WILLIE CHARLES HICKS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued April 11, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01120-CR
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WILLIE CHARLES HICKS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F05-57894-JI
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OPINION
Before Justices O'Neill, Lang-Miers, and Mazzant
Opinion By Justice Mazzant
        Willie Charles Hicks appeals his conviction for aggravated robbery.   See Footnote 1  In four issues, he alleges legal insufficiency, improper jury argument, and trial court error in allowing the indictment to be amended on the day of trial. We affirm the trial court's judgment.
 
legal sufficiency
        In his first issue, appellant alleges the evidence is legally insufficient because there is no evidence he had the intent to commit theft.
        On the evening of August 24, 2005, between 6:00 and 7:30 p.m., Cephas Northcutt, Jr. was working as an armed security guard at an Autozone store on Hatcher Street in Dallas, Texas. His attention was first drawn to appellant because appellant was “talking loud” and “cursing” as he talked to one of the employees of the store. Business was “kind of slow” for that time of day. Later, Northcutt noticed appellant walking up and down the aisles of the store. When Northcutt next saw appellant, he was standing at the end of aisle six, where various electronic merchandise is displayed, “stuffing stuff from aisle six . . . down into his shorts.” Northcutt approached appellant and asked
appellant to follow him. Appellant said he did not have the time and walked away. As he walked away, he “started throwing whatever he had in his pockets and in his shorts . . . out into the floors.” Concerned appellant would leave the store, Northcutt, nicknamed “Big Dog,” grabbed appellant around the waist, picked him up, and carried him into the manager's office.
        Carlos Love, the assistant manager of the Autozone, called the police, locked the front door, and followed Northcutt into the office. In the office, Northcutt and appellant were “all-out tussling” because Northcutt attempted to sit appellant on a stool. Love told appellant, “You might as well stop tussling, dude, because the police are already on their way,” but appellant continued to struggle with Northcutt.
        During the struggle, Northcutt's belt holster that carried his loaded 10mm Glock semi- automatic pistol fell to the floor. Appellant reached down and grabbed the gun. Love screamed that appellant had the gun. Appellant put the gun to Northcutt's neck or head and started yelling, “Let me go.” Afraid he would be shot, Northcut allowed appellant to leave the office. Appellant waived the gun around in a “shooing” motion as he unlocked the front door and walked out of the store. He fled in a Mitsubishi Diamante that was parked in a space reserved for handicapped drivers. Love went to the front door and wrote down the vehicle's license plate number. Love and another Autozone employee, Christian David Chacon, both identified appellant from a photographic lineup as the robber. In-store surveillance cameras recorded the struggle between appellant and Northcutt and appellant's subsequent escape. The video footage was played for the jury.
        Appellant testified that he went to the Autozone to purchase “some plugs.” Angry that an employee would not give him any information, he decided to retaliate by taking a radio and putting it under his shirt. A security guard told him to stop, so he put the radio down. Suddenly, the guard grabbed him and picked him up and carried him into a small office area, bumping and banging him against things along the way. The guard tried to throw him onto a stool despite appellant telling him he could sit down by himself. The guard was a lot heavier and stronger than appellant. The physical force not only made appellant angry but also made him afraid the guard would hurt him. Appellant recalled that the guard was highly agitated during the struggle, repeatedly saying, “I hate thieves.” Appellant said he only picked up the gun to keep the guard from hurting him with it; he was not trying to steal the weapon. He denied pointing it at anyone. Later, he disposed of the gun in a lake. On cross-examination, he admitted he stole the gun.
