James Milton Blua v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-96-107-CR

JAMES MILTON BLUA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 13,917

O P I N I O N

Appellant James Milton Blua filed a motion for rehearing of this cause on May 16, 1997. We withdraw our opinion and judgment of April 16 and substitute the following to clarify the issues raised in Blua s motion. We overrule the motion for rehearing.

A jury convicted Appellant James Milton Blua of the offense of aggravated robbery. See Tex. Penal Code Ann. 29.03(a)(2) (Vernon 1994). The jury sentenced him to fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice.

Blua brings this appeal presenting two points of error in which he complains that: (1) the court erred in admitting a copy of a photographic lineup in evidence; and (2) the evidence is factually insufficient to support his conviction. We will affirm the judgment.

FACTUAL BACKGROUND

The record reflects that Stacy Evans was the cashier on duty when Blua allegedly robbed the A-Stop convenience store in Copperas Cove. The robbery occurred at about 9:00 in the evening on June 4, 1995. Evans identified Blua as the person who held a revolver on her and demanded the money from the cash register. She recalled that he wore a light striped shirt that night, that he was about five feet, six inches tall, and that he had a burr haircut and acne scars on the bottom half of his face. When Evans talked to the police officers that evening, she told them the robber wore a black t-shirt.

Darlene Coughlin was purchasing a soft drink from Evans when the robber entered. As she sat in her car, she hesitated before leaving. She saw an encounter at the cash register but did not see the suspect display a gun. Coughlin identified Blua as the person she saw in the store that evening. She recalled that he wore a black t-shirt and stood about six feet tall. Coughlin told police officers that Blua had a burr haircut.

Blua offered evidence to support an alibi defense. He presented the testimony of a co-worker, a friend, and his wife in an effort to show that he was working at a carnival in Georgetown on the night of the robbery.

Bruce Smolen, Jr. testified that he worked with Blua and Blua s wife, Michelle, at a carnival operated by Crabtree Amusements. Smolen saw Blua at the carnival in Georgetown on June 4. He first saw him around 3:00 in the afternoon. He testified that Blua worked on the Himalaya ride the entire evening from 4:00 until the carnival closed due to rain sometime between 9:00 and 9:30. Smolen testified that Blua and Michelle left Georgetown around 9:30 that night.

Michelle testified that Blua and she both worked with the carnival. They provided underhand help for the carnival, meaning they were paid in cash and not listed as employees of the carnival. The Bluas and their daughter left Copperas Cove around noon on June 4 to go to work at the carnival in Georgetown. Because the carnival was closed when they arrived at 1:00, they spent most of the afternoon with other carnival workers at the cliffs, a swimming area outside Georgetown. They returned to the carnival at 5:00 or 6:00 in the evening. Michelle could not work that night because she could not find a baby-sitter to care for their daughter. Blua did not receive a work assignment until 8:00. He worked about an hour at the Himalaya ride. According to Michelle, they left Georgetown between 9:15 and 9:30 and arrived in Copperas Cove at 10:15 that night.

Michelle also testified that Blua has a scar on the side of his scalp which is prominent when his hair is cut short.

Carla Shaw, an acquaintance of the Bluas, saw them preparing to leave their home in Copperas Cove shortly after noon on June 4.

Gatesville Police Chief Carol Duke testified that he had arrested Andrew Harrelson for a similar robbery committed in Gatesville on June 17. Harrelson displayed a chrome plated revolver to a store clerk and demanded money. After he got the money, Harrelson and his accomplice left the store in an [o]ld red Camaro. Harrelson is six fee tall. His accomplice is five feet, eleven inches tall.

Duke reviewed a photograph of Blua s black Camaro and concluded that it was newer and in much better shape than Harrelson s wreck. Evans viewed both Harrelson and Blua in the courtroom and unequivocally stated that Harrelson was not the person who robbed her on June 4. She did mistakenly believe that Harrelson s picture appeared in the photographic lineup from which she identified Blua.

In rebuttal, the State called Mike Loven, an investigator with the Copperas Cove Police Department. Loven testified that Evans was unable to identify Blua in the first photographic lineup he showed her. He attributed this to the fact that Blua s picture in the lineup was taken after Blua had been involved in an altercation which caused his eyes to be red and puffy. Loven presented a second lineup prepared by a Killeen police officer from which Evans was able to identify Blua as the robber. //

On cross-examination, Loven testified that he had confirmed through a carnival employee that Blua was at the Georgetown carnival the evening of June 4. Blua s counsel questioned Loven at length about discrepancies between Evans and Coughlin s initial descriptions of the suspect. He then asked Loven to produce copies of the lineups Evans viewed. Blua offered in evidence the lineup prepared by Loven from which Evans was unable to identify Blua.

