Constant Jackson v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-94-227-CR

CONSTANT JACKSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 20922CR

O P I N I O N

A jury convicted Constant Emanuel Jackson of aggravated robbery and sentenced him to sixty years in prison. See Tex. Penal Code Ann. 29.03 (Vernon 1994). He appeals on two points, asserting that the court erred in denying his motion for mistrial and in overruling his objections to certain exhibits offered by the State. We will affirm the judgment.

BACKGROUND FACTS

Wade Massenburg testified that he was working at the Dallas Pawn and Jewelry Store on November 18, 1993. Jackson entered the store and asked how much Massenburg would give him for a nine millimeter pistol. Massenburg asked to see the weapon. Jackson pulled a pistol from a zippered "athletic" bag, pointed the gun at Massenburg's chest, and told him to put his hands up. Massenburg identified Jackson's weapon as a "380 Larson."

According to Massenburg, Jackson selected certain semi-automatic weapons from an exhibit case and instructed Massenburg to place them in the zippered bag. He then asked Massenburg where the money was kept. Massenburg emptied the cash register of approximately $1,800 and gave it to Jackson. The two men returned to the exhibit case and Jackson instructed Massenburg to put several more revolvers in the bag. Massenburg stated that there were two pair of handcuffs in the exhibit case. Jackson put one pair in his pocket and told Massenburg to put on the other pair. Massenburg refused.

The two men then went to the back of the shop where "pawned" merchandise was kept. Massenburg stated that the zippered bag was now full. Jackson saw a red Coca Cola bag. He instructed Massenburg to place two shotguns, clips of ammunition, and a "Tech 9" weapon in the bag.

Jackson eventually left the store. Massenburg saw a small dark car drive away from the pawn shop. Another customer stated that he had seen a black Ford Probe in the parking lot during the robbery.

Massenburg stated that, of the thirty weapons stolen, only five had been recovered. The recovered weapons had been identified by their serial numbers. Massenburg testified that, on more than one occasion during the robbery, Jackson had said to him, "You've seen my face, you know what that means I have to do."

Tim Lampkin, an officer with the Waxahachie Police Department, testified that he had been alerted to look for a black Ford Probe automobile. He saw a dark blue Probe parked with four men standing behind it with the trunk open. The men shut the trunk when they saw the officer. Jackson was seated behind the wheel of the Probe attempting to leave when Lampkin approached the vehicle. Lampkin saw the barrel of a pistol under the driver's seat. Jackson was arrested. An inventory of the automobile revealed a Ruger P85, a 380 Larson, and a red Coca Cola bag containing weapons, ammunition clips, and handcuffs. Jackson had $1,456 on his person.

MOTION FOR MISTRIAL

In his first point, Jackson complains that the court erred in denying his motion for mistrial made during the State's opening argument. The State began its opening statement:

[STATE]: You've seen my face. You know what I have to do." When Wade Massenburg heard those words, said to him, on November 18, 1993, he had his hands in the air, and at that time he had a 380 semi-automatic pistol --

[JACKSON]:Your Honor, we're going to have to object to the form of the opening statement. I don't mind giving a little outline of what he expects to prove, but he's basically testifying.

[COURT]: Sustained. . . . It's argumentive, counselor.

The prosecutor continued, stating that Jackson had entered the pawn shop, pulled a gun on the victim, and stolen money and automatic weapons. Jackson objected, saying that "it's not an opening statement, it's final argument," that the prosecutor was "testifying," and that witnesses were in the courtroom who had not been sworn or placed under "the rule." Jackson moved for a mistrial "on the basis that [the prosecutor] persists in arguing the case rather than stating to the jury what he expects to prove."

At Jackson's request, the court swore in the witnesses and invoked the rule. The court denied his request for a mistrial, but instructed the prosecutor to "preface your statements with `this is going to be the testimony' rather than your conclusions, as it appears." The State concluded its argument. Jackson's counsel made a brief opening statement, emphasizing that the prosecutor's statements had been a summarization and were not evidence.

Jackson complains that, because the prosecutor "irretrievably tainted the jury by arguing facts not in evidence," the court erred in denying his motion for mistrial. During opening statement, "the State's attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved by the State in support thereof." Tex. Code Crim. Proc. Ann. art. 36.01(a)(3) (Vernon Supp. 1995).

To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired, and have obtained a ruling upon the request, objection or motion. Tex. R. App. P. 52(a). The proper method of pursuing an objection until an adverse ruling is to (1) object; if the objection is sustained, (2) request an instruction to disregard; and, if a curative instruction is given, (3) move for a mistrial. Harris v. State, 784 S.W.2d 5, 12 n.4 (Tex. Crim. App. 1989). Jackson did not request a curative instruction, rather he moved directly for a mistrial. A presumption exists that an instruction would be efficacious unless consideration of the facts of the particular case suggests the impossibility of withdrawing the impression produced on the minds of the jury. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). Looking at the totality of the evidence, we do not find that the statements were so egregious that an instruction to disregard would not have cured any harm. See id.

