White, Robert Curtis v. The State of Texas--Appeal from 351st District Court of Harris County

Affirmed and Opinion filed July 11, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01089-CR

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ROBERT CURTIS WHITE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 862,398

O P I N I O N

A jury found appellant, Robert Curtis White, guilty of robbery, and the trial court assessed his punishment at 20 years confinement. Appellant asserts three points of error on appeal. We affirm.

While monitoring closed circuit cameras at a JCPenney store in a Houston mall on November 30, 2000, loss prevention officer Wes Clarke observed appellant roll up several items of clothing, conceal them in his overalls, and enter a fitting room. When appellant exited the fitting room, Clarke noticed appellant possessed different items of clothing. After appellant left the store, Clarke investigated the fitting room. He discovered that the items appellant had concealed were not in any of the fitting rooms. Clarke followed appellant into the parking lot, stopped him, and requested that he return to the store. Appellant told Clarke that he did not have any merchandise and refused to return to the store.

When another loss prevention officer arrived, appellant fled on foot. Clarke chased and caught up with him, and placed him in a choke hold to prevent him from escaping. Appellant unsuccessfully tried to push and hit Clarke to escape his hold. Appellant slipped out of Clarke s grip and bit him on the bicep hard enough to break the skin and leave a bruise that lasted two weeks. Then, Clarke struck appellant, handcuffed him, and led him back to the store. Inside the loss prevention office, Clarke removed from inside appellant s clothing six JCPenney shirts, each with a price tag attached. Later, Officer Kerry Shaw of the Houston Police Department interviewed Clarke for the offense report, photographed the bite mark on Clarke s bicep, and took custody of the shirts and appellant.

Motion in Limine

In his first point of error, appellant asserts the trial court erred by denying his motion in limine to bar the State s use for impeachment purposes of his 25 year old conviction for aggravated robbery. Appellant s motion in limine asked the trial court to prohibit the State s anticipated use for impeachment of his convictions for aggravated robbery and theft of mail. The trial court sustained his objection as to the conviction for theft of mail, but overruled his objection as to the conviction for aggravated robbery. Appellant thereafter chose not to testify at trial.

On appeal, appellant argues that [t]he case turned on [his] version versus that of the complainant loss prevention officer, and that his right to testify and present a defense was denied due to the threat of impeachment during the guilt innocence phase. We disagree.

The courts have settled appellant s complaint adversely to him. Appellant must actually testify in order to preserve a pretrial ruling on the admissibility of prior conviction impeachment evidence. See Jackson v. State, 992 S.W.2d 469, 479 81 (Tex. Crim. App. 1999) (adopting reasoning in Luce v. State, 469 U.S. 38, 43 (1984); Caballero v. State, 919 S.W.2d 919, 923 (Tex. App. Houston [14th Dist.] 1996, pet. ref d). Otherwise, a reviewing court would be forced to speculate about (1) the exact nature of the defendant s testimony, (2) whether the trial court s decision would have remained the same or would have changed as the case continued, (3) whether the State would have sought to impeach the defendant with the prior conviction, (4) whether the defendant would have testified regardless, and (5) whether any resulting error in allowing impeachment would have been harmless. Jackson, 992 S.W.2d at 479.

Although appellant points to Theus v. State in support of his argument, that case is distinguishable in that the defendant testified at trial and was impeached with evidence of his prior felony conviction. 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). Here, appellant chose not to testify. Thus, because there is no factual record of appellant s testimony, we are unable to weigh the probative value of his testimony against the prejudicial effect of the conviction. Tex. R. Evid. 609(b); Caballero, 919 S.W.2d at 923. Error, if any, was not preserved because appellant did not testify. Appellant s first point of error is overruled.

Comment on Failure to Testify

In his second point of error, appellant contends the trial court erred in denying his motion for mistrial because the opening remarks of the prosecution s closing argument constituted a comment on appellant s failure to testify, violating his Fifth Amendment right against self-incrimination. In particular, appellant points to the prosecutor beginning his closing argument as follows:

PROSECUTOR: Mr. Smith. Ladies and gentlemen of the jury: This defendant wants to tell you today that it s all--

SMITH: Objection, Your Honor. May we approach the Bench?

