MERL LOVINGS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued April 29, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01204-CR
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MERL LOVINGS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-71704
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MEMORANDUM OPINION
Before Justices Moseley, Bridges and Murphy
Opinion By Justice Bridges
        Appellant Merl Lovings appeals his conviction for aggravated robbery with a deadly weapon and accompanying fifteen-year sentence. We affirm.
Background
 
        Complainant Demond Green testified that, in February of 2007, he was frequently at his grandfather's house on Garrison Street to sell marijuana. On the day of the offense, he stood outside the home and some people arrived in a silver Mercedes. Green knew one of the men, Charles McCloud. He did not know the other man, appellant. McCloud's girlfriend, Ashley, was also in the Mercedes.
        The occupants of the Mercedes asked him about marijuana. While in the front yard of the house, Green told them he did not have marijuana. Appellant and McCloud got out of the car and walked toward the house. Then, Green went inside the house with the men and locked the burglar bars on the front door.
        Green testified that appellant pulled a pistol and told Green to “drop out,” meaning it was a robbery. Green saw appellant had a pistol and started running. Green ran toward the front door, past McCloud, and unlocked the front door to get outside. In a written statement, Green stated he then jumped off of the porch and got shot in the hip/upper leg. McCloud jumped off behind him and fell on Green. Green testified McCloud then said, “Come on with it, Bitch.” While Green was lying face down on the ground, appellant came up to him and McCloud grabbed his ring and necklace. At trial, Green testified appellant then shot him in the hip/upper leg. Green said, although he did not see who shot him, he knew it was appellant who did it because he saw appellant with the gun before the shooting and because appellant was the only one who had a gun. Green also testified that when appellant tried to shoot him in the head, McCloud stopped him by putting up his hands and saying, “Don't do that.”
        Green saw appellant go back inside the house with the gun and saw McCloud get into the Mercedes. When Green noticed no one was around him, he got up and ran away. He said McCloud tried to run him over with the Mercedes, but scraped a pole. Green saw someone he knew driving down Garrison and flagged him down and left with him. Green called for an ambulance when they turned the corner at 51st Street.
        When the ambulance arrived, the paramedics began treating Green. The police arrived and Green talked with Officer Andrews, telling her he was shot while running down Garrison. Green went to Baylor Hospital and talked to Officer Nelson while at the hospital. Green wrote a statement for Nelson while at the hospital that indicated he was shot inside the house.         Thomas McPherson, a Dallas police sergeant, testified that on February 18, 2007, he went to 51st Street as a supervisor due to a shooting call. Green had already been transported to the hospital. McPherson talked to Officer Andrews and learned that a revolver had been used. Officer Andrews subsequently went to Garrison Street to look for a crime scene but did not find one.
        Charles McCloud testified for the State and acknowledged he was also charged with aggravated robbery. He testified that he had grown up with Green and appellant asked McCloud to take him to Green's house on February 18, 2007. McCloud and appellant had heard Green had some marijuana at the house on Garrison. When they arrived in McCloud's Mercedes, Green was standing outside in front of the house. McCloud and appellant got out of the car and the three went inside the house.
        When Green and appellant went toward the kitchen, McCloud heard scuffling. He heard Green say, “Fool, what you doing?” Then, McCloud heard shots. McCloud testified that he did not know appellant was going to rob Green and did not know appellant had a pistol until he saw it while appellant was chasing Green. McCloud testified that he did not carry a gun.
        McCloud, still by the front door, saw Green running toward him and appellant behind Green shooting. He heard two or three shots. McCloud said he opened the burglary bars and he and Green jumped off the porch into the front yard. McCloud said he fell next to Green and appellant stuck the pistol in the back of Green's head. McCloud knocked the pistol back, telling appellant, “don't shoot the fool 'cause I grew up with him.” According to McCloud, all of the shots occurred inside the house.
        McCloud said appellant told him to take Green's jewelry and McCloud did. When appellant went back inside the house, McCloud told Green to get up and run, which Green did. McCloud jumped into his Mercedes and almost hit Green, but claimed he was not trying to run him over. He hit a pole and saw Green jump into someone else's car.
        Dallas police officer Barrett Nelson testified that he talked with Green at the hospital. Green stated he was sure appellant was the man who shot him. During Nelson's investigation, he located the Mercedes used in this offense and found damage on the right passenger's front fender which corroborated what Green had told him about the robbery.
        At the conclusion of trial, the jury found appellant guilty of aggravated robbery with a deadly weapon and assessed his punishment at fifteen years in the Institutional Division of the Texas Department of Criminal Justice. This appeal ensued.
Analysis
 
