Miller v. State, No. 05-03-01802-CR (TX 4/18/2005)

• Decision Date: 18 April 2005
• Docket Number: No. 05-03-01802-CR.,05-03-01802-CR.
• Parties: BARRY MILLER, Appellant v. THE STATE OF TEXAS, Appellee.
• Court: Texas Supreme Court

Page 1

Unpublished Opinion

BARRY MILLER, Appellant v.THE STATE OF TEXAS, Appellee.

No. 05-03-01802-CR.

Court of Appeals of Texas, Fifth District, Dallas.

Opinion Filed April 18, 2005.

Do Not Publish. Tex.R.App.P. 47.

On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court CauseNo. F-0334193-IM.

AFFIRM.

Before Justices BRIDGES, RICHTER, and LANG.

OPINION

Opinion By Justice LANG.

Barry Miller, appellant, appeals his robbery conviction.Appellant, was indicted for robbery, which was enhanced by two prior convictions.The jury found appellant guilty and, after hearing evidence on punishment, the jury found one enhancement paragraph true and assessed his punishment at 70 years of confinement.

Appellant brings four issues on appeal: (1) the evidence is legally insufficient; (2) the evidence is factually insufficient; (3)the trial court erred when it failed to charge the jury on the lesser included offense of theft; and (4)the trial court erred when it failed to instruct the jury on the use of extraneous offense evidence.

After reviewing appellant's claims, we conclude as follows: (1) the evidence is legally and factually sufficient to support appellant's robbery conviction; (2)appellant has not shown that the trial court erred when it failed to charge the jury on the lesser included offense of theft; and (3) assuming, without deciding, that the trial court erred when it failed to instruct the jury, sua sponte, on the use of extraneous offense evidence during the punishment phase, there was no harm.The trial court's judgment is affirmed.Tex. R. App. P. 43.2(a).

I.FACTUAL AND PROCEDURAL BACKGROUND

Cynthia Smith went to a Target store.As she entered the store, she observed a man wearing a tan sweater seated on a bench outside the entrance.Ms. Smith left Target, drove to the K-Mart across the highway, and observed the same man walking in the K-Mart parking lot.After parking her car in the K-Mart parking lot, Ms. Smith heard a woman yelling.Ms. Smith saw appellant, who was clutching something to his chest, run to a burgundy Honda Accord and get into the passenger side of a car, which drove away.She called the police on her cellular telephone.

Rebecca Plankenhorn, the victim, left K-Mart pushing a shopping cart containing her purchases.Her purse strap was wrapped around her wrist and the purse was placed in the child's seat of the shopping cart.As the victim was pushing the shopping cart to her car, appellant approached her from behind and yelled "get out of the way."He wrapped his arms around her, grabbed for her purse, and pushed her with his body, pinning her against the shopping cart.Appellant and the victim struggled briefly until the victim freed her arm from the purse strap.Appellant was laughing as he clutched the victim's purse and fled to a nearby car.Then the victim screamed.

Another witness, Scott Swan, while seated in his car in the K-Mart parking lot, heard the victim scream.He saw appellant, who was holding something, run to a maroon sedan with another person in the driver's seat.The maroon sedan drove away, but Mr. Swan followed it and memorized the license plate number.After obtaining the license plate number, Mr. Swan returned to the K-Mart parking lot.On his return, Mr. Swan made contact with Ms. Smith who was on the telephone with the police.There he used her cellular telephone to give the police the license plate number.

A third witness was Carolyn Owens.She observed appellant as she sat in her car in the K-Mart parking lot.She testified she saw appellant, who was wearing a beige shirt and khaki pants, run in front of her car clutching a purse or computer bag to his chest.

An Irving police officer went to the K-Mart parking lot and took the statements of the victim and the witnesses.Afterward, the victim's family took the victim to the hospital because she was suffering pain as a result of the robbery.

Meanwhile, another officer saw a maroon Honda matching the description and license plate number of the getaway car approximately two to three miles from the K-Mart.He stopped the car, waited for back-up, and arrested appellant and the driver of the car.One of the officers observed a purse on the front right-hand floorboard of the car.Inside the purse, the officer found the victim's driver's license.While he was being transported in the police car, appellant's actions and conversation with the officer were video recorded.After the officer read appellant his Miranda rights,¹he asked appellant who owned the watch he was wearing.Appellant responded that it was his and the officer stated that he intended to verify that.Appellant also told the officer he took the purse, but he did not knock the lady down.

