Vincent Joseph Cole v. The State of Texas--Appeal from 289th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00711-CR

Vincent COLE,

Appellant

v.

The STATE of Texas,

Appellee

From the 289th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CR-0610

Honorable Carmen Kelsey, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: November 23, 2005

AFFIRMED

Vincent Cole was convicted of aggravated robbery and sentenced to ten years imprisonment and a fine of two hundred and fifty dollars. He appeals, bringing issues of factual and legal sufficiency and denial of the right against self-incrimination, the right to confrontation, due process and denial of his motion for mistrial. We overrule all issues and affirm the trial court s judgment.

Background

The aggravated robbery at issue in this case was captured on a security camera, and the videotape was shown to the jury. According to the testimony of Jasmine Holland, sometime in August of 2001, she, along with her boyfriend Vincent Cole and her younger brother Willie Wilson, agreed to rob a store. On the day of the robbery, they decided to rob EZ Shop, a store located near Holland s house. The plan was for Holland to drive the group to the store and enter first in order to check for cameras. After Holland completed her task, Cole and Wilson would then enter the store, demand money, and leave in the getaway car driven by Holland.

On August 27, 2001, Luis Limas Beltran and his friend Omar Cervantes, // went to EZ Shop to purchase a bag of chips. As they entered, Beltran noticed two males and a female sitting in a yellow Cadillac parked next to the store. Olga Gamez was the clerk on duty that day at EZ Shop. As she opened the register to check out Beltran, two young black males entered the store, later identified as Cole and Wilson. Cole had white panty hose pulled over his face, and Wilson had a bandanna over his face. Wilson stayed by the door, holding a rifle, and Cole approached the register where Beltran and Gamez were standing. As he pointed his gun at Gamez, Cole demanded from her, Give me the money. This is a stick up. According to Beltran, Gamez was really frightened and backed away. When Beltran looked out the window, he saw a young female driving a yellow Cadillac leaving EZ Shop s parking lot. According to Holland, as soon as Cole and Wilson entered the store, she got scared and decided she no longer wanted to participate in the robbery. So, instead of waiting for them, she drove away. At that point, Cole grabbed the money from the open register. After the robbers ran out, Gamez told Beltran to look at the license plate number of the Cadillac but Beltran was unable to do so.

According to the testimony of Robert Ramos, whose backyard faced EZ Shop, on the same day and at about the same time as the robbery took place, he saw two young black males running from the direction of EZ Shop. One of the males was carrying a pistol and the other a rifle. When Ramos noticed the weapons, he telephoned the police. The males seemed to be looking or waiting for something. Some twenty minutes later, a yellow Cadillac pulled up. The male with the rifle ran to a drainage ditch, came back without the rifle, and got into the car. Ramos then saw the Cadillac drive away. Once the police officers arrived, Ramos told them about the rifle and helped them find and recover it from the ditch. The officers also found a shoe in the ditch that was stuck in the mud. Holland later confirmed that when Cole and Wilson were getting in the car, Cole was missing a shoe. Upon arriving at EZ Shop, the police officers viewed the security videotape that had recorded the entire incident. They took statements from the witnesses, including Gamez. Officer Regalado, a detective who responded to the report of an aggravated robbery, spoke with Gamez and later testified that she appeared real calm at the moment, but she was probably hiding her true feelings. Gamez told him what happened, and her account of the incident was consistent with what the officers had seen on the videotape. Robert Saldana, the manager of EZ Shop, testified that after the robbery, about two hundred and fifty dollars was missing from the store.

Just a few hours after the robbery, the police found a yellow Cadillac matching the description of the robbers car parked in front of a house in a neighborhood close to EZ Shop. The house was Holland s house, and all three robbers were present. After Holland signed a written consent to search, police officers searched the house and found keys to the Cadillac and a sneaker that matched the shoe recovered from the ditch near EZ Shop.

Furthermore, after being brought to the location, Beltran was able to identify Cole as the individual who robbed EZ Shop. Although the robber who demanded the money was wearing white panty hose on this head, Beltran was certain that Cole was the robber, explaining that the robber had been standing just a few feet away from him and the panty hose had been torn in numerous places, allowing him to see the robber s face. Ramos, however, was not able to see the robbers faces and, as such, was not able to identify Cole and Wilson as the males he saw running on the street with the guns.Legal and Factual Sufficiency

A. Legal Sufficiency

Cole alleges that the evidence was legally insufficient to support his conviction. When conducting a legal sufficiency-of-the-evidence review as prescribed by Jackson v. Virginia, 443 U.S. 307, 319 (1979), we do not weigh the evidence tending to establish guilt against the evidence tending to establish innocence, nor do we assess the credibility of witnesses on each side. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). We view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). If we determine that the evidence is legally insufficient, we must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex Pen. Code Ann. 29.02(a)(2) (Vernon 1994). The offense is elevated to aggravated robbery if, during its commission, the person uses or exhibits a deadly weapon. Id.