        Appellant raises nine issues on appeal. First, he contends the trial court erred in submitting an application paragraph that applied the law of the parties to the case under the theory that McCloud was the shooter. Second, he argues the trial court committed egregious error by not instructing the jury that accomplice McCloud's testimony had to be corroborated by other evidence tending to connect appellant to the crime. Third, appellant asserts that the evidence is factually insufficient to support his conviction. Fourth, he alleges the trial court erred in including an affirmative finding on the use of a deadly weapon in the judgment when the jury made no affirmative finding in its verdict. In his fifth, sixth, and seventh issues, appellant contends the prosecutor impermissibly commented on appellant's failure to testify in violation of the United States Constitution, the Texas Constitution and the Texas Code of Criminal Procedure. In his eighth issue, appellant alleges the trial court erred in overruling appellant's objection to the prosecutor's punishment phase closing argument. Finally, appellant argues the cumulative effect of the foregoing errors warrants a reversal.
        We turn to appellant's first issue in which he alleges charge error in the application paragraph that applied the law of the parties to the case under the theory that McCloud was the shooter. When addressing allegations of charge error, we must first determine whether error actually occurred. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, we then determine whether there was harm sufficient to warrant reversal. Id.
        “A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” Tex. Penal Code § 7.01(a). Thus, under the law of the parties, the State is able to enlarge a defendant's criminal responsibility to acts in which he may not be the principal actor. Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996).
        Appellant argues the second application paragraph- applying the law of the parties under the theory McCloud was the shooter- was erroneous because there was no evidence McCloud shot Green. The test for determining whether an instruction should be submitted to the jury on the law of the parties was established by the Court of Criminal Appeals:
 
[I]f the evidence introduced upon the trial of the cause shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, the State's case rests upon the law of [parties] and is dependant, at least in part, upon the conduct of another. In such a case, the law of parties must be submitted and made applicable to the facts of the case.
 
McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App. 1974). When the evidence is sufficient to support both primary and party theories of liability, the trial court does not err in submitting an instruction on the law of parties. Ransom v. Texas, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994).
         Evidence is sufficient to convict the defendant under the law of the parties where he is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). To convict someone as a party to an offense, the evidence must show that at the time of the offense, the parties were acting together, each doing some part of the execution of the common purpose. Id. In determining whether the accused participated as a party to an offense, we may look to events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant that show an understanding and common design to do the prohibited act. Goff, 931 S.W.2d at 545; Cordova, 698 S.W.2d at 111. Circumstantial evidence may be used to prove one is a party to an offense. Ransom, 920 S.W.2d at 302; Cordova, 698 S.W.2d at 111.
        Although the record includes varying accounts of what transpired on the day of the offense, the testimony is consistent among the witnesses that both appellant and McCloud arrived together and were present at the time of the offense. Green testified that he saw appellant with a gun, but did not see who shot him because he was shot in the back. McCloud claimed appellant shot Green. At trial, appellant raised the defensive theory, through cross-examination of Green and McCloud, that McCloud was actually the shooter.   See Footnote 1  Furthermore, the record includes evidence that appellant was the one who instructed McCloud to take Green's jewelry and told Green it was a robbery.
        We conclude the evidence was sufficient to connect appellant to the offense as a party and to show he was present at the crime scene while aiding in the commission of the aggravated robbery of Green. See Ransom, 920 S.W.2d at 302. Thus, the trial court was justified in submitting a parties instruction and appellant's first issue is overruled. See Tex. Penal Code § 7.01(a).
        In his second issue, appellant complains the trial court committed egregious error by not instructing the jury that accomplice McCloud's testimony had to be corroborated by other evidence tending to connect appellant to the crime. A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14. An accomplice is a person who participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a lesser-included offense. Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1998). A defendant is entitled to an accomplice witness instruction if and only if “there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice.” Id. (quoting Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998)). Here, McCloud was also charged with aggravated robbery and, therefore, was an accomplice as a matter of law. See Kerns v. State, 550 S.W.2d 91, 94 (Tex. Crim. App. 1977).
        However, the record before us shows the trial court failed to instruct the jury that an accomplice's testimony must be corroborated by other evidence tending to connect the defendant to the crime. The failure to include that instruction was error. Tex. Code Crim. Proc. Ann. art. 38.14; Howard v. State, 972 S.W.2d 121, 126 (Tex. App.--Austin 1998, no pet.).
        But, because no objection to this omission was made at trial, we must reverse the judgment only if appellant suffered egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating (non-accomplice) evidence is “so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive.” Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)).
        Removing McCloud's testimony from consideration, Green testified that appellant had a gun, shot at him several times as he tried to escape, and suffered a gunshot wound. Further, Green testified appellant told him to “drop out,” meaning it was a robbery, and was present when McCloud took his jewelry. We conclude the non-accomplice testimony connects appellant to the offense of aggravated robbery and, therefore, appellant did not suffer egregious harm from the failure to instruct the jury under Article 38.14. We overrule appellant's second issue.
        In his third issue, appellant contends the evidence is factually insufficient to support appellant's conviction for aggravated robbery. The indictment in this case charged appellant with committing theft with intent to obtain and maintain control over Green's property without the effective consent of Green and with intent to deprive him of said property. It further alleged appellant knowingly caused bodily injury to Green by shooting him with a firearm and did then and there use and exhibit a deadly weapon. See Tex. Penal Code Ann. §§ 29.02, 29.03.
        In a factual sufficiency review, we review the evidence in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, or (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Id.; Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). A reversal for factual insufficiency cannot occur when “the greater weight and preponderance of the evidence actually favors conviction.” Roberts, 220 S.W.3d at 524.
        Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited degree, our review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur. Id. Thus, we afford due deference to the trier of fact's determination, because it was in the best position to evaluate the credibility of the witnesses. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). See also Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (The trier of fact, having heard all the testimony and viewed the demeanor of the witnesses, was free to accept or reject any and all evidence presented by either side.). We turn to a review of the evidence under these principles.
        Appellant argues that the State's case rested upon the accounts of Green and accomplice- witness McCloud, which were both untrustworthy. Although we agree with appellant that the record contains inconsistencies in the testimony of both Green and McCloud, the jury was free to believe some, all, or none of their testimony and we must give the jury due deference. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Marshall, 210 S.W.3d at 625.
        The record before us contains evidence that appellant arrived at the scene of the offense with McCloud. Both Green and McCloud testified appellant had a gun at the time of the offense and that appellant shot Green. The record also includes evidence that McCloud took Green's jewelry and evidence that appellant told McCloud to take Green's property or told Green it was a robbery.
        The trier of fact was free to believe the testimony of Green and McCloud with respect to the elements of the charged offense. Wesbrook, 29 S.W.3d at 111; Chambers, 805 S.W.2d at 461. Thus, our examination of the record reveals that the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust. Roberts, 220 S.W.3d 524. We overrule appellant's third issue.
        In his fourth issue, appellant contends the trial court erred in including an affirmative finding on the use of a deadly weapon in the judgment when the jury made no affirmative finding in its verdict. The indictment in the record before us alleges, in pertinent part, that appellant “did then and there intentionally and knowingly cause bodily injury to said complainant, by SHOOTING COMPLAINANT WITH A FIREARM, and said defendant did then and there use and exhibit a deadly weapon, to-wit: FIREARM . . . .” (emphasis in original).         When the jury is the trier of fact, as here, the trial court may not properly enter that the jury has made an affirmative finding concerning the defendant's use or exhibition of a deadly weapon or firearm during the commission of the offense unless: (1) the deadly weapon or firearm has been specifically pled as such in the indictment (applies when the verdict reads “guilty as charged in the indictment”), (2) where not specifically pled as a deadly weapon or firearm, the weapon pled is per se a deadly weapon or firearm, or (3) a special issue is submitted and answered affirmatively. Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985).
        We conclude the first condition was satisfied, because the jury found appellant “guilty of aggravated robbery, as charged in the indictment.” Thus, the trial court properly made an affirmative finding of a deadly weapon. Polk, 693 S.W.2d at 396. We overrule appellant's fourth issue.
        In his fifth, sixth and seventh issues, appellant contends the prosecutor impermissibly commented on appellant's failure to testify in violation of the United States Constitution, Texas Constitution, and Texas Code of Criminal Procedure. See U.S. CONST. amends. V and XIV; TEX. CONST. art. I, §§ 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2008) (a defendant need not testify and his failure to testify shall not be alluded to or commented on by counsel). The prohibition against a direct comment on the accused's failure to testify is mandatory. Tovar v. State, 777 S.W.2d 481, 489 (Tex. App.--Corpus Christi 1989, pet. ref'd). To violate the right against self- incrimination, the offending language must be viewed from the jury's standpoint and the implication must be clear that the comment referred to the defendant's failure to testify. Bustamante v. State 48 S.W.3d 761, 765 (Tex. Crim. App. 2001); Swallow v. State 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. Bustamante, 48 S.W.3d at 765; Lipscomb v. State, 467 S.W.2d 417, 420-21 (Tex. Crim. App. 1971). In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character. Cruz v. State, 225 S.W.3d 546, 549 (Tex. Crim. App. 2007); Bustamante, 48 S.W.3d at 765. If the remark complained of called the jury's attention to the absence of evidence that only the testimony from appellant could supply, the conviction is subject to reversal. Garret v. State, 632 S.W.2d 350, 353 (Tex. Crim. App. 1982); Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. 1981) (citing Myers v. State, 573 S.W.2d 19 (Tex. Crim. App. 1978)).
        Specifically, appellant complains about the following:
 
