Johnson v. State, 01-96-00816-CR

• Decision Date: 17 September 1998
• Docket Number: No. 01-96-00816-CR,01-96-00816-CR
• Citation: 981 S.W.2d 759
• Parties: Cordell JOHNSON, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 759

981 S.W.2d 759

Cordell JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 01-96-00816-CR.

Court of Appeals of Texas Houston (1st Dist.).

Sept. 17, 1998.

Karen Zellars, Spring, for Appellant.

John B. Holmes, Carmen Castillo Mitchell, Houston, for Appellee.

Before SCHNEIDER, C.J., and ANDELL and TAFT, JJ.

OPINION

TAFT, Justice.

A jury found appellant, Cordell Johnson, guilty of aggravated robbery. It also found true an enhancement allegation of a prior conviction for possession of a controlled substance, and assessed punishment at 45 years in prison. We address (1) why evidence of previous convictions was properly admissible; (2) why it was error to submit a jury instruction on flight; and (3) what is meant by "actual, not just theoretical" harm in reviewing jury charge error. We affirm.

Facts

Three saleswomen, Kim Huynh, Thu Huynh, and Binh Tram, were present when a man entered their jewelry store around 11:20 a.m. on December 26, 1994. Kim tried to assist the man, but he kept asking for the "custom man." A second man, appellant, entered, and Kim sent the first man to Thu. Kim stood face-to-face with appellant as he asked her about a late Christmas gift for his wife and some 24-karat jewelry. When Binh came out of the restroom, Kim, alarmed that the first man was refusing help, headed to the back of the store to use the telephone. The first man then approached Kim with a gun, while appellant put his hand on the counter and jumped over it. The two men took $85,000 in cash and merchandise. Kim began to follow the men after they left the store, but stopped when she saw a sheriff's patrol car arrive.

Binh had cleaned the display cases around 11:00 that morning as part of her normal routine of opening the store. Initial tests on latent finger and palm prints from the scene included appellant as a possible match. When appellant's prints were compared to those at the scene, nine prints were identified as appellant's. A detective showed a photo spread to Kim and Thu, and Kim identified appellant's photo. At trial, Kim identified appellant as the second customer. Neither Thu nor Binh could positively identify either of the two men.

Appellant, the only defense witness, testified he was in the store the day before, but was at a friend's house from 8:30 or 9:00 a.m. until 2:30 p.m. on the day of the robbery. He also testified he had tried unsuccessfully to have the friend subpoenaed to appear at trial.

Evidence of Previous Convictions

In his first point of error, appellant complains the trial court erred by admitting evidence of his previous convictions over his timely objection. See Theus v. State, 845 S.W.2d 874, 879-82 (Tex.Crim.App.1992). The court overruled appellant's pretrial motion to suppress evidence of prior convictions: two for theft, one for delivery of marihuana, and one for possession of cocaine. Appellant contends the probative value of the evidence did not outweigh its prejudicial effect. Appellant asserts that the prejudicial effect was extreme because the State used the convictions to damage his credibility, by showing he had used various aliases in the prior convictions, rather than using the evidence for its substance. Following denial of his motion to suppress, ¹ appellant took the stand at trial and offered the prior convictions into evidence on direct examination. The State claims appellant waived error, if any, because he first offered the evidence of which he complains. See Wilkerson v. State, 736 S.W.2d 656, 662 (Tex.Crim.App.1987). We agree.

A defendant has the right as trial strategy to introduce such evidence of his own volition, but the mere fact that a motion in limine has been overruled does not mean that the trial court may not change the ruling during the trial or that the State will actually offer the evidence. Gaffney v. State, 940 S.W.2d 682, 687 (Tex.App.--Texarkana 1996, pet. ref'd). The general rule is that a motion in limine does not preserve error. Id In Morgan v. State, 891 S.W.2d 733, 735 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd), we held that a defendant must testify to raise and preserve a claim of improper impeachment through prior convictions. In that case, the defendant did not testify after the ruling on the motion in limine. However, in the present case, appellant testified and introduced his prior convictions on direct examination, before the State could use them for impeachment. Thus, appellant waived error. Gaffney, 940 S.W.2d at 687.

Accordingly, we overrule appellant's first point of error.

