Dewain Maurice Austin v. The State of Texas--Appeal from 386th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00642-CR
Dewain Maurice AUSTIN,
Appellant
v.
The STATE of Texas,
Appellee
From the 386th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CR-3448
Honorable Laura Parker, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: May 2, 2007

 

AFFIRMED

 

Dewain Maurice Austin was convicted by a jury of aggravated robbery and sentenced to fifteen years imprisonment. On appeal, Austin contends that: (1) the evidence is legally and factually insufficient to support his conviction; and (2) the trial court erred in sustaining the State's objection to defense counsel's lingering-doubt argument during the punishment phase of trial. We affirm the trial court's judgment.

Background

On October 19, 2005, at approximately 9:30 p.m., Paul Weidner left his mother's home to walk to a nearby store to buy cigarettes. He took his wallet, cell phone, and about four dollars with him. To get to the store, he took a shortcut through a field that was located next to an apartment building ("the Springhill Apartments"). As he walked along a path that cut through the field, he noticed a man standing ahead of him facing the Springhill Apartments. He and the man exchanged greetings as he passed. Then, the man suddenly spun around and pointed a gun at Weidner's face. The man stood only a few feet away from Weidner, and the weapon, which appeared to Weidner to be a semi-automatic handgun, was within inches of Weidner's face. The man said, "Give me what you got." When Weidner stated that he did not have much to give, the man began cursing at Weidner and told him to take off his clothes from the waist down. Weidner did so. The man then told Weidner to turn around and get on his knees, which Weidner did. Weidner then began to plead for his life, and as he did so, he turned around toward the man. The man said, "Now I have to shoot you. You saw my face again." Weidner continued to beg the man not to kill him. The man told him that he would let him go if he ran toward the store and did not look back. He told Weidner that he would shoot him if he turned around. Weidner began to run toward the store but then turned around when he became upset about what had happened. As Weidner ran back toward where the robbery occurred, he saw the man go through a hole in a fence and run toward the Springhill Apartments. Weidner picked up his boxer shorts and shoes, which were still on the ground where he left them, and put them on. He ran home and called the police.

Officer Toby Burrows responded to Weidner's call within five minutes. Burrows testified that Weidner was in an excited, erratic state when Burrows arrived at the scene. Weidner described the man who robbed him as a black man dressed in black. Burrows' report reflected that Weidner stated that the man was left-handed, wore a black beanie, and had a dark complexion, a light build, and no facial hair. At trial, Weidner described his assailant as a black man but with a lighter complexion. He explained that his assailant was approximately five-feet-six-inches tall with an average build. He also stated that his assailant wore a black, hooded shirt and a black "beanie" or "do-rag" on his head under his hood. After speaking with Weidner, Burrows broadcasted Weidner's description of his assailant to other officers in the area. Based on the description, Burrows also informed other officers to investigate a specific apartment in the Springhill Apartments. Burrows' suspicion was based on an incident that occurred the night before at the Springhill Apartments in which he and other officers were patrolling in the area when they noticed that three black males wearing black, hooded sweatshirts ran when they saw the officers. One of the men ran into an apartment, and the other two continued on foot. After the men ran, Burrows heard a gunshot coming from their direction. Burrows told the other officers looking for Weidner's assailant to investigate the apartment into which one of the men had run.

Based on Burrows' suggestion, Officer Joe Gilliam investigated the apartment. Gilliam testified that a woman answered the door and that there were two males and another female in the apartment. Police later determined that the two males inside the apartment were Austin and his brother. Gilliam also found a black, hooded sweatshirt and a "do-rag" on the living room floor of the apartment. Austin and his brother were taken into custody. A detective brought Austin in front of Weidner and asked him if Austin was his assailant. Weidner immediately identified Austin as his assailant and noticed that Austin had changed his shirt since the robbery. The detective then brought Austin's brother in front of Weidner and asked Weidner if this man could possibly be his assailant. Weidner stated that Austin's brother was definitely not his assailant and that he had never seen the man before. The police arrested Austin. After a jury trial, Austin was convicted of aggravated robbery and sentenced to fifteen years in prison. This appeal followed.