[PROSECUTOR]:
 
. . . What remorse have you heard? What potential for rehabilitation have you heard? They still think he's a good boy. What have you heard? Absolutely nothing. Because there is nothing. There is nothing. He's not remorseful.
 
 
        [DEFENSE COUNSEL]:
 
Your honor, I object to counsel referring to the fact that my client did not testify.
 
        
        THE COURT:
 
 
 
Overruled.
 
 
        
        [PROSECUTOR]:
 
What have you heard about remorse, ladies and gentleman? Absolutely nothing. Absolutely nothing. Again, you start at the top end and you work your way down and if you heard anything that would cause you to have, you know, some type of mercy on Mr. Lovings, then you do that . . . .
 
We agree with appellant that the foregoing comment was an improper comment on appellant's failure to testify, and we disapprove of such improper comments. See Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992); Thomas v. State, 638 S.W.2d 481, 484 (Tex. Crim. App. 1982); Cacy v. State, 901 S.W.2d 691, 704 (Tex. App.-El Paso 1995, pet. ref'd) (When no testimony exists concerning the defendant's lack of remorse, a comment on his lack of remorse would naturally and necessarily be one on the defendant's failure to testify because only he can testify as to his own remorse.).
        However, in this case, we conclude appellant waived error. Prior to the comments complained of in appellant's brief, the record reveals that the prosecutor also made the following similar comments during closing argument:
 
. . . What did you hear good? What did you hear? Did you hear anything bout how remorseful he was? Did you hear anything about how, if he got probation, how he's going to, you know, the things he may try to do to become a productive citizen? You heard nothing. Absolutely nothing.
        
And I submit to you that his family would be here to support him if he killed 50 people. They love him. This is her son. This is their nephew. They would be here to support him, you know. That's a burden he places on them . . . .
 
