Rufus Mandred Abram v. The State of Texas--Appeal from 177th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-200-CR

RUFUS MANDRED ABRAM,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 177th District Court

Harris County, Texas

Trial Court # 645,456

O P I N I O N

A jury found that Rufus Abram had committed the offense of burglary of a habitation with the intent to commit theft. See Tex. Penal Code Ann. 30.02(a)(1) (Vernon 1994). The court found two enhancement allegations "true," and assessed punishment of fifty years' imprisonment. In the first of three points of error, Abram claims that the evidence is insufficient to support his conviction. Next, he contends that the court erred by denying his motion for a mistrial after testimony concerning a statement by a non-testifying witness. Finally, he complains that the court improperly denied a second motion for mistrial after the State elicited testimony concerning his post-arrest silence. We will affirm.

Jeffery Wesson, the complainant, returned to his home after a two-week absence only to discover that the back door had been "kicked in." He immediately left to call the police. After informing the police, he returned to his home some twenty to thirty minutes later. When he pulled into his driveway, he saw a late-1960's model Oldsmobile station wagon parked inside his garage. He also saw two individuals "coming in and outside of the house itself. There was a door that leads from the garage to the house. They were coming in and out of there, in and out of the house, carrying different items." Wesson identified Abram as one of the individuals he saw at his house; the other was identified at trial by Abram's attorney as Lonnie Anderson. After a couple of minutes, Wesson got out of his car to go to his neighbor's house to again call the police. After talking with the police, he walked across the driveway to alert his other neighbor to the situation. While he was crossing the driveway, Anderson asked him if he needed something. Wesson reply was "something to the effect, no, you can't help me with anything but you can help the authorities when they arrive." Abram and Anderson then got in their car and drove away.

Shortly after Abram drove away, Houston Police Officer Victor Archer arrived, responding to Wesson's burglary-in-progress call. Wesson stopped Archer in the street and told him what had occurred. Additionally, Wesson told Archer that "they were over at the bus depot which was directly behind [his] house." Archer had Wesson get into the patrol car and they drove around the block to the bus stop, where they found the car abandoned. // Wesson spotted Anderson walking on the sidewalk, and Archer arrested him. Wesson's neighbor, who drove himself to the bus depot, saw Abram in a nearby field, and Archer drove his car into the field to arrest him. Wesson ran into the field behind Archer's car, so that he was "right there" when Abram was arrested.

In his first point, Abram claims that the evidence is insufficient to support his conviction. To obtain a conviction for burglary, as alleged in the indictment, the State had the burden of showing that (1) Abram, (2) without the effective consent of the owner, (3) entered a habitation, not then open to the public, (4) with the intent to commit theft. See id.; Garcia v. State, 571 S.W.2d 896, 899 (Tex. Crim. App. [Panel Op.] 1978). In resolving the sufficiency-of-the-evidence issue, we view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found these essential elements of the offense charged beyond a reasonable doubt. See Blankenship v. State, 780 S.W.2d 198, 206-07 (Tex. Crim. App. 1989) (on rehearing). Reconciliation of conflicts and contradictions in the evidence is for the jury. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). The jury may believe some witnesses and refuse to believe others, or accept part of a witness' testimony and reject other parts. Losada, 721 S.W.2d at 309.

Abram argues that there is no evidence that he entered the home. However, Wesson testified that he saw Abram "coming in and outside of the house itself . . . in and out of the house . . . ." This evidence is sufficient to support the jury's conclusion that Abram entered Wesson's habitation. See Blankenship, 780 S.W.2d at 206-10. Wesson also testified that the house "is kind of built around the garage" and that a door from the garage leads into the house. Thus, the garage itself could be a "habitation" for the purposes of article 30.02. See Tex. Penal Code Ann. 30.01(1)(B); Johnson v. State, 844 S.W.2d 872, 874 (Tex. App. Amarillo 1992, no pet.). Therefore, Wesson's testimony that he saw Abram in the garage is alone sufficient to satisfy the State's burden of proof. See Blankenship, 780 S.W.2d at 206-10. Point one is overruled.