        Appellant was indicted for the offense of aggravated robbery. The indictment alleged, in part, that on August 24, 2005, while in the course of committing a theft of a firearm from Northcutt, appellant threatened and placed him in fear of imminent bodily injury and death and did then and there use and exhibit a firearm.
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The fact- finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).         A person commits robbery if, in the course of committing theft   See Footnote 2  as defined in Chapter 31 and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See Tex. Pen. Code Ann. § 29.02(a)(1), (2) (Vernon 2003). The elements of aggravated robbery are met if the defendant commits robbery as defined in section 29.02 and he (1) causes serious bodily injury to another; (2) uses or exhibits a deadly weapon; or (3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the person is (A) sixty-five years of age or older; or (B) a disabled person. See id. § 29.03(a)(1), (2), (3). Here, appellant's indictment alleged he exhibited a firearm. See id. § 1.07(a)(17)(A).
        The element of “intent to obtain or maintain control of the property” addresses the actor's state of mind during the theft or attempted theft, not his state of mind during the assaultive component of the offense of aggravated robbery. See White v. State, 671 S.W.2d 40, 42 (Tex. Crim. App. 1984). There is no requirement that a defendant retain the intent to control the property when the assaultive act is committed; the required violence may occur after the offender has abandoned the theft and is escaping. See Lawton v. State, 913 S.W.2d 542, 552 (Tex. Crim. App. 1995), reversed on other grounds by Mosley v. State, 983 S.W.2d 249, 264 (Tex. Crim. App. 1998); White, 671 S.W.2d at 42; see also McCall v. State, 113 S.W.3d 479, 481 (Tex. App.-Houston [1st Dist.] 2003, no pet.). In other words, it is irrelevant that a defendant's control of any property was thwarted and that he may have abandoned the theft component at the time of his assaultive act. Lawton, 913 S.W.2d at 552.         Analysis
        Appellant argues his conviction should be set aside because there is no evidence of the required intent to steal the pistol at the time of the assaultive conduct. However, the State was not required to prove appellant retained the intent to deprive at the time he engaged in the assaultive conduct with a deadly weapon. See Lawton, 913 S.W.2d at 552. Following a failed shoplifting attempt, appellant struggled with Northcutt, grabbed his gun, pointed it at him, and demanded to be set free. Appellant waived the gun around in a “shooing” motion as he walked out of the store and drove away. That appellant threatened Northcutt with the gun after he had stolen it and after he abandoned his theft of the radio does not render the evidence legally insufficient to prove appellant committed aggravated robbery. The statutory element of “intent to obtain or maintain control of the property” deals with the robber's state of mind regarding the property involved in the theft or attempted theft and not his state of mind in the assaultive component of the offense. See White, 671 S.W.2d at 42. In the present case, there is evidence from which a rational jury could conclude appellant was guilty of aggravated robbery with a deadly weapon because he expressed his intent to steal the gun even as he was using it as a deadly weapon to facilitate the theft and his subsequent escape.
        Viewed under the appropriate standard, we conclude the evidence is legally sufficient to support appellant's conviction. We overrule appellant's first issue.
 