The detective investigating the robbery prepared a photographic array of six persons, including appellant.He showed the array to the victim, Ms. Owens, and Ms. Smith.The victim was unable to identify her robber and Ms. Owens could not positively identify appellant.However, Ms. Smith positively identified appellant as the robber from the photographic array.Appellant, was indicted for robbery.The indictment was enhanced by a prior murder conviction.After the indictment, a second enhancement paragraph was added alleging a prior conviction for aggravated assault to a correctional officer.After the trial, the jury found appellant guilty of robbery.During the hearing on punishment, the State showed the jury the police car videotape of appellant.After the hearing on punishment, the jury found the enhancement paragraph alleging the prior murder conviction true, the enhancement paragraph alleging the prior conviction for aggravated assault to a correctional officer untrue, and assessed appellant's punishment at 70 years of confinement.

II.LEGAL AND FACTUAL SUFFICIENCY

In his first and second issues on appeal, appellant argues the evidence is legally and factually insufficient to support his robbery conviction.

A.Standards of Review

Differences exist between a factual sufficiency and legal sufficiency review of the evidence.Johnson v. State,23 S.W.3d 1, 7(Tex. Crim. App.2000).Further, it is beyond dispute, that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review.Id.

1.Legal Sufficiency of the Evidence

The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Young v. State,14 S.W.3d 748, 753(Tex. Crim. App.2000).A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment.King v. State,29 S.W.3d 556, 562(Tex. Crim. App.2000).The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence.SeeJones v. State,944 S.W.2d 642, 647(Tex. Crim. App.1996).In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted.SeeMargraves v. State,34 S.W.3d 912, 917(Tex. Crim. App.2000).Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency.SeeLockhart v. Nelson,488 U.S. 33, 41-42, 109 S.Ct. 285, 291, 102 L.Ed.2d 265(1988);Johnson v. State,967 S.W.2d 410, 411(Tex. Crim. App.1998).

2.Factual Sufficiency of the Evidence

There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?Zuniga v. State,144 S.W.3d 477, 485(Tex. Crim. App.2004).

A review of the evidence for factual sufficiency is guided by three principles.Cain v. State,958 S.W.2d 404, 407-08(Tex. Crim. App.1997).First, deference is given to the findings of the fact finder; the evidence will not be reweighed.Id. at 407.Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it.Id.However, the existence of contrary evidence is not enough to support a finding of factual insufficiency.SeeGoodman v. State,66 S.W.3d 283, 287(Tex. Crim. App.2001).Third, all of the evidence is viewed in a neutral light.Zuniga,144 S.W.3d at 481;seeCain,958 S.W.2d at 408;Vasquez v. State,67 S.W.3d 229, 236(Tex. Crim. App.2002);Johnson,23 S.W.3d at 11;Clewis v. State,922 S.W.2d 126, 129(Tex. Crim. App.1996).

The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact.Santellan v. State,939 S.W.2d 155, 164(Tex. Crim. App.1997).This standard is applied to both circumstantial and direct evidence.King v. State,29 S.W.3d 556, 565(Tex. Crim. App.2000);Kutzner v. State,994 S.W.2d 180, 184(Tex. Crim. App.1999);Smith v. State,895 S.W.2d 449, 452(Tex. App.-Dallas1995, pet. ref'd).Reversal for factual insufficiency occurs only when (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met.Zuniga,144 S.W.3d at 484-85;cf.Vasquez,67 S.W.3d at 236;Johnson,23 S.W.3d at 11;Clewis,922 S.W.2d at 129.

B.Applicable Law

A person commits robbery if he intentionally, knowingly, or recklessly causes bodily injury to another while committing theft.Tex. Pen.Code Ann. § 29.02(Vernon 2003& Supp. 2004-05).A person commits theft, if he unlawfully appropriates property with the intent to deprive the owner of that property.Tex. Pen. Code Ann. §...