The State offered the second lineup on redirect examination. Love testified that this lineup was prepared by a Killeen investigator. He stated that he used this particular lineup in his investigation of the case. Evans viewed this lineup, and positively identified Blua as the robber. Over Blua s objection, the court admitted the second lineup. Loven also testified that although Blua was seen at the carnival on June 4, the carnival had no record of his working there that day.

THE PHOTOGRAPHIC LINEUP

In his first point, Blua contends that the court erred in admitting a photographic lineup offered by the State which was not the original document, was improperly authenticated, alluded to facts not in evidence, and constituted hearsay. // The State responds that Blua has waived the right to complain of any alleged error resulting from the introduction of the lineup because he failed to make an adequate objection to the exhibit and because his trial objection differs from his appellate point.

Blua s counsel objected to the lineup thus:

Your honor, the defense would object to State s 1 on the premise, one, this officer didn t prepare it. It s not the original, it s a photocopy, and he cannot testify to how the information came to be contained therein. Therefore, we would object to its admission. It s not part of this original case, part of some other matter.

Rule 103(a)(1) of the Rules of Criminal Evidence provides that error in the admission of evidence will not require reversal unless the opponent of the evidence made a timely and specific objection, if the specific ground [of objection] was not apparent from the context[.] Tex. R. Crim. Evid. 103(a)(1). Similarly, Rule 52(a) of the Rules of Appellate Procedure provides that we will not consider a complaint in the absence of a timely and specific objection, if the specific grounds [are] not apparent from the context. Tex. R. App. P. 52(a). These rules are a codification of the case law on procedural default in effect when the rules were adopted. See Lankston v. State, 827 S.W.2d 907,, 908 (Tex. Crim. App. 1992).

The court in Lankston commented on the required specificity of an objection as follows:

The standards of procedural default . . . are not to be implemented by splitting hairs in thee appellate courts. As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Of course, when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost. But otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.

Lankston, 827 S.W.2d at 908.

In addition to the requirement that the opponent of the evidence make a timely and specific objection, his appellate point of error must correspond to his trial objection. Broxton v. State, 909 S.W.2d 912,918 (Tex. Crim. App. 1995). If the appellate point does not correspond to the objection stated at trial, the appellant waives the right to complain of any alleged error arising from the admission of the evidence. See id.

Rule 74(f) of the Rules of Appellate Procedure requires counsel to include in their brief such discussion of . . . the authorities relied upon as may be requisite to maintain the point at issue. The failure to adequately brief the argument and authority to support a particular point of error waives the error alleged. Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995), cert. denied, _____U.S.____, 117 S. Ct. 88, 136 L. Ed. 2d 44 (1996). Nevertheless, we apply a liberal construction to the briefing requirements. Tex. R. App. P. 74(p). Substantial compliance with the briefing requirements will suffice to avoid waiver. Id. Because we find some compliance, we review Blua s claims in the interest of justice.

Blua presents four reasons that the lineup was improperly admitted. He contends:

the exhibit introduced is not the original lineup;

the lineup was not prepared by the sponsoring witness;

the lineup alluded to facts . . . not in evidence ; and

the lineup is inadmissible hearsay.

No matter how generously we construe Blua s objection, it does not complain of a hearsay violation. See Tex. R. Crim. Evid. 801. Thus, Blua has waived the right to argue that the lineup was admitted in violation of the hearsay rule. Broxton, 907 S.W.2d at 918. However, from the context in which it was made, we construe the objection stated to be adequate to inform the court that he objected to the admission of the lineup because it was not the original, because it was improperly authenticated, and because it alludes to facts not in evidence. See Tex. R. Crim. Evid. 901, 1002.

Blua presents no argument or authority to support his claim that the admission of a duplicate of the lineup was error. Neither does he provide argument or authority to support his objection that the lineup alludes to facts not in evidence. Thus, he has waived these complaints. Lawton, 913 S.W.2d at 558. We will consider only his complaint that the exhibit was improperly authenticated.

A photographic lineup is a form of demonstrative evidence. See Dubbs v. State, 143 Tex. Crim. 82, 157 S.W.2d 643, 646 (1942) ( photographs are a species of demonstrative evidence ). Demonstrative evidence is admissible if it is relevant. Simmons v. State, 622 S.W.2d 111, 113 (Tex. Crim. App. 1981); Vollbaum v. State, 833 S.W.2d 652, 657 (Tex. App. Waco 1992, pet. ref d). Evidence is relevant when it has any tendency to make the existence of a fact of consequence more or less probable. Tex. R. Crim. Evid. 401.

