Tony Larnard Huery v. The State of Texas--Appeal from 208th District Court of Harris County

Opinion issued July 27, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01 05 00543 CR

TONY LARNARD HUERY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 953884

MEMORANDUM OPINION

Tony Larnard Huery, appellant, was charged with aggravated robbery, enhanced with two prior felony convictions. Tex. Pen. Code Ann. 12.42 (Vernon Supp. 2005), 29.03 (Vernon 2003). Appellant pleaded not guilty to the charge, and not true to the enhancements. The jury found appellant guilty, found the enhancements true, and assessed punishment at 50 years confinement.

In four points of error, appellant argues that (1) the evidence is legally and factually insufficient to establish that the complainant had a greater right of possession in the property and appellant appropriated the property without the owner s effective consent and that the trial court erred by not declaring a mistrial (2) when two police officers testified about extraneous offenses and (3) when the prosecutor made improper jury arguments during the State s closing argument in the punishment phase.

We affirm.

Background

The facts pertinent to this appeal are not in dispute. On May 15, 2003, appellant and two men entered a pawnshop. Atricia Sharp, complainant, and Pamela Sanchez were working at the pawnshop that day. After a brief conversation with Sharp, appellant pulled out a gun and said, This is a robbery. Appellant and his accomplices handcuffed Sharp and Sanchez, placed them in a walk-in safe along with three customers, and stole various items from the pawn shop.

At trial, the State questioned Officer M. R. Burdick about an investigation that led to the recovery of the gun appellant used in the May 15 robbery. Officer Burdick stated that the investigation entailed a bunch of guys that were involved in pawnshop robberies. The trial court sustained appellant s objection and instructed the jury to disregard the statement, but denied appellant s motion for mistrial.

Later, while Officer John Bonnette testified about his involvement in the investigation, he stated, [I]n this particular instance, this was one of a series of robberies that were committed by the same group of highjackers, [sic] robbery suspects. The trial court sustained appellant s objection and instructed the jury to disregard the statement, but denied appellant s motion for mistrial.

During the State s closing arguments in the punishment phase, it stated that appellant is a capital murder waiting to happen. Appellant made no objections to this statement. Later, the State stated, What you have here, a guy who has been convicted multiple times of felony level offenses. We didn t bring you any misdemeanors; we only brought you felonies. The trial court sustained appellant s objection to facts outside the record and instructed the jury to disregard the statement, but denied appellant s motion for mistrial.

Legal and Factual Sufficiency

In his first point of error, appellant argues that the evidence is legally and factually insufficient to establish the complainant had a greater right of possession in the property and appellant appropriated the property without the owner s effective consent.

A. Standard of Review

A legal-sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App. Houston [1st Dist.] 1997, no pet.). Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

In a factual-sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)). Our evaluation may not intrude upon the fact-finder s role as the sole judge of the weight and credibility accorded any witness s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The fact-finder alone determines what weight to place on contradictory testimonial evidence, as it depends on the fact-finder s evaluation of credibility and demeanor. Id. at 408. In conducting a factual-sufficiency review, we must discuss the evidence that, according to appellant, most undermines the jury s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

B. Analysis

The Texas Penal Code s definition of owner includes a person who has a greater right of possession of the property than the actor. Tex. Pen. Code Ann. 1.07(a)(35)(A) (Vernon Supp. 2005). Possession is defined as actual care, custody, control, or management. Tex. Pen. Code Ann. 1.07(a)(39). Proof of ownership can be established by circumstantial evidence. Jordan v. State, 707 S.W.2d 641, 644 (Tex. Crim. App. 1986).

An allegation of ownership may be alleged in either the actual owner or a special owner. Tex. Code Crim. Proc. Ann. art. 21.08 (Vernon 1989); Freeman v. State, 707 S.W.2d 597, 603 (Tex. Crim. App. 1986). A special owner is an individual who is in custody or control of property belonging to another person. Harrell v. State, 852 S.W.2d 521, 523 (Tex. Crim. App. 1993). When a business entity is the owner of the property that has been stolen, it is the preferable pleading practice to allege special ownership in a natural person acting for the corporation. Simpson v. State, 648 S.W.2d 1, 2 (Tex. Crim. App. 1983); Harris v. State, 846 S.W.2d 960, 962 (Tex. App. Houston [1st Dist.] 1993, pet. ref d).

