Ronnie Ray Barnes v. State ( 1999 )

Nos. 04-98-00514-CR & 04-98-00515-CR

Ronald Ray BARNES, Appellant

v.

The STATE of Texas, Appellee

From the 226th Judicial District Court, Bexar County, Texas Trial Court Nos. 97-CR-4805 and 97-CR-4806 Honorable James E. Barlow, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: August 18, 1999

AFFIRMED

Ronald Ray Barnes was charged with aggravated robbery with a deadly weapon in two indictments. The cases were tried together, and a jury found Barnes guilty in each case. The trial court assessed punishment at twenty-five years imprisonment in each case, to run concurrently. On appeal, Barnes contends the evidence was legally and factually insufficient and the trial court erred by failing to hold a separate hearing on his motion to suppress the victims' in-court identifications, failing to hold a separate punishment hearing, failing to grant his motion for mistrial, and interrupting counsel while he was making an objection. We affirm.

Sufficiency of the Evidence

In his second point of error Barnes contends the evidence is legally and factually insufficient to support the conviction. We disagree.

Standard of Review

In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In reviewing for factual sufficiency, however, we view all of the evidence "without the prism of 'in the light most favorable to the prosecution' and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (quoting Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd, untimely filed).

Discussion

Earl Glosson testified that on May 1, 1997, he was visiting San Antonio, where he had lived for many years. He spent much of that day at the 19th Hole, a convenience store and gathering place, where he and old friends talked and played cards and dominoes. Ronald Barnes, whom Glosson did not know, but recognized from the neighborhood, stopped by the 19th Hole several times during the day to get a beer, talk to somebody, and then leave. Thelma Nious met Glosson at the 19th Hole at about 5:30, after she got off work. Nious and Glosson testified they stayed there until about 10:00 p.m., talking with friends. Although people came and went, there were usually about fifteen people there. Barnes arrived during the evening and started singing to the daughter of one of Glosson's and Nious' friends. Barnes had a distinctive voice, and both Glosson and Nious noticed it. The girl asked Barnes to leave her alone, and Barnes later left.

When Nious and Glosson left the 19th Hole they picked up some chicken and drove to the motel where Glosson was staying. Nious, who uses a cane, pulled into the handicapped space at the back of the motel. As Glosson opened his door to get out of the car, a man walked up to him, put a gun to his head and told him he would kill him if Glosson didn't give him everything he had. Glosson gave the man his watch, his ring, and his wallet. The man then went around to the driver's side of the car, put the gun to Nious' temple, took her jewelry and car keys, and ran off. Both Nious and Glosson testified they saw the man clearly at the time of the robbery, and they identified Barnes in court as the man who robbed them.

After the robber fled, Nious and Glosson reported the robbery to the motel manager, who called the police. They gave the officer a description and said they recognized him as the person who had been singing to their friend's daughter earlier in the evening. Nious later learned the man's name was "Ronnie" Barnes, and told police. A police detective prepared a photographic lineup, which was presented separately to Glosson and Nious. Each picked Barnes without hesitation. This evidence supports a rational finding, beyond a reasonable doubt, that Barnes robbed Nious and Glosson at gunpoint. See Jackson, 443 U.S. at 319.

Barnes argues his alibi evidence created such doubt about his guilt that the jury's decision is so against the great weight of the evidence to be clearly wrong and unjust. Edith Crocker testified she was on duty at a Diamond Shamrock across town on the night of May 1, 1997, and that Barnes was at the store working on his car from about 9:30 to at least 10:45 that night. However, Crocker also testified she is on extensive medication that causes her to have memory lapses and to get dates and times confused. Nannette Colberg, Crocker's housemate, testified she went to the Diamond Shamrock that night to pick Crocker up, mistakenly believing Crocker got off work at 10:00, and saw Barnes there from 9:30 to 11:30. In rebuttal, the State introduced excerpts of a letter Barnes wrote the judge in which he said he was at his house the night of May 1, 1997, with three friends, taking care of his disabled father.

In conducting a factual sufficiency review, we must be deferential to the jury's assessment of credibility and we are not free to reweigh the evidence merely because we might reach a different result. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In this case, the jury in effect had to decide whether Glosson and Nious misidentified Barnes or whether Crocker and Colberg were mistaken about the date or time they had seen Barnes. We do not find the jury's resolution of this question was so contrary to the great weight of the evidence to be manifestly unjust and we will not interfere with its decision. See Cain v. State, 976 S.W.2d 228, 234-35 (Tex. App.--San Antonio 1998, no pet.); Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.--El Paso 1996, pet. ref'd); De Los Santos v. State, 918 S.W.2d 565, 569 (Tex. App.--San Antonio 1996, no pet.). We therefore overrule Barnes' second point of error.

