Louis Edward Thomas, Jr. v. The State of Texas--Appeal from 262nd District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-98-167-CR

LOUIS EDWARD THOMAS, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 262nd District Court

Harris County, Texas

Trial Court # 742,633

O P I N I O N

Appellant Thomas appeals his conviction for aggravated robbery, for which he was sentenced to 30 years in the Texas Department of Criminal Justice Institutional Division.

Three black males, wearing masks, caps, and gloves, and armed with guns, on September 27, 1996, at 9:00 a.m., robbed Cash America Pawn in Houston of money, jewelry, guns, a store security videotape and checks, of the value of a quarter of a million dollars. The robbers broke the display cases, emptied items from them into bags, and emptied the cash drawers. They made the three employees present lie down on the floor; hit the manager in the head with a handgun; and threatened to kill all three of them if they got up.

Appellant Thomas was indicted for this aggravated robbery (enhanced by a prior felony conviction), and at trial he was convicted by a jury. He elected to have the judge assess punishment who, after the punishment hearing, assessed and sentenced Appellant to 30 years in prison.

Appellant appeals on four points of error.

Point 1: "The trial court erred in overruling Appellant's challenge for cause of venire member #39, Joseph Villareal, because of his inability to afford an accused his Fifth Amendment protections.

During jury selection venire member #39 stated that if a defendant failed to testify he might use this fact to "push him over" if the state had not quite proved its case beyond a reasonable doubt.

The defense challenged venire member #39 based on his response concerning a Fifth Amendment right not to testify. The trial court denied the motion to challenge. Defense counsel then informed the court he was forced to use a strike on #39 because the court denied his motion to challenge, and that he would have used that strike on #44. Defense counsel did not ask the court for another strike.

To preserve error concerning the denial of a challenge for cause, the defendant must exhaust all peremptory challenges, ask for more, be refused, and point out an objectionable juror who was seated. Dowthitt v. State, 931 S.W.2d 244, 251 (Tex. Crim. App. 1996); Garcia v. State, 887 S.W.2d 846, 852, (Tex. Crim. App. 1994).

Appellant has failed to preserve error.

Point 1 is overruled.

Point 2: "The trial court erred in overruling defense counsel's objection to the prosecutor's non-relevant cross-examination of Appellant, and interjection of extremely damaging statements."

Officer Sherrance testified that he was given the name of "T" as a suspect in this case by an anonymous telephone caller, and from this call he developed the name of Terrance Mosely. He also testified concerning the nickname "T-Moe." He further testified that Terrance Mosely was captured a week later in the course of committing a robbery.

Appellant testified and denied that he had committed the robbery. On cross-examination of Appellant the prosecutor asked him if he knew "T-Moe" to which Appellant answered, "No." The prosecutor then asked Appellant if he knew Terrance Roberts, to which Appellant answered, "Yes." Defense counsel objected on the ground of relevance. The court then asked, "What's the relevance of Terrance Roberts? , to which the prosecutor replied, "T-Moe, Terrance Roberts and Terrance Mosely are all the same people." The court stated, "Go ahead."

Appellant's objection to whether he knew Terrance Roberts was based on relevance (Rules 401 and 402), but his complaint in this court is based on Rule 403, probative value outweighed by unfair prejudice. And, as noted, Appellant did not object to the statement of the prosecutor that T-Moe, Terrance Roberts and Terrance Mosely were all the same people.

In order for an issue to be preserved on appeal, there must be a timely objection which specifically states the legal basis for the objection. An objection stating one legal basis cannot be used to support a different legal theory on appeal. Rezak v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977).

Appellant has not preserved error.

Point 2 is overruled.

Point 3: "The evidence is legally insufficient to support a conviction for aggravated robbery."