Improper jury argument
        In his second issue, appellant claims the trial court erred by refusing to grant a mistrial during closing arguments when the prosecutor made an improper jury argument. He maintains the prosecutor's error was not cured by the trial court's instruction to the jury and the error was harmful.         During the guilt-innocence phase of the trial, the prosecutor made the following statement during her closing argument:
 
You've got three witnesses to what he did, in the video. You've got the video that shows right after he picked up the gun, how that gun is in Mr. Northcutt's neck. And then you've got Mr. Chacon and the store manager, Mr. Love, who I got to tell you is one of the most honest witnesses I think I've ever seen. I mean, he wasn't --
 
Appellant's trial counsel objected to the prosecutor's statement, which he argued was “personal opinion.” The trial court sustained the objection and instructed the jury to disregard the prosecutor's statement. Appellant then moved for a mistrial. The trial court overruled the motion.
        The decision to deny a motion for mistrial is within the discretion of the trial court. Edwards v. State, 106 S.W.3d 833, 838 (Tex. App.-Dallas 2003, pet. ref'd) (citing Rousseau v. State, 855 S.W.2d 666, 684 (Tex. Crim. App. 1993)). We must uphold the trial court's ruling if it is within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).
        The law provides for, and presumes, a fair trial free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). There are four permissible areas of jury argument: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answers to the argument of opposing counsel, and (4) pleas for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). It is well-settled that a prosecutor may not inject his or her personal opinions or beliefs as to matters of consequence to the case in statements to the jury. See McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985); Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985), superseded on other grounds by Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991).
        A mistrial is an extreme remedy for prejudicial events occurring during the trial process. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc). Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant may a motion for mistrial be granted. Id. at 79.
        Analysis
        The trial court properly sustained appellant's objection to the prosecutor's argument. Although it is permissible for a prosecutor to question the credibility of a witness during jury argument through reasonable deductions from the evidence, the statement of the prosecutor addressed her personal view of the witness's veracity. This is not permissible. See McKay, 707 S.W.2d at 37; Johnson, 698 S.W.2d at 167.
        Appellant argues the trial court's instruction to disregard did not cure the harm caused by the prosecutor's argument because it “was deliberate improper argument, designed to influence the jury on an evidentiary point that was hotly contested.” However, even though the prosecutor's comment was improper, we conclude it was not so inflammatory that any prejudicial effect could not be cured by the trial court's instruction to disregard. See Logan v. State, 698 S.W.2d 680, 682 (Tex. Crim. App. 1985) (even if a prosecuting attorney's jury argument is found to be improper, instruction by trial judge to jury to disregard improper argument is usually sufficient to cure the error). Such an instruction will in most cases be considered effective to cure the harm from an improper argument. See Hawkins, 135 S.W.3d at 84. In addition to the instruction to disregard given immediately after the challenged argument was made, the trial court also included an instruction in the jury charge stating the jurors were “the exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given the testimony.” This instruction clarified to the jury that it was not required to believe or disbelieve any witnesses presented by either the State or appellant. See id. (considering jury charge in determining effectiveness of measures taken in response to improper jury argument). The jury was also instructed to wholly disregard statements made by counsel “during argument not supported by the evidence, or statements of law made by counsel not in harmony with the law as stated to you by the Court.” Moreover, in cases involving direct statements of personal belief as to the credibility of a witness, instructions to disregard have been considered effective to cure any harm. See, e.g., McDonald v. State, 148 S.W.3d 598, 603 (Tex. App.-Houston [14th Dist.] 2004) (mistrial not warranted by prosecutor's argument that he thought testifying victim was “very believable”), aff'd on other grounds, 179 S.W.3d 571 (Tex. Crim. App. 2005); Nauert v. State, 838 S.W.2d 328, 329-30 (Tex. App.-Austin 1992, pet. ref'd) (instruction to disregard cured harm from prosecutor's suggestion that jury should believe witness because prosecutors and investigators believed her).
        After reviewing the trial court's instruction to disregard and the trial record, we conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. We overrule appellant's second issue.
amendment of the indictment
        In his third and fourth issues, appellant claims the trial court erred by allowing the State to delete the words “a pager” and “a clip” from the indictment prior to voir dire and immediately before trial. He argues the deletion of these words was an improper amendment of the indictment and not merely an abandonment of surplusage.
        On October 4, 2005, appellant was indicted for aggravated robbery with a deadly weapon. The indictment originally read, in part, as follows:
 
On or about the 24th day of August A.D., 2005 in the County of Dallas and said State, [appellant] did unlawfully then and there while in the course of committing theft and with intent to obtain and maintain control of the property of CEPHAS NORTHCUTT, hereinafter called complainant, the said property being a pager, a clip and a firearm, without the effective consent of the said complainant and with intent to deprive the said complainant of said property, did then and there intentionally and knowingly threaten and place the said complainant in fear of imminent bodily injury and death, and the defendant did then and there use and exhibit a deadly weapon, to wit: a firearm.
 