In-Court Identification

In his first point of error, Barnes argues reversal is required because the trial court failed to hold a hearing, outside the presence of the jury, on his motion to suppress Nious' and Glosson's in-court identifications of him. We disagree.

Although it is advisable, a trial court is not required to hold a hearing on admission of an in-court identification. See Jones v. State, 685 S.W.2d 86, 88 (Tex. App.--Beaumont 1984, no pet.); Garcia v. State, 649 S.W.2d 70, 71 (Tex. App.--Corpus Christi 1982, no pet.). We review the court's decision not to hold a pretrial hearing for abuse of discretion. See Calloway v. State, 743 S.W.2d 645, 649-50 (Tex. Crim. App. 1988); Gray v. State, 797 S.W.2d 157, 159 (Tex. App.--Houston [14th Dist.] 1990, no pet.). To complain on appeal of the court's failure to hold such a hearing, defendant must object to the identification evidence at trial and the record must show, by cross-examination, bill of exceptions, or offer of proof, evidence regarding the validity of the identification. See Gray, 767 S.W.2d at 160; Jones, 685 S.W.2d at 88; Gates v. State, 643 S.W.2d 183, 184 (Tex. App.--Tyler 1982, no pet.).

Barnes filed a pretrial motion to suppress any in-court identification on the ground that the photographic lineup was impermissibly suggestive. The judge did not hear or rule on the motion at the pretrial hearing, instead indicating he would decide the issue when it arose at trial. Thelma Nious testified she got a good look at the robber when he had his gun pointed at Glosson and, at the State's request, she identified Barnes as the man she saw. Barnes did not object. He therefore failed to preserve any error with respect to Nious' in-court identification. See Calloway, 743 S.W.2d at 650; Tuffiash v. State, 948 S.W.2d 873, 876 (Tex. App.--San Antonio 1997, pet. ref'd) ; Jones, 685 S.W.2d at 88.

Glosson testified he "got a real good look at" the man who robbed them, and the State asked if the man was in the courtroom. Barnes' counsel then stated, "I'm going to object on that motion," but did not reurge his request for a hearing outside the presence of the jury. The court overruled the objection and Glosson identified Barnes. Assuming Barnes' objection was sufficient, he has failed to bring forward a record showing he was harmed.

Glosson later testified a police officer showed him some photographs, without in any way suggesting which picture to select. He testified he selected the photograph of Barnes with no hesitation, he had no doubt in his mind at the time that he picked the right person, and he was equally positive at trial. Detective Jeff Smith testified a photographic lineup was prepared at his request and stated the pictures of the individuals in the lineup looked similar, and the subjects were around the same age and height and the same race. Barnes did not attempt to establish through cross-examination of any of these witnesses or through an offer of proof or bill of exceptions that the photographic identification was impermissibly suggestive or that it tainted Glosson's in-court identification of Barnes. We therefore overrule Barnes' first point of error. See Gray, 797 S.W.2d at 160; Jones, 685 S.W.2d at 88.

Punishment Hearing

Barnes next complains the trial court erred by failing to provide him a full punishment hearing. We hold Barnes failed to preserve error.

After the jury's guilty verdict, the court ordered a presentence investigation and set the matter for a punishment hearing. At the beginning of the hearing, Barnes' attorney told the court Barnes was feeling ill and wanted to postpone the hearing. While the judge was discussing possible dates with counsel, Barnes asked and was granted permission to speak to the court. Barnes told the court he was not guilty, his witnesses gave him a solid alibi, something was wrong because the police knew the verdict before he did, the jury was biased, and twenty-five years of his life were at stake. The judge then tried again, unsuccessfully, to reach agreement with counsel about a date to reset the hearing. Barnes began speaking again, and the judge asked Barnes who had told him he was going to receive a twenty-five year sentence. The attorneys explained that at defense counsel's request the State said that if asked, it would recommend twenty-five years. The judge said that is what he thought "it's worth" and told Barnes he had a terrible record, with over seventy arrests. Barnes asked to "speak to those," and the court allowed him to. The judge then indicated his intent to sentence Barnes and asked counsel if there was anything they wanted to say about why he should not sentence him. Counsel did not respond, although Barnes continued to argue about his criminal record with the judge. The court then sentenced Barnes, told him he would be given credit for the time he was in jail, and advised him of his right to file a motion for new trial and notice of appeal. Barnes again urged his innocence, his attorney assured him an appeal would be filed, and the proceedings were adjourned.

