous offenses.
        After evaluating appellant's case under all the Theus factors, we conclude the trial court did not abuse its discretion in admitting the previous aggravated robbery and assault against a female offenses into evidence. We resolve appellant's fourth and fifth issues against him.
        In his sixth, seventh, and eighth issues, appellant complains the trial court erred when it overruled his motions for mistrial. Appellant specifically complains in his sixth issue of an occasion where the prosecutor asked appellant, “[T]his isn't the first time you've been violent against a female, is it?” In his seventh issue, appellant complains of two comments that the prosecutor made to appellant when cross-examining him. He first complains of the prosecutor's comment, “Well, here's the deal. You can't ride two horses at once. You can't say I didn't mean to do it, it was an accident, and say, I did it. I had to do it. You can't ride two horses.” Next, appellant complains the prosecutor also stated to appellant as she was cross-examining him, “Mr. Yancy, you killed a woman. You're going to have to do better than, oh, it just happened.” Finally, appellant complains in his eighth issue of the trial court's failure to grant him a mistrial when “family members in the audience made prejudicial gestures that potentially had an improper influence on the jury.”
        We review a trial court's denial of a mistrial under an abuse of discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). In making this assessment, we consider: (1) the severity of the underlying misconduct, (2) any curative measures adopted to cure the misconduct, and (3) the certainty of the conviction absent the misconduct. See Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007). Ordinarily, a prompt instruction to disregard by the trial court will cure any error associated with an improper question, answer, or argument. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). A mistrial should be granted only when the error is “highly prejudicial and incurable.” Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003).         The State argues that appellant has once again inadequately briefed these complaints about the trial court's failure to grant a mistrial, because his brief fails “to cite to or analyze law and facts regarding the denial of a mistrial or argue that the trial court's instruction to disregard did not cure any harm.” See Tex. R. App. P. 38.1(h). We again agree with the State but resolve appellant's complaints in the interest of justice.
        In the first instance, when the prosecutor asked appellant about past violence against a female, the trial court sustained appellant's objection that the question constituted improper impeachment and instructed the jury to disregard the question. Furthermore, appellant later admitted that he had previously been convicted of assaulting a woman. Given these facts we cannot say the trial court abused its discretion in denying appellant's motion for mistrial. We resolve appellant's sixth issue against him.
        Appellant next complains in his seventh issue that the trial court erred in denying his motion for mistrial when the prosecutor improperly commented during her cross-examination of appellant. When the prosecutor made the comment that appellant could not “ride two horses at once,” the trial court made no response to appellant's objection that the prosecutor was making a statement that was not factually and legally correct. The court instructed the prosecutor to “[a]sk the question, please.” The trial court also denied appellant's request that the jury be instructed to disregard the prosecutor's statement. Appellant did not in fact request a mistrial, so this appellate complaint is meritless.
        Also in his seventh issue, appellant complains of the prosecutor's comment that he would have to “do better than” claiming that the offense “just happened” because he had “killed a woman.” The trial court sustained appellant's objection that the statement was not a question and instructed the jury to disregard it. When appellant requested a mistrial, the trial court denied the request and told the prosecutor to “[j]ust ask questions.” Although we do not condone the prosecutor's conduct, we believe any harm caused by it was cured by the trial court's prompt instructions to the jury and to the prosecutor. We resolve appellant's seventh issue against him.
        Appellant's eighth issue refers to an incident that occurred during the prosecutor's jury argument concluding the guilt-innocence phase of trial. At one point, appellant's attorney requested to approach the bench, and the trial court retired the jury. The trial judge then stated the following:
 
        Let the record reflect that the jury has been retired. Let the record further reflect that several members of the audience have left obviously in an emotional state. We had a bench conference . . . off the record at the request of the defense attorney.
        I'm instructing anyone in the courtroom if you cannot sit through this, I'm asking you to leave at this time. It could have an adverse effect on this trial. And I understand the nature of this offense is very emotional, but if you cannot sit through the final arguments without disruptions or getting up and leaving, I'm going to have to ask you to leave at this point. Okay?
 