Sufficiency Of The Evidence

In his first and second points of error, Austin contends that the evidence is legally and factually insufficient to support his conviction. Specifically, Austin challenges Weidner's identification of him as the assailant and asserts that the evidence is insufficient to establish that it was him and not someone else who committed the aggravated robbery. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000). The standard is the same for both direct and circumstantial evidence. Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex. Crim. App. 1984). In a factual sufficiency review, we consider all the evidence in a neutral light and reverse only if: (1) the evidence in support of the verdict is so weak as to make the verdict clearly wrong or manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)); Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We must not substitute our judgment for that of the fact-finder, who is the sole judge of the weight and credibility of the witness's testimony. Johnson, 23 S.W.3d at 7. The standard in a factual sufficiency review is the same for both direct and circumstantial evidence. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

Austin contends that the evidence that he committed the robbery is legally insufficient because Weidner's identification of him as the assailant is unreliable. Specifically, Austin argues that Weidner could not accurately identify his assailant because the field where the robbery occurred was dark, and Weidner was in a fearful and humiliated emotional state at the time of the robbery. The record shows that Weidner testified that the field itself was not lighted but that lighting from surrounding areas helped illuminate the field. He testified that the path where the robbery occurred was on the side of the field closest to the Springhill Apartments, and that the light coming from the apartments lit up the path. He testified that there was lighting in the parking lot of the Springhill Apartments as well as lighting on each of the individual apartments. There were also street lights on a nearby street and lights from a construction site on the opposite side of the field. He testified that only the middle of the field was dark. The State introduced photos of the area showing the locations of the lighting Weidner described. Officer Guzman, who responded to the robbery and had previously patrolled the field at night, also testified about the lighting in the area. He testified that he could see faces when he was in the field at night and that he "would assume anybody else would be able to also."

The record also shows that Weidner identified Austin as his assailant within an hour of the robbery and at trial. He testified that he looked directly at Austin during the robbery for three to four minutes before Austin made him kneel on the ground. He also turned around and looked at Austin again when he was pleading for his life. Once he turned around, Austin said: "Now I have to shoot you. You saw my face again." Weidner testified that Austin wore a black, hooded shirt and a "beanie" or "do-rag" on his head under the hood. He testified that Austin ran toward the Springhill Apartments after robbing him. Police later discovered Austin in one of the apartments. A black, hooded sweatshirt and a "do-rag" were also discovered on the floor of the apartment. Viewing the evidence in the light most favorable to the verdict, including the evidence that Weidner looked at Austin's face for several minutes during the robbery, that he identified Austin less than an hour after the robbery, that there were several lighting sources in the areas surrounding the field, and that police discovered Austin and a black, hooded sweatshirt and "do-rag" in an apartment complex toward which Weidner saw his assailant run, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Austin committed the aggravated robbery. Accordingly, we hold that the evidence is legally sufficient to support Austin's conviction.

Austin also challenges the factual sufficiency of the evidence establishing that he committed the aggravated robbery. Austin testified that he did not commit the robbery and that he was watching movies at a friend's apartment at the time of the robbery. At trial, Austin could not remember the names of the movies he watched that night. Daphne Hampton, the woman who resided in the apartment in which Austin was discovered on the night of the robbery, testified that Austin was in her apartment watching movies for several hours before the police knocked on the door that night. On cross-examination, Hampton denied telling the prosecutor in an earlier interview that Austin left her apartment when it got dark and did not return until 10:00 p.m. Hampton admitted that at the time of the robbery, she had a relationship with Austin's brother, and her sister had a relationship with Austin. As previously addressed, the State presented evidence that light from surrounding areas illuminated the field where the robbery occurred, that Weidner looked at Austin's face for several minutes during the robbery, that Weidner identified Austin less than an hour after the robbery, and that police discovered Austin and a black, hooded sweatshirt and "do-rag" in Hampton's apartment after the robbery. Although Austin presented evidence that he was not the assailant, we cannot conclude that the evidence that he was the assailant is so weak as to make the verdict clearly wrong or manifestly unjust, or that the verdict is against the great weight and preponderance of the evidence. Thus, we hold that the evidence is factually sufficient to support Austin's conviction, and we overrule his second point of error.