When reviewing the legal sufficiency of the evidence, we must examine all of evidence to determine if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Criner v. State, 860 S.W.2d 84, 86 (Tex. Crim. App. 1992). In making this examination we view the evidence in the light most favorable to the verdict. Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1987). If there is any evidence that could establish guilt beyond a reasonable doubt, the conviction is not subject to reversal. Anderson v. State, 871 S.W.2d 900, 902 (Tex. App. Houston [1st Dist.] 1994, no pet.).

At 9:00 a.m. on September 27, 1996, Gilbert Trinidad, manager of Cash America Pawn, Oscar Salmeron, assistant manager, and Clerk Sherika White, were in the store. Three black males with masks, caps and gloves entered the store and pointed guns at the employees, ordered them to lie down on the floor, and proceeded to take cash, checks, jewelry, guns, and the store's security video tape.

Trinidad described the three robbers as: (1) the tallest over 6 feet; (2) a little bit shorter weighing about 190 pounds, and (3) the shortest about five feet eight and thin.

Wendy Wilson, a DPS employee, who gave road tests to driver-license applicants, was driving a block from the pawn shop about 9:00 a.m. on September 27, 1996, and observed a BMW, a green Toyota, and a tan van parked with four black males in their early 20's nearby. She passed by a second time and observed the Toyota but no men nearby. She drove by a third time and observed the van parked in the middle of the street on the left side of the Toyota. She observed one man in the driver's seat of the Toyota, one man going to the front passenger side, and one man transferring big black garbage bags from the van into the Toyota. Wilson described the man unloading the bags as a dark-skinned black male, early 20's, heavy set, 5'8" to 6'2". She saw the man's face. He jumped into the driver's side rear seat of the Toyota as it started off.

Wilson positively identified Appellant in court as the same person she observed loading bags into the Toyota and positively identified Appellant in a photo spread as being the same person loading the bags into the Toyota.

Officer Cates responded to the robbery of the Cash American Pawn shop. He recovered a fired bullet from inside a display case and a .380-Remington Peters fired cartridge from the floor. He testified the Remington Peters .380 cartridge case was fired from an automatic pistol.

Officer Cates observed the tan van parked a block and a minute away from Cash America Pawn. Inside the van he recovered a video tape, a loaded .380 Llama pistol with one unfired cartridge in the chamber and five unfired cartridges in the clip, jewelry, and a ball cap. Officer Cates testified the cartridge case recovered from the pawn shop could have been fired from the gun found in the van. White cloth gloves were also recovered from the van.

Officer Sherrance testified he received an anonymous telephone call from an informant who gave him three names of possible suspects, one of whom was Appellant.

Immediately after the robbery, Wilson observed Appellant within one block and one minute from the scene of the robbery transferring black plastic bags from the tan van to the Toyota. Appellant and his companions had been seen earlier that same morning near the Toyota and the van. Wilson positively identified Appellant in court, as well as from a photo spread earlier as the transferor of the bags from the van to the Toyota. Property stolen in the robbery was recovered from inside of the van.

After viewing the evidence in the light most favorable to the prosecution we hold that any rational trier of fact could have found that Appellant committed the aggravated robbery beyond a reasonable doubt.

Point 3 is overruled.

Point 4: "The evidence is factually insufficient to support a conviction for aggravated robbery."

In reviewing a factual insufficiency challenge, we view all the evidence without the prism of "in the light most favorable to the prosecution." Clewis v. State, 933 S.W.2d 126, 139 (Tex. Crim. App. 1996). Thus the reviewing court may consider the testimony of defense witnesses and any alternative hypothesis raised by the evidence. Clewis at 135. However, even under a factual sufficiency analysis the reviewing court is not authorized to substitute its judgment for that of the factfinder. Clewis at 133. The reviewing court sets aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis at 135; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

Appellant testified and denied committing the aggravated robbery, but was unable to say where he was at the time of the robbery. Wilson positively identified Appellant as the same person she saw transferring bags from the van to the Toyota immediately after and one minute from the scene of the robbery. The van contained property taken in the robbery.

After viewing all of the evidence, we conclude that verdict of guilty is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Point 4 is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed February 3, 1999

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