Cole contends that the evidence is legally insufficient because the complainant, Olga Gamez, did not testify at trial. Thus, Cole argues that there is no evidence that Gamez parted with the cash as a result of fear of imminent bodily injury and death. Instead, he argues that it is possible Gamez consented. We disagree and hold that the evidence is legally sufficient.

First, [w]hat is not in evidence is irrelevant to a determination of the sufficiency of the evidence and, therefore, the absence of Gamez s testimony is irrelevant for sufficiency review, as long as there is other evidence in support of Cole s conviction. See Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986). The State may prove its case by direct or circumstantial evidence so long as it shoulders its burden of proving all of the elements of the charged offense beyond a reasonable doubt. See Gerhardt v. State, 965 S.W.2d 55, 57 (Tex. App. Houston [1st Dist.] 1998 pet. ref d).

Second, with regard to consent, the court of criminal appeals has held that circumstantial evidence is sufficient to prove a lack of consent for aggravated robbery. See Taylor v. State, 508 S.W.2d 393, 397 (Tex. Crim. App. 1974) (overruling cases holding that proof of consent may only be shown through direct evidence). In Taylor, the court held that lack of consent to enter or take property may be proved by circumstantial evidence, the same as any other issue in a criminal case may be proved by circumstantial evidence. Id. Furthermore, there can be sufficient evidence to prove lack of consent even though the complainant does not testify. See Reese v. State, 531 S.W.2d 638, 641 (Tex. Crim. App. 1976); Daigle v. State, 658 S.W.2d 774, 776 (Tex. App. Beaumont 1983, no pet.).

Third, with regard to placing another in fear of imminent bodily injury, when a robbery is effected by threats of bodily injury or by placing another in fear, that fear must be of such nature as in reason and common experience is likely to induce a person to part with his property against his will. Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989). The victim s fear must arise from the conduct of the accused, rather than the mere temperamental timidity of the victim. Id. at 271. Thus, we must ask if the words and conduct of the accused were sufficient to place a reasonable person in the victim s situation in fear of imminent bodily injury or death. Welch v. State, 880 S.W.2d 225, 226 (Tex. App. Austin 1994, no pet.); Knight v. State, 868 S.W.2d 21, 24 (Tex. App. Houston [1st Dist.] 1993, pet. ref d); Wilmeth v. State, 808 S.W.2d 703, 706 (Tex. App. Tyler 1991, no pet.).

Here, the jury heard considerable evidence from which it could have reasonably concluded that Gamez did not consent to Cole taking two hundred and fifty dollars and that she was placed in fear of bodily injury or death. Holland testified that there was a plan between Cole, Wilson, and herself to rob a convenience store. Robert Saldana, the manager of EZ Shop, testified that he did not consent to anyone coming to the store with firearms and taking anything from it or from Gamez, his employee. The evidence showed that once Cole and Wilson entered the store, Cole had a gun and Wilson had a rifle which they used to threaten and intimidate Gamez in order to obtain money from her. Furthermore, Cole wore panty hose on his face, a disguise that indicates robbery, and announced that it was a stick up. Beltran testified that Gamez got scared when she was threatened by Cole and backed away. Beltran also identified Cole as the perpetrator. In addition, the entire robbery was recorded on the videotape. Therefore, the circumstances of the offense demonstrate that Gamez was placed in fear and did not consent to Cole taking the money. See Knight, 868 S.W.2d at 24; Wilmeth,808 S.W.2d at 706.

Moreover, Cole argues that a conviction cannot be had upon the testimony of an accomplice witness unless the jury first believes that the accomplice witness s testimony is true and that it shows the defendant is guilty of the offense charged against him. He further asserts that just like a jury is required to do deliberations, on appellate review, this Court should only consider accomplice testimony if, and only if, it answers all of the questions in the affirmative.

In conducting a sufficiency review under the accomplice-witness rule, a reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). Here, there is sufficient evidence apart from the testimony of Holland, the accomplice witness, such as identification of Cole by Beltran, the videotape, the discovered shoe and rifle, and the testimony of Robert Ramos, that tends to connect Cole with the commission of the crime. Viewing the evidence in the light most favorable to the verdict, we find that there is legally sufficient evidence to support Cole s conviction for offense of an aggravated robbery.

B. Factual Sufficiency

According to Cole, without evidence demonstrating physical harm to the complainant, and without complainant s testimony that she parted with the currency because of fear, the evidence is factually insufficient to prove guilt beyond a reasonable doubt.

