Caudill, Craig Bryant v. The State of Texas--Appeal from 180th District Court of Harris County

Opinion issued December 19, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-01125-CR

CRAIG BRYANT CAUDILL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 810,938

O P I N I O N

A jury found appellant, Craig Bryant Caudill, guilty of aggravated robbery and assessed punishment at 15-years confinement. In seven points of error, appellant contends the evidence was legally and factually insufficient to support his conviction and the trial court erred in failing to suppress his written statement, erred in failing to suppress evidence of an out-of-court identification and in-court identification, erred in failing to grant appellant s motion for mistrial, and erred in allowing the State to produce evidence of extraneous offenses during the punishment phase of trial.

We affirm.

Factual Background

Angela Morriesette, manager of Seville Cleaners, testified that on April 12, 1999, she saw appellant enter her store between 1:00 and 2:00 p.m. Morriesette was waiting on customers at the time, and appellant left. He returned a short time later and asked Morriesette some questions about dry cleaning and laundry, and then left again. Appellant returned a third time, and when all of the other customers had left, he approached Morriesette and said give me the money. As Morriesette reached for a panic button to set off an alarm system, appellant told her to turn around, open the drawer, and give me the money. At the same time, appellant lifted his shirt to reveal the butt of a gun that was protruding from his waistline. Morriesette described the butt of the gun as beige and curved, and said that, although she was not sure if it was an automatic or a revolver, she was sure that it was a gun. Morriesette testified that, after taking the money, appellant drove away in a green van.

Houston Police Officer Maria Row testified that she approached Morriesette nine days after the robbery to show her a photographic array that included a photograph of appellant along with photographs of five other men. Row told Morriesette that the person who committed the crime was not necessarily included in the photographs. Row saw Morriesette positively identify appellant as the man who robbed her.

Houston Police Officer Ken Szymczyk testified that he interviewed appellant in a Louisiana state jail, where appellant was being held. Szymczyk admonished appellant of his legal rights, and appellant waived them in writing and provided a written statement describing his participation in the robbery.

Voluntariness of Appellant s Statement

In point of error one, appellant argues that the trial court erred in admitting his written statement into evidence because it was given involuntarily. Appellant contends that his statement was involuntary because (1) he was not taken before a magistrate before he gave his statement and (2) a magistrate is indispensable to a voluntarily rendered statement. See Tex. Code Crim. Proc. Ann. art. 15.17 (Vernon Supp. 2002).

Although the record reflects that appellant argued to the trial court that he was delayed in seeing a magistrate, he directs us to no evidence establishing the length, if any, of the delay. Even assuming that appellant was delayed in seeing a magistrate, his written statement was not given involuntarily as a matter of law merely because of a delay in being brought before a magistrate. Boyd v. State, 811 S.W.2d 105, 125 (Tex. Crim. App. 1991). Unless a defendant demonstrates a causal connection between his statement and the delay in seeing a magistrate, the validity of a statement will not be affected. Id.; Bonner v. State, 804 S.W.2d 580, 582 (Tex. App. Houston [1st Dist.] 1991, writ ref d). Appellant had the burden to show a causal connection between the delay and his statement. Bonner, 804 S.W.2d at 582.

A defendant s statement is not involuntary unless his will was overborne by police coercion. Guardiola v. State, 20 S.W.3d 216, 223 (Tex. App. Houston [14th Dist.] 2000, pet. ref d). We must review the totality of the circumstances and consider factors such as the length of detention, incommunicado or prolonged detention, denying a family member access to a defendant, refusing a defendant s request to telephone a lawyer or family member, and physical brutality. Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985), overruled on other grounds by Mosely v. State, 983 S.W.2d 249, 264 n.18 (Tex. Crim. App. 1998).

Aside from the delay in seeing a magistrate, appellant cites no other reason in his brief as to why his statement was involuntary. Appellant did not testify at the suppression hearing, and the officers who testified stated that appellant seemed alert in the Louisiana jail and that his written waiver of his legal rights was given voluntarily. There is no evidence in the record that appellant was refused a lawyer after requesting one, was denied the opportunity to communicate with his family, or was subjected to police coercion or brutality of any kind. Moreover, appellant does not explain how an alleged delay in seeing a magistrate caused him to give an involuntary statement. Accordingly, we conclude that the trial court did not err in overruling appellant s motion to suppress his statement.

We overrule appellant s first point of error.

Identification Procedure

In points of error two and three, appellant argues that the trial court erred in refusing to suppress Morriesette s out-of-court and in-court identifications of appellant because the out-of-court identification procedure used by the police was impermissibly suggestive and the in-court identification was tainted by the out-of-court identification.

In determining whether an out-of-court identification was inadmissible, we must decide (1) whether the out-of-court identification procedure was impermissibly suggestive and (2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). The suggestiveness of an identification procedure should be reviewed in light of the totality of the circumstances. Id. Because the admissibility of identification procedures involves the application of law to facts, we will reverse only if we find an abuse of discretion by the trial court. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

Appellant argues that all persons in the photographic array were of similar facial makeup and features except for appellant. We have reviewed the array and disagree with appellant s characterization of it. Appellant s skin color, age, and hair length appear similar to that of most of the other persons in the array. Appellant fails to explain how his characteristics and features set him apart from the others, so as to make the array suggestive. Accordingly, we find his argument without merit.

Appellant also argues that the police approached Morriesette in such a manner that she must have concluded that they had a suspect in mind. Appellant s brief does not detail the specific acts of the police which could have given such an impression to Morriesette. Further, Morriesette read and signed a statement given to her from the police which stated that the array may or may not contain a picture of the person . . . who committed the crime . . . . Our review of the record reveals no conduct of the police which would have led Morriesette to conclude that the person who committed the crime was necessarily in the array. Accordingly, the trial court did not abuse its discretion in refusing to suppress evidence of the out-of-court identification procedure. Because we hold that evidence of the out-of-court identification procedure was admissible, we need not address appellant s argument that Morriesette s in-court identification was tainted by her out-of-court identification.