THE COURT: Yes, sir.

SMITH: Your Honor, I object to that argument as calling attention to the Defense s failure to testify.

THE COURT: I ll sustain it.

SMITH: I d ask for an instruction.

THE COURT: That will be -- The jury will disregard the last statement of the counsel for the State entirely.

SMITH: And I move for a mistrial.

THE COURT: That will be overruled.

Proper State s argument must fall within one of four general categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). A prosecutor violates both federal and state constitutions if he comments on a defendant s failure to testify. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001).

A court must review the language in question from the jury s standpoint and the implication that the comment referred to the defendant s failure to testify must be clear. Id. at 765. The court then determines whether the language in question was manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the accused s failure to testify. Id. An indirect or implied allusion to the defendant s failure to testify is not enough. Id. Furthermore, a court s instruction to disregard, as was given here, will generally cure the comment. Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995).

In this case, the context of the prosecutor s remark indeed, the opening remark in his closing statement showed that it was the beginning of a summary of the defense s theory of the case. The prosecutor s remark, though terminated before his sentence was completed, was in response to opposing counsel s presentation, not to appellant personally. The prosecutor s interrupted comment, which the trial court instructed the jury to disregard, was at worst an indirect or implied allusion, not a direct comment on appellant s failure to testify. Thus, appellant s second point of error is overruled.

Sufficiency Review

In his third point of error, appellant argues that the evidence is legally and factually insufficient to support a finding that he intentionally and knowingly committed the offense of robbery.

In determining legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 19 (1979); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). The jury is the exclusive judge of the facts proved, credibility of the witness, and the weight to be given their testimony. Bingall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).

To obtain a conviction of robbery, the State must prove that the defendant, in the course of committing a theft, and with intent to obtain or maintain control of property intentionally, knowingly, or recklessly caused bodily injury to another. Tex. Pen. Code Ann. 29.02(a)(1) (Vernon 1994). In the course of committing theft means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. Id. at 29.01(1) (Vernon 1994).

Appellant argues that the evidence fails to (1) show that his alleged biting of the complainant, Clarke, was not done in self defense, rather than in furtherance of theft, and (2) controvert the fact that appellant was simply trying to get away.

Appellant s alleged biting of Clarke is remarkably similar to the actions found elsewhere to constitute conduct committed in the course of committing theft. In Thomas v. State, the defendant was observed committing theft and was temporarily detained. 708 S.W.2d 580, 580 (Tex. App. Eastland 1986, pet. ref d). In an effort to escape, the defendant assaulted a security guard by grabbing her throat, choking her, pulling her hair, and tearing her blouse. Id. The Eastland Court of Appeals held that a rational trier of fact could find such conduct sufficient to establish the elements of robbery beyond a reasonable doubt. Id. at 581. Viewed in the light most favorable to the

verdict, a rational trier of fact could find that appellant s conduct comprised all of the elements of robbery. Thus, the evidence is legally sufficient.

Appellant further argues that the evidence is factually insufficient to show that he committed robbery. Under a factual sufficiency analysis, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). After such a review, the evidence will not be deemed factually insufficient unless (1) it is so weak as to be clearly wrong and manifestly unjust, or (2) the adverse finding is against the great weight and preponderance of the available evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Here, appellant neither testified nor called any witness in his defense, such that the State s case was not outweighed by contrary evidence. Neither was the State s evidence so weak as to render the verdict manifestly unjust. The State s case was factually sufficient to show the offense of robbery. Appellant s third point of error is overruled.

The judgment is affirmed.

/s/ Lee Duggan, Jr.

Senior Justice

Judgment rendered and Opinion filed July 11, 2002.

Panel consists of Justices Hudson, Fowler, and Duggan.[1]

Do Not Publish Tex. R. App. P. 47.3(b).

[1] Senior Justice Lee Duggan, Jr., sitting by assignment.