        On June 26, 2006, prior to voir dire, the State requested that the court strike the words “a pager” from the first paragraph of the indictment. Appellant objected the State was not permitted to amend the indictment on the day of trial. The trial court overruled appellant's objection.
        After the jury was sworn and shortly before trial began, the State requested out of the jury's presence that the court strike the words “a clip” from the indictment. The court ordered the words removed from the indictment. After the court stated its intention to grant the State's request, appellant's trial counsel objected and argued the State was improperly amending the indictment on the day of trial. The trial court overruled appellant's objection.
        The indictment in the Clerk's record shows that the trial judge drew a line through the words “a pager” and “a clip” and wrote his initials in the margin. The record does not indicate when he initialed the indictment.
        Article 28.10 of the Code of Criminal Procedure provides that, “after notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences.” Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 2003). However, “[a]n indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.”
Id. art. 28.10(c). A “different offense” means a different statutory offense. Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991).
        An amendment to an indictment is a change that affects the substance of the indictment, while an abandonment, even if effected by a physical change in the indictment, does not affect its substance. Eastep v. State, 941 S.W.2d 130, 132-33 (Tex. Crim. App. 1997), overruled on other grounds by Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000). An alteration to the charging instrument that constitutes abandonment, rather than amendment of the instrument, does not invoke the requirements of article 28.10. See id. at 133.
        An abandonment is appropriate in the following situations: (1) changing the ways or means of committing the offense; (2) reducing the charge to a lesser-included offense; and (3) eliminating surplusage. Mayfield v. State, 117 S.W.3d 475, 476 (Tex. App.-Texarkana 2003, pet. ref'd). Surplusage is unnecessary language not legally essential to constitute the offense alleged in the charging instrument. Eastep, 941 S.W.2d at 134; see also Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000). A description of the property taken is not a legal requisite for a robbery indictment; therefore, a description of the property taken constitutes surplusage. See Smallwood v. State, 607 S.W.2d 911, 912 (Tex. Crim. App. 1979) (allegation in robbery indictment that property stolen was “three pair women's slacks” was surplusage because property taken not essential element of offense so it need not be proved, even though alleged).
        In Burrell v. State, 526 S.W.2d 799, 802-03 (Tex. Crim. App. 1975), the court of criminal appeals recognized an exception to the general rule regarding surplusage, concluding that when an indictment describes a necessary person, place, or thing with unnecessary particularity, the State must prove all circumstances of the description. However, the court of criminal appeals expressly overruled this so-called Burrell exception in Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex. Crim. App. 2001). Thus, if the words stricken from the indictment were not essential to constitute the offense with which appellant was charged, it was a permissible abandonment of surplusage.
        Analysis
        The indictment in this case originally alleged appellant took a pager, a clip, and a firearm from Northcutt during the robbery. Inclusion of a description of the property that appellant took from Northcutt was unnecessary, however, because the State was only required to allege the elements of the offense. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002) (because victim's name was not an element of the offense, it did not have to be alleged in indictment). A description of the property taken in a robbery is not an element that must be alleged in the indictment. See Smallwood, 607 S.W.2d at 912. Since the words “a pager” and “a clip” were not “essential to constitute the offense,” see Curry, 30 S.W.3d at 399, they were surplusage and could be properly abandoned.
        Arguing the deletions were amendments and not merely an abandonment of surplusage, appellant cites Hilton v. State, 879 S.W.2d 74, 78-79 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd), in which the deletion of the words “two facsimile machines” from the indictment was held to be an amendment rather than an abandonment. In Hilton, however, the State not only deleted the words “two facsimile machines” but also substituted the words “one facsimile machine.” Id. at 79. In the present case, by contrast, the State did not substitute one set of facts and allegations for another. It simply deleted two of the items it originally alleged appellant took from Northcutt. See Bates v. State, 15 S.W.3d 155, 162 (Tex. App.-Texarkana 2000, pet. ref'd) (no amendment of indictment where State struck one fact or allegation but did not substitute another fact or allegation).
        We therefore conclude the trial court did not err in allowing the State to abandon the words “a pager” and “a clip” prior to voir dire and immediately prior to trial. We overrule appellant's third and fourth issues.
        We affirm the trial court's judgment.
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061120F.U05
 
Footnote 1 The jury sentenced him to sixty years in prison.
Footnote 2 “In the course of committing theft” means conduct that occurs in an attempt to commit theft, during the commission, or in immediate flight after the attempt or commission of theft. Tex. Pen. Code Ann. § 29.01(1) (Vernon 2003).