Demonstrative evidence is properly authenticated when a witness with personal knowledge testifies that the item is what its proponent claims it to be. Vollbaum, 833 S.W.2d at 657; Tex. R. Crim. Evid. 901(a). Photographic evidence need not be authenticated by the actual photographer. Hughes v. State, 878 S.W.2d 142, 155 (Tex. Crim. App. 1992); DeLuna v. State, 711 S.W.2d 44, 46 (Tex. Crim. App. 1986).

We will not reverse a court s decision to admit demonstrative evidence absent an abuse of discretion. Vollbaum, 833 S.W.2d at 657. We will reverse that decision only if we conclude that it lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (on rehearing).

The photographic lineup was relevant to prove Blua s identity. Loven testified that the exhibit in question was a photocopy of the lineup which Evans viewed. We find this testimony sufficient to establish that the exhibit is what the State claimed it to be. Tex. R. Crim. Evid. 901(a). We cannot say that the court s decision to admit the lineup lies outside the zone of reasonable disagreement. Thus, we overrule Blua s first point.

FACTUAL SUFFICIENCY OF THE EVIDENCE

Blua alleges in his second point that the evidence is factually insufficient to disprove his alibi defense. We construe this to be a complaint that the evidence is factually insufficient to prove that he committed the offense alleged. //

When presented with a factual insufficiency claim, we discard the prism of the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We reverse only if [the verdict] is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

We consider all the evidence in the record related to the contested issue, not just the evidence which supports the verdict. Jones v. State, No. 72,026, slip op. at 4 (Tex. Crim. App. Dec. 18, 1996). We review the evidence tending to prove the issue, and compare [] it to the evidence which tends to disprove that [issue]. Id. We give appropriate deference to the jury s decision and do not substitute our judgment for theirs. Clewis, 922 S.W.2d at 135. We do not set aside the verdict merely because [we] feel that a different result is more reasonable. Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 146, 149 (Tex. 1986)).

The record reflects the following facts which tend to support the jury s determination that Blua was present and committed the offense alleged:

Evans and Coughlin identified him in photographic lineups as the robber;

Evans initial description of Blua to the police and Coughlin s testimony both described him as wearing a black t-shirt when he committed the robbery;

Evans identified him in court as the robber and unequivocally stated that Andrew Harrelson was not the person who robbed her;

Coughlin identified him in court as the robber;

Evans and Coughlin both described the robber to the police and in court as having a burr haircut, and Michelle confirmed that Blua s hair was cut really short during the summer of 1995;

Duke testified that Blua s black Camaro was not the same Camaro with which Harrelson committed his robbery;

Blua s alibi witnesses consisted of a co-worker, a friend, and his wife; //

Smolen and Michelle gave inconsistent versions of the events of June 4; // and

carnival records do not reflect Blua s employment at the carnival on the night of the robbery.

Other evidence in the record tends to support Blua s alibi:

Evans could not identify Blua from the initial lineup she viewed;

Evans testified that Blua wore a light striped shirt, contrary to her initial description of Blua s shirt as a black t-shirt;

Neither Evans nor Coughllin saw a scar on the side of the robber s head;

Evans and Coughlin are friends and are the only witnesses to the crime; //

Andrew Harrelson looks similar to Blua and committed a similar robbery in Gatesville;

Evans mistakenly believed that Harrelson s picture was in the lineup from which she identified Blua;

the robbery occurred at 9:00 at night on June 4;

Michelle testified that the Bluas left Copperas Cove around noon and went to Georgetown;

according to Michelle, the Bluas spent the entire afternoon and evening in Georgetown either at the cliffs or at the carnival;

Michelle testified that they did not leave Georgetown until 9:15 or 9:30 that night and arrived back in Copperas Cove at 10:15;

Shaw confirmed Michelle s testimony that the Bluas left Copperas Cove around noon that day;

Smolen testified that Blua was at the carnival the entire evening and worked the Himalaya ride that night until 9:00 or 9:15; and

Loven confirmed that Blua was at the carnival on June 4.

We must give deference to the jury s conclusions regarding the weight and credibility of the evidence. Clewis, 922 S.W.2d at 133. After reviewing the entire record, we conclude that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 134; Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d) (evidence factually sufficient to overcome defendant s alibi). Thus, the evidence is factually sufficient to support the verdict. We overrule Blua s second point.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed June 4, 1997

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