Kevin Eugene Armstrong v. The State of Texas--Appeal from 204th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-00-075-CR

KEVIN EUGENE ARMSTRONG,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 204th District Court

Dallas County, Texas

Trial Court # F99-00667

O P I N I O N

Appellant Armstrong appeals from his conviction for aggravated robbery (enhanced by one prior felony conviction), for which he was sentenced to 30 years in the Texas Department of Criminal Justice - Institutional Division.

At about 9:30 p.m. on October 20, 1998, appellant and two other men went to the house of Zumela Davila and held her, her two children and her nephew at gunpoint. Zumela s husband had been gone for only minutes when appellant, an acquaintance, knocked on her front door and identified himself. Zumela opened the door to find appellant pointing a gun at her. Appellant ordered Zumela and her two children onto the living room floor and demanded she tell him where the money was located. Zumela denied knowledge of any money. Appellant and his cohorts searched the house. During the search, they discovered Zumela s nephew showering in the bathroom. They ordered him to the floor and continued their search. Appellant found some jewelry in the bedroom, and one of the other men took several bottles of liquor from the kitchen. The three left. Just a few feet outside the front door, appellant told one of the men to go back inside and take care of Zumela because she could identify him. Hearing this, Zumela immediately shut and locked the door and telephoned for help. The police arrived within minutes and later arrested appellant based on Zumela s identification.

Appellant was indicted for aggravated robbery. A jury found appellant guilty. The court found the enhancement True and assessed punishment at 30 years in prison.

Appellant by other counsel appeals on three issues.

Issue 1: The evidence is factually insufficient to sustain appellant s conviction.

When conducting a factual insufficiency review, this court determines whether a neutral review of all the evidence, both for and against the verdict, demonstrates: 1) that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or 2) that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); Clewis v. State, 922 S.W.2d 126, 134-5 (Tex. Crim. App. 1996).

Since appellant presented no contrary proof, his sufficiency challenge is limited to the strength of the State s case against him. Specifically, he contends the evidence is not strong enough to support his conviction because Zumela s testimony was incredible and unbelievable.

Unless the record clearly calls for a different result, the reviewing court must defer to the jury s credibility determination. The record here reflects no manifest injustice in the jury s assessment of Zumela s credibility.

Zumela testified that appellant, whom she knew came to her home with two other men and held her, her two children and her nephew at gunpoint and demanded money. When Zumela said there was no money, appellant and his cohorts ransacked the home and took jewelry and several bottles of liquor. Then before fleeing, appellant ordered one of the men to kill Zumela.

Appellant contends Zumela testified falsely against him because he owed her husband money. Further, he asserts that a previous theft conviction of Zumela and inconsistencies in her testimony render her testimony unbelievable.

Although the record shows appellant owed Zumela s husband money, this does not demand the conclusion that this debt motivated Zumela to make a false accusation. The record does show that Zumela was convicted of misdemeanor theft in 1989 when she was seventeen years old. Again, as the fact finder, the jury was free to believe that Zumela was still testifying truthfully as to the robbery.

Appellant maintains her testimony is inconsistent with her statements to the police because she did not mention that the robbers wore gloves or that one of the gunmen had a potato stuck to the end of his gun. Zumela did, however, tell the detective about the gloves at the scene of the robbery, and explained that when she prepared her written statement she did not include every detail, but only what was on her mind at the time.

There is other evidence that corroborates Zumela s account of the robbery. The officer who responded to the scene immediately after the robbery testified Zumela was very distraught, excited, crying and fearful. He also testified the house was in disarray and appeared to have been rifled.

The jury was the sole judge of the facts, and of the credibility of the witnesses, and was thus free to find Zumela credible. The record does not call for a different conclusion. The evidence is sufficient to support the verdict. Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997).

Issue 1 is overruled.

Issue 2: The trial court erred by overruling appellant s objection to Detective Meek s cumulative hearsay testimony.

Specifically, appellant complains of the trial court s overruling his objection to the detective s testimony telling how Zumela described the guns that the robbers carried.

Preservation of a complaint for appellate review requires a timely and specific trial objection. Tex. R. App. P. 33.1. An objection should be made as soon as the ground for objection becomes apparent. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). If a question clearly calls for an objectionable response, an objection should be made before the witness responds. Id. An objection made after the witness has answered and given the testimony comes too late to preserve error. Roise v. State, 7 S.W.3d 224, 240 (Tex. App. Austin 1999, pet. ref d); Angelo v. State, 977 S.W.2d 169, 177 (Tex. App. Austin 1998, pet. ref d).

Appellant did not object until Detective Meek had answered three questions about how Zumela had described the guns the robbers carried. Appellant should have objected after the first question. Instead, he waited three questions and answers later to do so. Appellant has forfeited his complaint regarding the admission of the detective s testimony.

More importantly, however, the testimony was admissible as an exception to the hearsay rule, as a statement relating to a startling event made while Zumela was under the stress caused by the event. Tex. R. App. P. 803(2).

Finally, if error, the matter was harmless. The evidence affected no substantial right of appellant. Tex. R. App. P. 44.1(b). Specifically, the matter testified to by the detective was proven by the other competent and unobjected to testimony of Zumela. Nicholas v. State, 502 S.W.2d 169, 174 (Tex. Crim. App. 1973).

Issue 2 is overruled.

Issue 3: The trial court erred by overruling appellant s objection to the prosecutor s improper jury argument.

In closing argument, the prosecutor stated:

Now is the time for the good citizens of Dallas County to stand up for the rights of our victims. O.K. That s what were going to ask.

Defense Counsel:Objection. It s improper argument.

Court: Overruled.

Prosecutor: That s what we re going to ask you to do as fellow citizens of Dallas County. Stand up for the victims and tell this individual right here, no sir. It s not going to go on. Not in our county. That s what your verdict of guilty of aggravated assault is going to do.

Appellant contends that the argument referred to the public s desire or expectation of a conviction.

First, appellant forfeited his complaint for appellate review because preservation of a complaint requires a timely and specific trial objection. Tex. R. App. P. 33.1. Appellant made only a general objection, thus forfeiting his complaint. Whittington v. State, 580 S.W.2d 845, 847 (Tex. Crim. App. 1979).

More importantly, if appellant s belief was that the argument was that the community demands or expects a guilty verdict is incorrect. The argument was a plea for law enforcement which is one of the authorized areas of argument. Rocha v. State, 16 S.W.3d 1, 21 (Tex. Crim. Ap. 2000). Spaulding v. State, 656 S.W.2d 538, 540 (Tex. App. Corpus Christi 1983, pet. ref d).

Issue 3 is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Gray, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed January 10, 2001

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