We overrule points of error two and three.

Motion for Mistrial

In point of error four, appellant argues that the trial court erred in denying his motion for mistrial after he was linked to an extraneous offense during the guilt/innocense phase of trial. Morriesette testified that appellant left the scene of the robbery in a green van. Officer Guidry, in describing how he had come across the green van, initially stated that he found a vehicle that was reported stolen. The trial court sustained appellant s objection to Guidry s statement and instructed the jury to disregard it, but denied appellant s request for a mistrial. The issue before us is whether the trial court erred in refusing to grant appellant s request for a mistrial.

Mistrial is a remedy used only for highly prejudicial and incurable errors. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). A witness s reference to an extraneous offense can usually be cured by a prompt instruction to disregard. Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App. 1994). An instruction to disregard can be inadequate when the testimony given was clearly calculated to inflame the minds of the jury, or was of such damning character as to suggest it would be impossible to remove the harmful impression from the jury s mind. Id. (citing Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992)). We review the decision of the trial court to deny the request for a mistrial and will reverse only if we conclude the trial court abused its discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

Here, Officer Guidry was describing the process by which he found the green van believed to have been driven by appellant. His reference to finding a vehicle recorded as stolen did not appear to be clearly calculated to inflame the minds of the jury. The jury may have been able to make the link between the stolen vehicle and the green van believed to have been driven by appellant, but Guidry did not provide any details as to how the van was stolen or who had participated in stealing it. We conclude that any harm was cured by the instruction to disregard. Accordingly, we hold that the trial court did not abuse its discretion in denying appellant s request for a mistrial.

We overrule point of error four.

Sufficiency of the Evidence

In points of error five and six, appellant argues that the evidence was legally and factually insufficient to support his conviction because the State did not prove by credible evidence that appellant used or exhibited a firearm during the robbery. See Tex. Pen. Code. Ann. 29.03 (Vernon 1994). We note that section 29.03 allows an aggravated robbery conviction when a deadly weapon was used or exhibited, but does not require the use of a firearm. Id. A deadly weapon is defined as a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. 1.07(a)(17) (Vernon 1994).

The critical inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The inquiry does not require this Court to ask whether we believe that the evidence at the trial established guilt beyond reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct 2781, 2788-89 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997); Howley v. State, 943 S.W.2d 152, 155 (Tex. App. Houston [1st Dist.] 1997, no pet.).

Here, Morriesette testified that she saw appellant lift up his shirt to reveal the butt of a gun. She stated that her father owned guns during her childhood, she was familiar with what guns looked like, and she was certain that appellant revealed a gun to her. She described the handle of the gun as beige and curved. A firearm is a deadly weapon. Tex. Pen. Code Ann. 1.07(a)(17) (Vernon 1994).

We conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant used or exhibited a deadly weapon in the course of the robbery. Accordingly, we hold that the State s evidence was legally sufficient to support the conviction.

We overrule point of error five.

In reviewing factual sufficiency, we examine all of the evidence neutrally, and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000); see Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (quoting Stone v. State, 823 S.W.2d 375, 381 (Tex. App. Austin 1992, pet. ref d, untimely filed)).

In making his factual sufficiency challenge, appellant claims that the State s evidence was simply not credible. He contends that (1) Morriesette was unable to tell if the gun allegedly used by appellant was a revolver or an automatic, (2) there was no physical evidence which corroborated Morriesette s testimony, and (3) the conduct of the police suggested that handguns were not typically equipped with beige-colored handles.

Appellant does not direct us to any authority that would require Morriesette s testimony to be corroborated. When asked by the State whether appellant s gun was an automatic or a revolver, Morriesette stated, I want to say a revolver. I don t know if it was an automatic. She was previously asked by the State what the difference was between an automatic and a revolver, and she stated that revolvers have a spinner that the shells are put in. Having only seen the handle of the gun, Morriesette was not sure what kind of gun it was, but she did state that she was certain that appellant had a gun. As for the conduct of the police, even if their conduct did indicate that handguns are rarely equipped with beige-colored handles, we conclude that this evidence does not greatly outweigh the evidence of the State. The weight to be given to contradictory evidence is within the sole province of the jury, and we will give deference to such a finding. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).

We conclude that the evidence that appellant used or exhibited a deadly weapon during the course of the robbery was not so weak as to undermine confidence in the jury s decision. Accordingly, we hold that the evidence was not factually insufficient.

We overrule point of error six.

Evidence of Extraneous Offenses in the Punishment PhaseIn point of error seven, appellant argues that the trial court erred in allowing the State, during the punishment phase, to introduce into evidence parts of his statement regarding his commission of extraneous offenses, because the State failed to support the statement with corroborating evidence. Appellant contends that, without corroborating evidence, the State did not establish the corpus delicti of the extraneous offenses.

This court has previously held that the State need not present corroborating evidence to support a defendant s admissions to extraneous offenses during the punishment phase of a trial. Padron v. State, 988 S.W.2d 344, 346 (Tex. App. Houston [1st Dist.] 1999, no pet.). The State is only required to prove extraneous offenses beyond a reasonable doubt. Id. We are unwilling to depart from our earlier precedent and, accordingly, hold that the trial court did not err in allowing the State, during the punishment phase, to introduce appellant s admissions of extraneous offenses.

We overrule point of error seven.Conclusion

We affirm the trial court s judgment.

Sherry Radack

Justice

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.4.