In his motion for new trial Barnes contended the court erred by failing to provide a full punishment hearing. Counsel testified at the hearing on the motion and stated he did not have other witnesses to present; however, there was more testimony he wanted to elicit from Barnes and he wanted to argue a number of points raised in the PSI. No evidence was presented as to the substance of the testimony and argument Barnes alleges he was precluded from presenting.

By setting the matter for a punishment hearing, the trial court provided Barnes an opportunity to present evidence regarding sentencing. At Barnes' request, the court allowed him to speak (although he was not sworn), and the judge and Barnes engaged in an extended discussion about the jury's finding of guilt and the matters reflected in the PSI. And counsel had an opportunity, before the court imposed sentence, to object that he had more evidence to present. By failing to contemporaneously object, Barnes failed to preserve error. Tex. R. App. P. 33.1; see also Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) (error is preserved by raising it in a motion for new trial only in those "rare circumstances" when a defendant is "sentenced without being given an opportunity to present evidence prior to sentencing" and where he "had no opportunity to object until after the trial court's action was taken"). Moreover, Barnes failed to apprise the court at the motion for new trial hearing of what additional evidence would have been presented. See Salinas v. State, 980 S.W.2d 520, 521 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd); Hardeman v. State, 981 S.W.2d 773, 774 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd). We overrule the third point of error.

Motion for Mistrial

In his fourth point of error, Barnes contends the court erred by denying him a mistrial. We disagree.

Any error in asking an improper question is generally rendered harmless by instructing the jury to disregard the question. Ransom v. State, 789 S.W.2d 572, 585 (Tex. Crim. App. 1989), cert. denied, 497 U.S. 1010 (1990). "To cause a reversal the question must be obviously harmful to the defendant." Gonzales v. State, 685 S.W.2d 47, 49 (Tex. Crim. App.), cert. denied, 472 U.S. 1009 (1985).

During cross-examination of Edith Crocker, the following exchange occurred:

State: And are you aware of the fact he's given different accounts of that day?

Crocker: No, sir, I'm not.

State: That he's given a sworn statement saying that he was at either place.

Defense counsel objected, "[t]hat's not in evidence." The court sustained the objection, instructed the jury to disregard, and denied a motion for mistrial. On appeal, Barnes argues he was harmed by this reference to statements not in evidence because it violated his right not to testify, the statement referred to was hearsay, and the question was improper impeachment. We disagree. The statement referred to in the prosecutor's question was later correctly admitted as rebuttal impeachment evidence, over Barnes' objection that it violated his right against self-incrimination and was hearsay. Barnes has not shown any harm, and we overrule his fourth point of error.

Interruption of Counsel

Barnes' final point of error states, "[t]he trial court erred by not allowing trial counsel to finish his objection and admitting statements by the defendant into evidence." However, Barnes does not argue the statements should not have been admitted. This point is therefore not properly presented for our review. See Tex. R. App. P. 38.1(h). Nevertheless, we hold the statements were properly admitted and Barnes failed to preserve error with respect to the trial court's interruption.

The statements at issue are excerpts from a notarized letter Barnes sent the trial judge and filed with the district clerk, in which Barnes claimed to have been at home at the time of the crime. The statements directly contradicted the testimony of Barnes' alibi witnesses. Before the statements were admitted, the court held a hearing outside the presence of the jury during which Barnes objected on the grounds the statements were hearsay and their admission violated his right against self-incrimination. The court ruled them admissible. In the presence of the jury, the person who notarized the letters identified the letter and authenticated the signature as Barnes'. Before parts of the letter were read, Barnes' counsel stated, "We renew our objections and --." The court responded, "All right. It's overruled."

Barnes' statements were admissible. They were written verbal expressions, made by a party and offered against that party, and they were not offered for the truth of the matter asserted. See Tex. R. Evid. 801(a), (d), (e)(2)(A). They were not hearsay. Id. Likewise, admission of the statements did not violate Barnes' privilege against self-incrimination. The Fifth Amendment privilege protects only compelled self-incrimination and is not violated unless the testimony is officially coerced. United States v. Washington, 431 U.S. 181, 187-88 (1977). There is no contention or evidence that Barnes' letters to the court were anything other than voluntary.

Barnes also contends "the trial court denied [his] substantial right to have the timely objections heard without interruption" and he was injured "by having the jury see and hear the trial judge abruptly interrupt trial counsel" and "[t]he jury could have interpreted this type of behavior as hostile or disrespectful of trial counsel's skills or case." However, Barnes did not object to the conduct of the trial court and did not make a proffer or bill of exceptions regarding what else counsel wanted to say, and thus failed to preserve error. Tex. R. App. P. 33.1, 33.2. We overrule Barnes' fifth point of error and affirm the judgment.

Sarah B. Duncan, Justice

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