Parker v. State

• Decision Date: 14 June 1990
• Docket Number: No. C14-89-00012-CR,C14-89-00012-CR
• Parties: Christopher PARKER, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 795

792 S.W.2d 795

Christopher PARKER, Appellant, v. The STATE of Texas, Appellee.

No. C14-89-00012-CR.

Court of Appeals of Texas Houston (14th Dist.).

June 14, 1990.

Discretionary Review Refused

Oct. 3, 1990.

Henry L. Burkholder, III, Houston, for appellant.

Kimberly Aperauch Stelter, Houston, for appellee.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

CANNON, Justice.

This appeal arises from the conviction of Christopher Parker for aggravated robbery. With enhancement, Parker was sentenced by the jury to ninety-nine years confinement. Parker brings nine points of error on appeal. We find no reversible error by the trial court and affirm the conviction.

The appellant was convicted of committing an armed robbery at an Oshman's wholesale outlet in Houston, Texas on the evening of December 7, 1984. The complainant and principal witness was an Oshman's employee working at one of the cash registers. She testified that a man entered the store, selected a pair of sunglasses from the rack near the cash register, got in line, and when his turn came to pay, he pointed a gun at the complainant and demanded that she put all the money on the counter. She complied, the robber left and she ran to get the manager. She later reported to the responding police officer that the man was white, between the ages of 38 and 41, was 5'8"' to 6', weighed between 175 and 185 pounds, and had short brown hair and a mustache.

A few weeks later, the complainant identified the appellant from a five picture photospread. At trial, she testified that he was neatly dressed in a dress shirt and slacks at the time of the robbery, which lead her initially to believe that he was a businessman.

The complainant was the only identifying witness at the trial. The State concedes that the complainant's testimony on the issue of identity was aggressively undermined by the cross-examination. Consequently, the State was permitted to introduce evidence of other similar crimes where the victims had identified the appellant as the robber.

The appellant's defense was based on mistaken identity. Testimony of the appellant's girlfriend and another friend was introduced regarding an FBI investigation of a suspect who was allegedly similar to the appellant in appearance. The girlfriend testified that the appellant regularly left Houston and traveled to Tyler to spend the weekend with her. She further testified that on December 13, 1984, six FBI agents pulled her over in Tyler and set up surveillance on her apartment for three days in order to arrest the appellant. Two of the agents showed the girlfriend six photos of a man committing two separate bank robberies in Dallas. She testified that although there was a similarity in appearance, the person in the photos was not the appellant. She testified that she attempted to get the photos from the FBI in preparation for the appellant's trial, but was unsuccessful. The other acquaintance of the appellant that testified in his behalf stated that the photos of the Dallas bank robberies were also shown to her, and that she thought the person depicted in the photos resembled but was not the appellant.

In the appellant's first and second points of error, he contends that the trial court committed reversible error in barring the appellant from voir diring a venireman and voir diring the entire venire panel on the range of enhanced punishment where the indictment returned against the appellant contained a single enhancement paragraph. The Court of Criminal Appeals has consistently held that the trial court has wide discretion over the course of the voir dire of a jury panel. Hughes v. State, 562 S.W.2d 857, 862 (Tex.Crim.App.1978), cert. denied, 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 250 (1979); Abron v. State, 523 S.W.2d 405, 408 (Tex.Crim.App.1975); Hernandez v. State, 508 S.W.2d 853, 854 (Tex.Crim.App.1974). There is no abuse of discretion unless the trial court prohibits inquiry about a proper area. Clark v. State, 608 S.W.2d 667, 670 (Tex.Crim.App.1980); Ryan v. State, 635 S.W.2d 159, 161 (Tex.App.--Houston [1st Dist.] 1982, no pet.). Additionally, questions asked in an improper form may be disallowed. Hughes, 562 S.W.2d at 862; Hernandez, 508 S.W.2d at 854. The appellant must show that an injury constituted reversible error once he establishes that a restriction of voir dire occurred. Hernandez, 508 S.W.2d at 854; De La Garza v. State, 650 S.W.2d 870, 877 (Tex.App.--San Antonio 1983, pet. ref'd).