Flight Instruction

In his second point of error, appellant contends the trial court erred by submitting a flight instruction that commented on the weight of the evidence. ² Appellant complains that, under the circumstances of the case, with appellant claiming an alibi defense and denying any involvement in the crime, the trial court's instruction constituted reversible error.

A. Preservation

The court charged the jury: "You are instructed that flight from the scene of an offense may be considered by you in determining the guilty knowledge of the defendant."

Appellant made the following objection to the charge:

Your Honor we do object. On the basis that the sentences is [sic] prejudicial because it is redundant. The jury already heard testimony about the two alleged perpetrators leaving. They are going to consider that to revest in the Court's charge seems to indicate that because two people left, they may be guilty of something and that's prejudicial in view of the rest of the charge.

The State argues appellant did not preserve error because (1) his objection did not comport to his complaint on appeal that the trial court improperly commented on the weight of the evidence; (2) and the objection was not in writing, as required by article 36.14 of the Code of Criminal Procedure. We disagree.

Although appellant's objection did not use the terms "comment on the weight of the evidence," it did call the trial court's attention to the charge indicating appellant may be guilty because he left the store. This captured the essence of appellant's complaint on appeal.

The writing requirement in article 36.14 is satisfied if the objection is dictated to the court reporter in the presence of the court before the charge is read to the jury. TEX.CODE CRIM. P. ANN. art. 36.14 (Vernon Supp.1998). Appellant complied with the article's provisions.

B. Error

The Code of Criminal Procedure requires that the charge delivered to the jury must not express "any opinion as to the weight of the evidence, not summing up the testimony [or] discussing the facts." Id. It is well-established that a jury instruction on flight is improper because it comments on the weight of the evidence. Santos v. State, 961 S.W.2d 304, 305 (Tex.App.--Houston [1st Dist.] 1997, pet. ref'd).

C. Harm

When assessing preserved jury charge error, the burden is on appellant to persuade this Court that the erroneous jury instruction was harmful. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994). Our evidentiary review is designed to " illuminate the actual, not just theoretical, harm to the accused." Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App.1985) (emphasis added). While the error here certainly had the potential to harm appellant, there is nothing in the record or in appellant's arguments, that persuades us any harm was actually realized in this case.

Turning to the Almanza factors to guide an analysis of the harm issue, we examine the nature of the error, ³ the entire jury charge, the state of the evidence (including the contested issues and weight of probative evidence), the argument of counsel, and any other relevant information revealed by the record of the trial as a whole.

1. Nature of the Error

What was stated in Santos is appropriate here, because the charge was exactly the same:

The jury charge stated, "You are instructed that flight from the scene of an offense may be considered by you in determining the guilty knowledge of the defendant." The error in an instruction on flight is that it constitutes a comment on the weight of the evidence. That is, it singles out a particular fact and instructs the jury it may consider that fact in determining an issue in the case, the guilty knowledge of appellant. In the form submitted, the instruction assumes the existence of flight. Even though the instruction constitutes an accurate statement of the law, it magnifies a particular fact giving unfair emphasis to that fact. By the trial court's instruction permitting the jury to consider flight, which only the testimony of State's witnesses had established, and which appellant had denied, the danger is that the jury would give more credibility and weight to the State's witnesses than to appellant.

961 S.W.2d at 306. The main difference between this case and Santos is that appellant presented an alibi defense rather than denying flight. Thus, the danger here is that the jury might have been influenced to reject appellant's alibi defense and find him guilty on the basis that the trial court apparently believed appellant had fled from the scene of the offense.

2. Entire Charge

In Santos, nothing else in the charge impacted the analysis. Id. By contrast, immediately after the flight instruction in appellant's jury charge, the trial court instructed the jury on the defense of alibi. Appellant argues it simply made no sense to give the flight instruction and follow it immediately on the succeeding page with the alibi instruction.

What is initially noteworthy about appellant's alibi instruction is that it is also an impermissible comment on the evidence. The instruction stated:

The defendant in this case has urged the defense of alibi, that is, that if the offense was committed, as alleged, the defendant was, at the time of the commission thereof, at another and different place from that at which such offense was committed and therefore, was not and could not have been the...