In a factual sufficiency review, we view all of the evidence in a neutral light and we will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the contrary evidence is so strong that the beyond a reasonable doubt standard of proof could not have been met. Russeau v. State, 171 S.W3d 871, 878 (Tex. Crim. App. 2005); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). A clearly wrong and unjust verdict occurs when the jury s finding shocks the conscience or clearly demonstrates bias. Russeau, 171 S.W3d at 878.

With regard to factual sufficiency, Cole argues that because the complainant did not testify, the evidence is so weak that the verdict is clearly wrong and unjust. See id. We disagree. As discussed above, the complainant did not need to testify and without her testimony, there was substantial evidence of his guilt. // Viewing all of the evidence in a neutral light, we hold that the evidence was factually sufficient.

The Right Against Self-Incrimination

Cole argues the prosecution improperly commented on his failure to testify during the punishment phase of trial, in violation of the Fifth Amendment to the United States Constitution. The State responds that the comment was a proper summation of the evidence and that any error was harmless.

During the closing argument in the punishment phase, the prosecutor argued the following to the jury:

First of all, I do want to apologize if I made any misstatement in questioning [a witness], not only to you, to the Court, to [the witness] if that s, in fact, so, but also to Vincent [Cole]. But by the same token, I believe in taking responsibility for our actions, and that s why I apologize because it s true.

By the same token, you have to take responsibility for your actions in life. If you commit the crime, you have to be willing to stand up when it s all over with and say, I was wrong, just like Jasmine [co-defendant] came forward.

(emphasis added). At that point, the defense attorney objected, and without first asking for an instruction to disregard, moved for a mistrial. The trial judge overruled the objection and denied the motion for a mistrial. However, he warned the prosecutor to [s]tay away from the argument about responsibility, and the prosecutor complied.

The State requested that the jury assess Cole s punishment at sixty years: twenty years for Olga Gamez, twenty years for Beltran, and twenty years for Omar Cervantes. The defense argued that Cole should be placed on community supervision. The jury assessed punishment at ten years imprisonment and a fine of two hundred and fifty dollars.

A prosecutor s comment on a defendant s failure to testify offends both the federal and Texas Constitutions. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). To violate the right against self-incrimination, the offending language must be viewed 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. It is not sufficient that the language might be construed as an implied or indirect allusion. Id. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant s failure to testify. Id. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character. Id.

A. Preservation of Error

However, before an appellate court can evaluate improper prosecutorial jury argument, the error at issue must be properly preserved. In order to preserve an error for appeal, a defendant should do the following: 1) make a timely objection; 2) request an instruction to disregard; and 3) move for a mistrial if an instruction to disregard is not sufficient to cure the error. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). Here, although Cole failed to request an instruction to disregard, the court of criminal appeals has recently held that the failure to request an instruction forfeits appellate review only if the event could have been cured by such an instruction. Id. at 70. However, if the argument is so prejudicial that an instruction to disregard would not be sufficient to remove the harm, a request for mistrial would preserve error. Id. Accordingly, because Cole did not request an instruction to disregard, he has waived error if the prosecutor s statement could have been cured by such an instruction to disregard. See id.
Improper jury argument is incurable if, (1) in light of the record as a whole, the argument is extreme or manifestly improper, injects new and harmful facts into the case, or violates a mandatory statutory provision and (2) is so inflammatory that its prejudicial effect cannot reasonably be cured by an instruction to disregard. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). Here, the prosecutor s statement was of a curable nature. Examining the record as a whole, we fail to see how the prosecutor s comment during the punishment closing argument unduly prejudiced the jurors minds when there was overwhelming evidence implicating Cole, like the testimony of Beltran, Robert Ramos, Officer Holguin, and Holland, and the videotape of the crime. Further, the trial court s admonitions to the jury reminded the jurors that arguments from counsel constitute opinions, not evidence. Additionally, although the State argued that the jury should sentence Cole to sixty years, the jury only assessed punishment at ten years confinement and a two hundred and fifty dollars fine. Furthermore, when the trial court requested that the prosecutor change his line of argument, the prosecutor complied. Looking at the prosecutor s comment in light of the entire record, the statement did not inject any new or harmful facts into the case, and it was not so extreme or inflammatory that it could not have been cured. Taking all of these factors into consideration, we hold that because an instruction by the trial court could have cured any error, by failing to request an instruction to disregard, Cole waived this issue on appeal.

Right to Confrontation and Hearsay Statement

A. Right to Confrontation

Cole argues that he was deprived of his constitutional right to confront witnesses and that the trial court erred in admitting a hearsay statement. According to Cole, the trial court should not have allowed other witnesses to testify about Gamez s statements without evidence that Gamez was unavailable to testify. At trial, Officer Holguin testified that upon his arrival at the scene of the crime, he briefly spoke with Gamez. The prosecutor asked Holguin whether Gamez s version of events was consistent with what Holguin heard from the other witnesses, Beltran and Cervantes. Holguin answered, Yes... [her s]tatements were consistent.