In point two, Abram complains that the court improperly denied a motion for mistrial based on Wesson's allusion to his neighbor's statement. Wesson testified about the apprehension of Anderson and Abram. After Wesson stated that Archer arrested Anderson, the prosecutor questioned him about Abram's arrest:

Q Okay. Now, after he got [Anderson], what is the next thing that happened?

A Put that individual in the police car. And my neighbor drove up in his vehicle and saw another individual that was also involved. He had been watching it from the back of his house.

[DEFENSE COUNSEL]:Your Honor, I'm going to object to him testifying as to what his neighbor saw.

THE COURT: Sustained.

[DEFENSE COUNSEL]:Excuse me. Would you instruct the jury to disregard?

THE COURT:Members of the jury, you are to disregard his statement of what his neighbors saw and not consider it for any purpose whatsoever.

[DEFENSE COUNSEL]:I move for a mistrial.

THE COURT:Motion for mistrial is denied.

. . .

Abram claims that "Wesson's blurting out that a non-testifying neighbor also identified Abram turned the prosecution from a one-witness case into a multiple-witness case." However, Wesson did not indicate that his neighbor identified Abram as a perpetrator, only that his neighbor saw a second individual involved in the offense. The court prevented Wesson from testifying to that effect by sustaining Abram's objection. Generally, an instruction to disregard is effective to correct error in admitting improper testimony, "unless it appears the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds." Barnes v. State, 876 S.W.2d 316, 326-27 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 115 S. Ct. 174, ___ L.Ed.2d ___ (1994). Because there was no direct reference to Abram as the individual the neighbor identified, this evidence is not of such character as to suggest the impossibility of withdrawing the impression produced on the jury's minds. See id. Thus, the court did not err in denying Abram's motion for a mistrial. Point two is overruled.

In his third point, Abram complains that the court refused to grant him a mistrial based on Officer Archer's reference to Abram's post-arrest refusal to answer questions. In his testimony, Archer described the arrest and the rights that he read to Abram. Archer then testified about questioning the suspects:

A [By Archer] . . . I also began questioning the suspects.

Q [By the State] Did you talk to this Defendant here in particular?

A Yes, sir.

Q And what did you ask him?

A I asked him what they were doing in the house over at River Bluff that was identified as the burglarized residence.

Q Okay. And now I just want to remind you as far as anything that is said, I just want to hear what he said, okay, not what the other suspect in this case said. Okay?

So did this Defendant then say anything to you --

A He began replying he didn't want to answer no questions. That's his comment.

[DEFENSE COUNSEL]Your Honor, I'm going to object to the prosecutor eliciting a question from the witness that goes to the right of the Defendant to remain silent.

. . .

The court sustained the objection, instructed the jury that they were "not to consider [Archer's answer] for any purpose whatsoever," but denied Abram's motion for a mistrial.

The State is prohibited from using a defendant's post-arrest silence against him at trial, even for impeachment if the defendant testifies in his own defense. See Sanchez v. State, 707 S.W.2d 575, 580 (Tex. Crim. App. 1986); also Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). Thus, testimony that "there was no response" to the arresting officer's request to the defendant for a statement after arrest is prohibited. See Waldo v. State, 746 S.W.2d 750, 752 (Tex. Crim. App. 1988). However, an instruction to disregard such improper testimony is presumed to be effective. Id. at 753-54. Again, only "in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds" is an instruction to disregard ineffective. Id. at 752. In Waldo, the Court of Criminal Appeals set out six factors to consider when evaluating such a complaint. Id. at 754. Although not exhaustive or definitive, these factors have been utilized by other courts. Id.; see Fletcher v. State, 852 S.W.2d 271, 274-76, 275 n.5 (Tex. App. Dallas 1993, no pet.).

Without listing and analyzing each of the factors, we are guided by them in considering Abram's complaint in this cause. We conclude that the testimony was not of the type that would cause the instruction to disregard to be ineffective. See Waldo, 746 S.W.2d at 752, 754-57. Thus, the court did not err in denying Abram's motion for a mistrial. See id. at 757; Fletcher, 852 S.W.2d at 276. Point three is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 1, 1995

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