Furthermore, the victim testified that Jackson had stated during the robbery, "You've seen my face. You know what I have to do." The prosecutor's statements were about evidence which was later admitted during trial. See Banks v. State, 643 S.W.2d 129, 133 (Tex. Crim. App. 1982), cert. denied, 464 U.S. 904, 104 S. Ct. 259, 78 L. Ed. 2d 244 (1983). We overrule point one.

ADMISSION OF EVIDENCE

In his second point, Jackson asserts that the court erred in overruling his objections to the introduction of certain exhibits because the proper foundation had not been laid. Massenburg testified that during the robbery Jackson selected certain semi-automatic weapons he wanted and told Massenburg to put them in a zippered athletic bag. Massenburg identified State's Exhibit 12 as a "Ruger P85" Jackson had taken, "which was identified by the serial number at the time I saw it." Jackson objected that the proper foundation had not been laid for admission of the Ruger. The court overruled the objection.

Massenburg identified State's Exhibit 13 as a gun taken that day. When asked how he could identify the weapon, he stated that "[t]he serial number on this particular weapon was identified as missing in the report." Jackson objected that the proper foundation had not been laid to show that Exhibit 13 was "definitely a pistol taken in the robbery."

Massenburg testified that, in the pawn shop business, guns are regulated by the "Tobacco and Fire Arms people" (ATF). Each time a gun is purchased or pawned, the transaction is entered into the "Tobacco and Firearms people's gun book by type of weapon, who made it, the serial number, what caliber, the person that either sold it or pawned it . . . ." He testified that the book must indicate every weapon in the store. If the gun is not in the store, the book must indicate who bought it, their address, "and all the pertinent information in order to trace that gun." Massenburg testified that, after the robbery, the guns remaining in the pawn shop were matched against the book. The missing guns "were these guns here, with the serial numbers that matched the Tobacco and Firearms people's [book], which we have to maintain."

Without objection, Massenburg identified "by sight and serial number" State's Exhibit 14 a "Mastrip A70" that was taken in the robbery. He identified State's Exhibit 15 as a "government model 45 caliber Colt, semi-automatic" that had been taken in the robbery. He testified that the serial number on the gun matched the serial number from the ATF book. Jackson objected for lack of a foundation.

Massenburg identified Exhibit 16 as a "Springfield Armory, Government Model 45 caliber, semi-automatic weapon." He recognized it because the gun had his initial on it and because the serial number matched the ATF list. Exhibit 17 was identified as a 9 millimeter semi-automatic Fratelli. Massenburg identified it as a weapon taken in the robbery by the serial number. The court overruled Jackson's objection that a proper predicate had not been laid.

Massenburg testified that, during the robbery, Jackson instructed him to remove two pair of handcuffs from an exhibit case. Jackson put one pair in his pocket and told Massenburg to put on the other pair. Massenburg refused. Massenburg identified Exhibit 18 as a pair of handcuffs identical to the ones taken in the robbery. He testified that he was shown the handcuffs at the police station after Jackson was apprehended, that the cuffs were Japanese-made and inexpensive, and that there were no serial numbers or other marks to distinguish the cuffs. The court overruled Jackson's objection that a proper predicate had not been laid.

An objection that the proper predicate has not been laid has been held to be too general to preserve a complaint. Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031, 106 S. Ct. 1238, 89 L. Ed. 2d 346 (1986); Jones v. State, 825 S.W.2d 470, 472 (Tex. App. Corpus Christi 1991, pet. ref'd). Counsel must inform the court just how the predicate is deficient. Bird, 692 S.W.2d at 70. Thus, nothing is presented for our review. See id.

Even if we assume that Jackson preserved his complaint, we do not find error. Jackson cites Rules 602 and 901 of the Rules of Criminal Evidence for the proposition that a witness must have personal knowledge of the facts elicited and that evidence must be authenticated or identified. See Tex. R. Crim. Evid. 602, 901. Evidence may be authenticated or identified by, among other ways, the testimony of a witness with knowledge or by distinctive characteristics taken in conjunction with the circumstances. Id. 901(b)(1), (4). Massenburg testified from personal knowledge to the facts of the robbery, and he identified the weapons by the serial numbers the pawn shop was required to keep. See id. Furthermore, Exhibit 14 was identified by Massenburg without objection as a weapon taken by Jackson during the robbery. Officer Lampkin thereafter testified that Exhibit 14 was recovered from the trunk of the Ford Probe that Jackson was driving. We overrule point two.

We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 12, 1995

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