The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees the right of an accused to be confronted with the witnesses against him. U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 67 (2004), the Supreme Court held that testimonial hearsay evidence violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him. Here, however, the admission of any testimonial hearsay evidence is harmless.

We must reverse the trial court s judgment unless we can determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex. R. App. P. 44.2 (a). In considering whether there is harm in a Confrontation Clause case, we apply the three-prong test developed by the Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673, 684 (1980). See Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991); see also Samarron, 150 S.W.3d at 707; De la Rosa v. State, 961 S.W.2d 495, 499 (Tex. App. San Antonio 1997, no pet.). First, we must assume that the damaging potential of the cross-examination was fully realized. Van Arsdall, 475 U.S. at 684. Second, with that assumption in mind, we must review the error in connection with the following factors: the extent for cross-examination otherwise permitted; the importance of the witness s testimony in the State s case; whether the testimony was cumulative; the presence or absence of evidence corroborating or contradicting material points of the witness s testimony; and the overall strength of the State s case. Id. Finally, in light of the first two prongs, we determine if the error was harmless beyond a reasonable doubt. Id.

In applying these factors to the instant case, we hold that the trial court s error was harmless and did not contribute to the conviction or punishment assessed beyond a reasonable doubt. The substance of Gamez s statement was before the jury through eyewitness Beltran s testimony and the videotape. Both the videotape and Beltran s testimony were substantially the same as Officer Holguin s testimony of Gamez s statement. And as discussed previously, the State s case against Cole was strong. After reviewing the record, we conclude that if Cole s right of confrontation was violated, any error was harmless.

B. Hearsay Statement

Cole also argues that the trial court should not have allowed Officer Holguin s statements because they were hearsay. However, as discussed above, any error would be cumulative and harmless. See Tex. R. App. P. 44.2 (b).

Denial of Mistrial

In his sixth issue, Cole alleges the trial court erred in denying his motion for a mistrial when the prosecutor questioned a witness about psychiatric care for Gamez. According to Cole, such evidence was irrelevant and unfairly prejudicial, leaving the jury to believe that Gamez was victimized and was excused from testifying in court.

A mistrial is a device used to halt trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Id. The asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard. Id. A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Id. A trial court s denial of a mistrial is reviewed under an abuse of discretion standard. Id.

Cole, however, does not clearly point to the testimony that he claims was admitted in error. See Tex. R. App. P. 38.1 (h). Reviewing the record, we note that during the direct examination of Miller, an investigator for the Bexar County District Attorney s Office, the following occurred:

Prosecution: And did you talk to her [non-testifying complainant Gamez] about her coming in to testify?

Witness: Yes, I did.

Prosecution: And she s also in the care of a psychiatrist, correct?

Defense: Objection; ... [prosecutor] is leading witness. That s my first objection. Relevance of whether she s under the care of a doctor. I don t see how that s relevant to the trial.

The Court: Objection is sustained as to leading.

* * *

Subsequently, outside the presence of jury:

Defense: And my last remark on this question... in terms of [the State] asking questions about a psychologist, it s highly prejudicial, it s an intent to inflame or prejudice the jury against my client. Based on that, Judge, we request a mistrial.

The Court: Denied.

The witness never answered the question about the psychiatrist in the presence of the jury. Any further discussion about the psychiatrist was made at a hearing outside the presence of the jury between the two attorneys and the trial judge. After the conference, the State inquired into Gamez s demeanor when Miller spoke with Gamez about appearing at trial. Over the defense s objection, Miller responded that [h]er demeanor ranged from fear, to apprehension, to agitation.

In reviewing the record above, the trial court did not abuse its discretion in denying Cole s motion for mistrial. The prosecutor merely asked the question about psychiatric care. The witness never answered the question.

Due Process

Finally, Cole brings the following issue:

The State violated Mr. Cole s right to confrontation by denying him the right to confront the complainant, who was not unavailable to testify at trial; the trial court erred in allowing, over defendant s objections, statements from the non-testifying complainant regarding her account of the alleged robbery; the trial court erred in not granting a mistrial after the prosecutor, in leading fashion, asked whether the complainant was under psychiatric care; the trial court erred in denying defense counsel to voice his objection prior to testimony about the complainant s demeanor when she was confronted with the subject of testifying. Therefore, in their totality, the State s violation, together with the trial court s evidentiary errors, deprived Mr. Cole of a fair trial, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

For reasons discussed above, with respect to a due process violation, Cole s issue is meritless and overruled.

Conclusion

We overrule Cole s issues and affirm the judgment of the trial court.

Karen Angelini, Justice

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