The appellant's first point of error involves the attempt to rehabilitate a particular juror who was struck for cause by the State after he stated that under no circumstances could he render a verdict for ninety-nine years or life. The trial court disallowed the appellant's questioning of the prospective juror on the grounds that the hypothetical situation presented was improper. The appellant's hypothetical question depicted a defendant who has been convicted several times, thus involving the issue of enhancement. The questions of the voir dire at that point only involved the range of punishment of five years to life or ninety-nine years for the offense of aggravated robbery. The appellant could only inquire as to the prospective juror's ability to consider the maximum for the worst aggravated robbery imaginable, inquiry into whether the prospective juror could consider the maximum in the case of a repeat offender was improper. It would not have rehabilitated the prospective juror on the issue of whether he could follow the law in regard to the range of punishment for aggravated robbery with no enhancement. The prospective juror in question was properly struck for cause because he made it clear that he could not follow the law on the range of punishment. Moore v. State, 542 S.W.2d 664, 669 (Tex.Crim.App.1976) cert. denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977); Stanton v. State, 747 S.W.2d 914, 921 (Tex.App.--Dallas 1988, pet. ref'd). We find no error in the trial court's ruling and overrule the first point of error.

The appellant's second point of error involves his contention that he was prevented from questioning the entire panel about their opinions on the range of punishment with enhancement. The record reflects that he was not prevented from questioning about enhancement, only that his particular question was disallowed as improper. The appellant never offered a proper question to determine if the members of the panel could consider the full range of punishment with enhancement; i.e. fifteen years to life if there was one prior conviction, or twenty-five years to life if there were two prior convictions. The appellant's proposed question involved the range of five years to life for a defendant with prior convictions, which is a misstatement of the law and is not proper voir dire. Hughes, 562 S.W.2d at 863; Hernandez, 508 S.W.2d at 854. Therefore, we find no error by the trial court in this instance and overrule the second point of error.

The appellant claims in his third point of error that the trial court committed reversible error in overruling the appellants motion for mistrial because the complainant told the jury that the appellant had committed ten other robberies. During the defense counsel's cross examination of the complainant, he asked her if she had spoken with other named people who were the complainants in other aggravated robbery cases pending against the appellant. She did not know the people by name as the defense counsel referred to them, but she did state that she had spoken to ten other people who had been robbed. The defense counsel then approached the bench and requested a mistrial. This was denied, but the court did instruct the witness to refrain from mentioning other offenses with which the appellant was charged. The record reflects that the appellant did not move to strike the complainant's answer, nor did he request an instruction to the jury to disregard the answer. Later, evidence was introduced of the appellant's indictment for other robberies, and witnesses to the other robberies testified in the trial below on the issue of identity.

From the outset, we must note that the appellant did not properly preserve error when objecting to the introduction of evidence. To preserve error, you must 1) make an objection, 2) request an instruction to disregard, and 3) move for a mistrial. Coe v. State, 683 S.W.2d 431 (Tex.Crim.App.1984); Melancon v. State, 690 S.W.2d 78 (Tex.App.--Houston [14th Dist.] 1985, no pet.). The appellant did not make an objection to the complainant's statement, and did not ask the trial court to instruct the jury to disregard the statement. Defense counsel disregarded the rules on preserving error. Penry v. State, 691 S.W.2d 636, 649-50 (Tex.Crim.App.1985) cert. denied 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986). Even if properly preserved, we find that the error would be harmless, as properly introduced evidence of the other robberies came in later. Siqueiros v. State, 685 S.W.2d 68, 71 (Tex.Crim.App.1985); Woolls v. State, 665 S.W.2d 455 (Tex.Crim.App.1983), cert, denied, stay denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 889 (1984); Withers v. State, 642 S.W.2d 486 (Tex.Crim.App.1982); Carr v. State, 726 S.W.2d 608, 610 (Tex.App.--Houston [14th Dist.] 1987, pet. ref'd). Therefore, the third point of error is overruled.

In the fourth, fifth, and sixth points of error the appellant alleges the trial court erred in permitting the State to introduce evidence of three other extraneous aggravated robbery offenses over the appellant's objection. The extraneous offenses came in after the complainant was impeached on her identification of the appellant, by suggesting that the complainant was not accurate in her estimation of the robber's height, did not accurately describe facial scars, did not identify his voice, and did not know the color of his eyes. Her height and age description of the appellant was further impeached...