Defense counsel did not object to the foregoing and, in order to preserve an allegation of error for review, a defendant must make a timely objection every time an allegedly improper comment is made. See Rodriguez v. State, 955 S.W.2d 171, 175 (Tex. App.--Amarillo 1997, no pet.) (finding that appellant waived complaint about prosecutor referring to him as a “gang member” because he did not object every time a reference to his gang membership was made); see also Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (stating the law in Texas requires a party to continue to object each time inadmissible evidence is offered).
        Because defense counsel failed to lodge an objection each time the prosecutor similarly commented on the defendant's failure to testify, appellant waived error. Id. We, therefore, overrule appellant's fifth, sixth and seventh issues.
        In his eighth issue, appellant contends the trial court erred in overruling appellant's objection to the prosecutor's punishment phase closing argument that asked the jurors whether they could face a future hypothetical complainant's family. It is axiomatic that proper jury argument falls within one of four distinct categories: (1) summary of the evidence; (2) reasonable deduction from the evidence; (3) in response to argument of opposing counsel; and (4) plea for law enforcement. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991) (citing Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990)). Reversible error results from improper prosecutorial argument only when the argument is “extreme, manifestly improper, injects new and harmful facts into [the] case or violates a mandatory statutory provision and is thus so inflammatory that its prejudicial effect cannot reasonably be cured by judicial instruction to disregard argument.” Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991).
        Appellant specifically complains of the following argument of the prosecutor during the punishment phase of trial:
 
. . . I submit to you that because he's escalating, he's walking around with a fully loaded clip, now he's got a .40 caliber handgun, 14 rounds, 14 potential victims. I submit to you it's a real deduction from the evidence that the next case when you think about putting him back out on the street, that victim won't walk in here. We will just have a photo. I'll just ask you, you know, who is it going to be? What is that person going to look like? And then can you face their family when they're sitting here?
 
        During the punishment phase of trial, the State recalled Officer Nelson who testified that, when he arrested appellant approximately nine months after the offense, appellant was in possession of a .40 caliber semiautomatic handgun. The gun held a magazine, containing 14 live rounds of .40 caliber ammunition with hollow point hydro-shot. Officer Nelson testified it was not the type of ammunition that typically was found in that type of handgun and that the hollow-point ammunition would “leave a big hole” in a person.
        It is the duty of counsel to confine their arguments to the record. Carter v. State, 614 S.W.2d 821, 823 (Tex. Crim. App. 1981). However, the prosecutor is free to draw all inferences from the evidence that are reasonable, fair and legitimate. Id. Furthermore, insinuations that jury members could become future victims of the defendant are also permissible as a plea for law enforcement. See, e.g., DeBolt v. State, 604 S.W.2d 164, 169 (Tex. Crim. App. 1980) (“[W]hat I'm mainly concerned with is [defendant] is not out among the public, living next door to me or next door to you or anybody else” was proper plea for law enforcement); Starvaggi v. State, 593 S.W.2d 323, 328 (Tex. Crim. App.1979), cert. denied, 448 U.S. 907 (1980) (“I just say this, that I hope [defendant] doesn't come knocking on one of your doors at eight o'clock in the evening” held a proper plea for law enforcement); Moyer v. State, 948 S.W.2d 525, 531 (Tex. App.-Fort Worth 1997, pet. ref'd ) (prosecutor properly argued, “How could any of you go to sleep at night wondering whether he was on the street? Who is going to be next?”); Long v. State, 820 S.W.2d 888, 894-95 (Tex. App.- Houston [1st Dist.] 1991, pet. ref'd) (argument “they don't do it once” was proper reference to what might happen in the future).
        Based upon the evidence introduced through the testimony of Officer Nelson during the punishment phase of trial, we conclude the prosecutor's argument properly summarized the evidence, made reasonable deductions from the evidence, and made a plea for law enforcement. Long, 823 S.W.2d at 267. We, therefore, overrule appellant's eighth issue.
        In his final issue, appellant argues the cumulative effect of the foregoing errors warrants a reversal. In other words, appellant contends that if any of the issues raised are not harmful standing alone, the cumulative effect of the errors raised in issues one, two, and three warrant a new trial and the cumulative effect of the errors set forth in issues five, six, seven, and eight warrant a new punishment trial.
        Although we agree with appellant that it is conceivable that a number of errors may be found harmful in their cumulative effect, we are aware of no authority holding that non-errors may in their cumulative effect cause error. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). Thus, we overrule appellant's ninth issue.
        Having overruled all of appellant's issues, we affirm the judgment of the trial court.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081204F.U05
 
Footnote 1 Although we may not consider it as evidence, appellant's counsel specifically argued during closing argument that “I submit to you Charles McCloud committed this offense. Charles McCloud is the one that was shooting at Demond Green.” He further argued appellant's “mere presence” with McCloud at the location did not constitute an offense.