Punishment Phase

In his third point of error, Austin contends that the trial court erred in sustaining the State's objection to defense counsel's argument regarding lingering doubt during the punishment phase of trial. Austin argues that the trial court's denial of his right to argue about the jury's lingering doubt amounted to a deprivation of his right to counsel. During his argument, defense counsel asked the jury to consider probation based on the fact that it took the jury a long time to reach a guilty verdict. Defense counsel also stated: "I know that at least some of you had some serious questions about this case. You may have a lingering doubt. You may as you sit here today." The State objected to defense counsel's argument, and the trial court sustained the objection. Later, after the jury began its deliberations, defense counsel addressed the issue with the court again in the following exchange:

Defense: Judge, may I make a record? I'm not sure exactly how to do this in light of the question. My intention was to make a motion for a mistrial, based on my being not able to argue residual doubt. And my intention was to - for that were to be denied to make an offer of proof. However, I believe that puts my client in an untenable position of having to - if the Court were to grant that to lose the benefit - it's my position that the remedy of the new trial is not - I - is not an adequate legal remedy. I just want to put that into the record. I'm not making a motion for mistrial for that reason.

 

Court: You wanted to make it earlier?

Defense: No. No. I - my belief is that I'm required to preserve error to make a motion for a mistrial and to put what I would have argued into the record. It's -

Court: Were you denied an opportunity to argue it?

Defense: No. No, Judge.

Court: I'm confused about what you're talking about.

State: I think to protect the record for himself later on, in case he got appealed and someone else was doing the appeal and the Court read it, yes, he considered the idea of making a motion for mistrial but decided it was not i[n] the best interests of my client.

Defense: That's correct.

Court: Mistrial based on what?

Defense: Based on the lack of - I believe the law is that the defense is allowed to argue residual doubt, especially in a case where the jury is out so long on guilt. That's my understanding of the Texas law. I could be wrong.

Court: Okay.

Defense: But my - the defense position is that the remedy afforded us - and this is an issue for the - is not - we don't want a mistrial because we like our jury. However, a mistrial, if the Court were to grant that relief, would put us in a worse position than we would be if we had requested it. I just wanted to put that in the record.

Court: You're not asking me to pass judgment on that?

Defense: No, I'm not.

 

To present a complaint for appellate review, a party must make a timely request, objection, or motion in the trial court and obtain a ruling. See Tex. R. App. P. 33.1(a). Specifically, to preserve a complaint that the trial court erred in sustaining an objection to a party's argument, the party must except to the ruling, move for a mistrial, or present a bill of exception. See Price v. State, 870 S.W.2d 205, 209 (Tex. App.-Fort Worth 1994), aff'd, 887 S.W.2d 949 (Tex. Crim. App. 1994). Austin did none of those things here. In fact, defense counsel specifically told the court that he did not want to make a motion for a mistrial and that he was not asking the court to make a ruling. One of the purposes of the requirement that complaints be raised in the trial court is that such a requirement ensures that the trial court will have an opportunity to prevent or correct errors, thereby eliminating the need for a costly and time-consuming appeal and retrial. See Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006). Here, even if the trial court erred in sustaining the State's objection to defense counsel's argument, Austin did not give the trial court an opportunity to correct the error. Because Austin did not make a proper request or obtain a ruling, he failed to preserve the issue for appeal. See Tex. R. App. P. 33.1(a); Muniz v. State, 851 S.W.2d 238, 255 (Tex. Crim. App. 1993) (even an error involving constitutional rights can be waived by failing to properly preserve error in the trial court). We overrule Austin's third point of error.

Conclusion

We affirm the trial court's judgment.

Alma L. L pez, Chief Justice

Do Not Publish