Sharp testified that, at the time of the incident, she was an employee of EZ Pawn, the business entity with legal custody of the property. As an employee, she had a greater right of possession over the property than appellant. Appellant points to the testimony of Sharp where, after she was asked if she had the greater right of possession of the property, she responded, No, because if they wanted it, they could take it. A review of the testimony shows, however, that Sharp s answer was based on confusion over the question. She subsequently stated that she was in control of the property and that she was in possession of it. A misunderstanding of legal terminology is not sufficient to create legal or factual insufficiency.

Appellant also argues that the evidence is legally and factually insufficient to establish that the property was taken without the owner s effective consent. However, appellant offers no citation to the record or legal basis for his argument. As the State points out, appellant pointed a pistol at Sharp and announced this [is] a robbery.

We hold that the evidence is legally and factually sufficient to establish that Sharp had a greater right of possession in the property and appellant appropriated the property without the owner s effective consent. We overrule appellant s first point of error.

Extraneous Offenses

In his second point of error, appellant argues that the trial court erred by not declaring a mistrial when two officers testified about extraneous offenses committed by appellant.

A. Standard of Review

The standard of review for a trial court s denial of a motion for mistrial is abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. See Sewell v. State, 696 S.W.2d 559, 560 (Tex. Crim. App. 1983). Thus, a trial court may properly exercise its discretion to declare a mistrial if a verdict of conviction could be reached, but would have to be reversed on appeal due to an obvious procedural error in the trial. Id. The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Hernandez v. State, 805 S.W.2d 409, 413 414 (Tex. Crim. App. 1990).

B. Analysis

While Officer Burdick was explaining the events leading up to the recovery of the pistol used in the robbery, he stated that the investigation entailed a bunch of guys that were involved in pawnshop robberies. Later, Officer Bonnette, when asked how he became involved in the investigation for the robbery, stated, [I]n this particular instance, this was one of a series of robberies that were committed by the same group of highjackers, [sic] robbery suspects. Appellant objected to both of these statements. The trial court sustained the objections and instructed the jury to disregard the statements but denied appellant s motions for mistrial.

Assuming without deciding that these statements constituted inadmissible evidence of extraneous offenses, because the trial court gave instructions to disregard the statements, we hold that the trial court did not abuse its discretion in denying the motions for mistrial. Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).

Moreover, the error is harmless due to the strong evidence establishing appellant s guilt. The evidence presented by the State included a surveillance videotape showing appellant robbing the pawn shop, a videotaped line-up including appellant where Sharp identified him, and in court identifications of appellant as the perpetrator by Sharp and a customer that was in the store at the time. None of this evidence was controverted. Appellant did not call any witnesses or present any other evidence. Because of the uncontroverted evidence establishing appellant s guilt, inadmissible evidence of extraneous offenses cannot be said to have harmed appellant.

We overrule appellant s second point of error.

Jury Arguments

In his third and fourth points of error, appellant argues that the State made two improper jury arguments in the punishment phase that require reversal.

A. Standard of Review

Permissible jury argument falls within one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) pleas for law enforcement; and (4) response to opposing counsel. Felder v. State, 848 S.W.2d 85, 94 95 (Tex. Crim. App. 1992). If we determine that the argument fell outside these four categories, we must then determine whether, in light of the record as a whole, there is a reasonable probability that the improper argument might have contributed to appellant s conviction or punishment. Orona v. State, 791 S.W.2d 125, 128 (Tex. Crim. App. 1990). Even if the argument exceeds the bounds of proper jury argument, reversible error occurs only when, in light of the record as a whole, the argument is extreme, manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Goldberg v. State, 95 S.W.3d 345, 388 (Tex. App. Houston [1st Dist.] 1994, pet. ref d).

B. Analysis

Appellant first complains of the State s remark that appellant was a capital murder waiting to happen. Appellant next complains of the State s saying [w]hat you have here, a guy who has been convicted multiple times of felony level offenses. We didn t bring you any misdemeanors; we only brought you felonies.

1. Capital Murder

Appellant has not preserved any error related to the first statement. A defendant s failure to object to improper jury arguments forfeits the right to complain about the argument on appeal. Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004). This is true even if the argument is manifestly improper. Id.

We overrule appellant s third point of error.

2. Misdemeanors

It appears that telling the jury that the State did not present any felonies was used to highlight appellant s felonies. It was not used to insert new facts into the record. We hold there was no error in the State s argument.

We overrule appellant s fourth point of error.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Jennings, Hanks, Higley.

Justice Jennings concurring in the judgment only.

Do not publish. See Tex. R. App. P. 47.2(b).