Opinion
NO. 01-10-00925-CR
02-16-2012
LONNIE DAWYNE WILSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1254215
MEMORANDUM OPINION
Lonnie Dawayne Wilson was convicted by a jury of aggravated robbery, based on a finding that he exhibited a deadly weapon. The jury assessed punishment at 20 years' confinement. In two issues, Wilson contests (1) the sufficiency of the evidence that he exhibited a gun and (2) the trial court's denial of his motion for a mistrial based on the State's closing argument. We affirm.
TEX. PENAL CODE ANN. § 29.03 (West 2011).
Background
Wilson admits that he robbed the victim, Juana Mendoza-Rodriguez. The sole substantive fact issue he contests is whether he had a gun at the time of the robbery.
Mendoza-Rodriguez was confronted by Wilson at her apartment complex as she was getting out of her van:
Q. Okay. All right. Now, when you saw the man standing there, at some point -- I mean, we sometimes get out of the cars and see people near us. At some point, did you realize that he may have another purpose in mind?On cross-examination, Mendoza-Rodriguez said that Wilson never said anything like "I'm going to kill you" or "I'm going to shoot you." She also said she was "pretty scared" and the whole incident only took a few seconds.
A. Yeah. Because when I turned around and saw him, I had eye contact with him, but when I looked down, he had a gun and he went like this, but I don't know what kind of gun, but I know it was a gun because he went like this like this, you know (indicating).
Q. Well, let's talk about this. What color was the gun?
A. I don't remember.
Q. Was it light or dark?
A. It was dark.
Q. It was a dark-colored gun?
A. Yes, sir.
Q. Okay. And did it have a cylinder or did it have a slide to pull back?
A. I remember he went like this. Because he had the gun like this and he went like this (indicating).
Q. Now, when you say "like this," for purposes of the record, you are pointing your finger down and with your other hand you are pulling it up?
A. Yeah.
. . . .
A. But, first of all, the first thing he told me, and I looked at his eyes, I had eye contact, he told me: Shut the fuck up. That's what he told me.
. . . .
Q. [State] So, he said that and then he slid the gun back?
A. Yes, sir.
Q. Did it make a noise like that (indicating).
A. Yes.
Q. Now, ma'am, are you familiar with guns?
A. No, sir.
Q. Is that a noise that you are used to hearing?
A. No, sir.
Q. Does that stick in your mind?
A. Yes, sir.
. . . .
Q. [State] So, he took -- it was your purse and your cell phone?
A. My purse and my cell phone and he took the keys.
Q. Were the keys in your hands?
A. Yes, sir.
Q. He took those from you?
A. Yes, sir.
Q. Did he talk to you any more?
A. No.
Q. What did he do next?
A. Next, he told me: Go where you were going to go, but don't look back.
Mendoza-Rodriguez then went to her apartment and told her husband Julio Casillas she had been robbed. After Julio called 9-1-1, he went outside in time to see someone get into his wife's van and drive away. Casillas then got into his car and gave chase. When Casillas caught up with Wilson, he pulled in front of the stolen van and disabled it. Wilson then jumped out and ran, and Casillas eventually lost sight of him. Casillas testified that he never saw a gun while Wilson was fleeing.
The Harris County Sheriff's Department arrived at the scene and set up a perimeter. Wilson was discovered hiding under a debris pile, without a gun. Deputies, who searched the area for some 30 minutes, found no gun. Sergeant Joe Halm testified that the storm drains, trash piles, dumpsters, and shrubbery made it like "trying to find a needle in a haystack."
Discussion
Sufficiency of the evidence
Wilson's first issue contends that the evidence is legally insufficient to support his conviction because, notwithstanding Mendoza-Rodriguez's testimony that she saw a gun in his hand and saw and heard him pull back the gun's slide, no rational juror could have found that he used a gun.
We must apply the Jackson v. Virginia sufficiency standard of review to complaints styled as legal or factual sufficiency challenges concerning the elements of a criminal offense. Jackson, 443 U.S. 307, 320, 99 S. Ct. 2781, 2789 (1979); see Ervin v. State, 331 S.W.3d 49, 52-56 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 894-913 (Tex. Crim. App. 2010)). Under the Jackson standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact-finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 317, 319, 99 S. Ct. 2788, 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). If the evidence is legally insufficient, then the "only proper verdict" is acquittal. Tibbs v. Fla., 457 U.S. 31, 41-42, 192 S. Ct. 2211, 2218 (1982).
Our role is that of a due-process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). It is the function of the trier of fact to resolve any conflict of fact, to weigh any evidence, and to evaluate the credibility of any witnesses. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore resolve any inconsistencies in the evidence in favor of the verdict, and "defer to the jury's credibility and weight determinations." See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).
Under the Jackson standard, any conflicts or inconsistencies in the witness's testimony, including any conflicts regarding the weight of the evidence, were exclusively within the jury's province to resolve. See Dewberry, 4 S.W.3d at 740; Marshall, 210 S.W.3d at 625 (requiring appellate courts to resolve any inconsistencies in evidence in favor of verdict and "defer to the jury's credibility and weight determinations"). Viewing the evidence in the light most favorable to the verdict, we conclude that a rational fact-finder could have found, beyond a reasonable doubt, that Wilson exhibited a gun during the offense, even though the gun was never recovered. See Brown v. State, 212 S.W.3d 851, 861-62 (Tex. App.—Houston [1st Dist.] 2006, pet. refd). Therefore, we hold that the evidence is sufficient to support appellant's conviction.
We overrule Wilson's first issue.
Discussion of parole during closing argument
In his second issue, Wilson contends the trial court erred in denying his request for a mistrial. Wilson stipulated to prior convictions for burglary and evading arrest. During closing argument, Wilson's lawyer argued for the minimum sentence in the aggravated robbery case, based on the punishment from the prior convictions:
That's what you know about him. That's the extent of his history. A burglary of habitation, a felony at the age of 18; one misdemeanor two years later. And he's already done seven years in prison for that at age of 22.In response, the State commented on Wilson's previous sentence: "When he was arrested in 2008, he got sentenced to seven years in the Texas Department of Criminal Justice. I don't want to do the math for anybody here, but it hasn't been seven years since 2008." Wilson's lawyer objected, which was sustained, moved to instruct the jury to disregard the State's argument, which was sustained, and moved for a mistrial, which was denied.
A trial court's denial of a motion for mistrial is reviewed under an abuse-of-discretion standard. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Mistrial is appropriate for only highly prejudicial and incurable errors. Id. It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile. Id. Assuming, without deciding, that the State's argument was not invited, we hold that the trial court's instruction to disregard cured any error. See Helleson v. State, 5 S.W.3d 393, 397-98 (Tex. App.—Fort Worth 1999, pet. ref'd).
We overrule Wilson's second issue.
Conclusion
We affirm the judgment of the trial court.
Jim Sharp
Justice
Panel consists of Justices Jennings, Sharp, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).