        Appellant's attorney was then permitted to describe for the record what had occurred. He stated:
 
        Just so the record is clear, it's not uncommon for there to be some show of emotion by the families during argument. However, I'm sitting here facing forward. At that point, about a minute or so back into the prosecution argument, someone jumped up and made a very loud audible sigh and upset [sic] and ran out and slammed the doors and left the courtroom. I didn't turn around because I was hoping that that would be the end of it at that point in time.
 
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        And so I sat here again with my back to the door, or with my back to the audience, and about 30 seconds later I hear a bunch of people jumping up, more sighs, more disgust or displeasure of what's taking place. And this is something that is loud enough in my opinion that it was obvious to everybody in this courtroom, including the jurors, the jurors heads were turning. And as these people went storming out of the courtroom that's when I asked to approach the bench.
        And out of abundance of caution at this point, Judge, I feel that the activities of these family members have introduced by their actions and prejudiced this jury that I don't feel my client is going to get a fair hearing and a fair deliverance of process. I think what the family members have done [has] prejudiced us beyond instruction, and we would at this time respectfully move for mistrial.
 
        The trial court denied the motion for mistrial and arranged for the people who had left the courtroom to not be permitted to return. When the jury returned to the courtroom, the trial judge stated, “Members of the jury, previous to this recess you saw people in the gallery leave under an emotional state. I'm instructing you to disregard that for any purpose that it not influence your verdict in this case. You should not discuss it, refer to it or allude to it in deliberation.”
        An outburst by a bystander will not result in reversible error unless the defendant demonstrates a reasonable probability that the conduct interfered with the jury's verdict. See Brown v. State, 92 S.W.3d 655, 661 (Tex. App.-Dallas 2002), aff'd, 122 S.W.3d 794 (Tex. Crim. App. 2003). Here, appellant has failed to meet his burden of showing that the outburst during jury argument interfered with the jury's verdict in his case. In light of the trial court's handling of the situation and instructions to the jury, we cannot say the court abused its discretion in denying appellant's motion for mistrial. We resolve appellant's eighth issue against him.
        In his final two issues, appellant complains about the trial court's admitting into evidence during the punishment phase of trial documents purporting to show his convictions for past offenses. He argues that State's exhibits 64, 68, and 67 were not properly linked to him. We review the trial court's decision to admit evidence under an abuse of discretion standard. Chaddock v. State, 203 S.W.3d 916, 923 (Tex. App.-Dallas 2006, no pet.). To establish that a defendant has previously been convicted of an offense, the State must prove beyond a reasonable doubt that a previous conviction exists and that the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). No specific method of proof is required to establish these two elements. The State may prove the elements, among other ways, by the defendant's admitting commission of the offense or by the State's offering documentary proof that contains sufficient information to establish both the existence of a previous conviction and the defendant's identity as the person convicted. See id. at 921-22.
        State's exhibit 64 contains court documents evidencing a revocation of the probation of a Carl Yancy, Jr. for the offense of unlawfully carrying a weapon in a tavern. The documents do not contain appellant's fingerprints or photograph, but they contain the signature of “Carl Yancy, Jr.” State's exhibit 68 is a pen packet containing documents showing appellant's conviction for the unlawful carrying a weapon offense and his conviction for forgery. The pen packet contains appellant's photograph and fingerprints. A fingerprint expert testified that the fingerprints in the pen packet matched fingerprints the expert had taken from appellant before trial. Accordingly, appellant was sufficiently linked to the forgery and unlawful carrying of a weapon offenses. The trial court did not abuse its discretion in admitting the exhibits. We resolve appellant's ninth issue against him.
        State's exhibit 67 is documentary evidence showing the conviction of a Carl Yancy, Jr. for assault committed against a female in 2001. The fingerprint expert was unable to use the fingerprint contained in this exhibit because it is too blurry. The expert was, however, able to link the birth date listed in the exhibit to the birth date listed for appellant in State's exhibits 64 and 68. In addition, appellant admitted during his testimony at the guilt-innocence phase of trial that he had been convicted of assault against a female in 2001. We conclude the trial court did not abuse its discretion in admitting this exhibit. We resolve appellant's tenth issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070457F.U05