Michael Lynn Bradden v. State ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00346-CR

No. 10-03-00347-CR

Michael Lynn Bradden,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the Criminal District Court

Dallas County, Texas

Trial Court Nos. F03-00097-JH and F03-00303-JH

MEMORANDUM Opinion

            Michael Lynn Bradden was tried by a jury for robbery and evading arrest.  The jury found him guilty and assessed punishment of life imprisonment for the robbery and twenty years’ confinement for the offense of evading arrest.  Bradden brings these issues on appeal: (1) the evidence was legally and factually insufficient to prove him guilty of robbery; (2) the evidence was legally and factually insufficient to prove him guilty of evading arrest or detention; and (3) the trial court erred in allowing the state to impeach him with evidence of his 1972 convictions for robbery pursuant to Texas Rule of Evidence 609.

          We will overrule the issues and affirm the judgment

BACKGROUND

          Anna Lujan and Catherine Pronske, employees at Maxwell Books, opened the bookstore at 9:00 am on August 10, 2002.  Lujan testified that she noticed a “shifty” black male standing outside the store and made eye contact with him.  Shortly afterward, a black male wearing a mask entered the store, pointed a gun at the two women, and demanded money.  According to the women, the mask appeared to be a black stocking-type cap pulled down below the man’s nose with holes cut out for his eyes.  The robber wore dark pants and a distinctive diamond-patterned shirt, which Lujan recognized as the same shirt worn by the “shifty” man outside the store.  Lujan and Pronske emptied the cash registers and the robber stuffed the paper money into his pants pockets.  The robber demanded the coins as well.  As Lujan handed the robber the coins in Maxwell Bookstore bags, a customer and his son entered the store.  The robber told the customer “don’t even think about it” and left the store. Pronske called 9-1-1, and Lujan and the customer saw the robber get into a four-door brown car that displayed a handicapped license plate.

          Officer Smith received a dispatch regarding a black male suspect driving a brown four-door vehicle with handicapped license plates.  Smith, driving an unmarked police vehicle, observed a brown four-door vehicle at an intersection with a four-way stop.  The black male driver of the car indicated that Smith should pull through the intersection, but Smith motioned for the other driver to go first.  Smith testified that he got a good look at the driver at this time.  Smith saw that the vehicle matched the description of the suspect’s vehicle, including handicapped plates.  Smith followed the vehicle and activated his lights and siren.  The vehicle drove onto a dead-end street.  The driver abandoned the vehicle and jumped over a fence.  Smith secured the vehicle, where he found a stocking mask and a large amount of change inside Maxwell Books bags.

          Officer Thomas responded to Smith’s dispatch.  He testified that as he turned into the alleyway adjacent to the fence that the suspect had jumped, a man matching the robber’s description almost ran into his patrol car.  The man was wearing a diamond-patterned shirt.  Thomas pursued the man through the neighborhood. Several residents pointed to where the suspect had jumped a fence into the backyard of a residence.  Through the fence, Thomas saw Bradden sitting on the patio, not wearing a shirt.  When backup arrived, Thomas handcuffed Bradden.  Police found the diamond-patterned shirt in the next yard. The owner of the house told the officers that she had never seen Bradden before.  The officers put the shirt over Bradden’s head and walked him through the house.  Smith identified Bradden as the driver who had abandoned the vehicle and jumped the fence.

          The car was not registered to Bradden.  Thomas testified that he found a gun (a BB gun) just outside the first fence the suspect had jumped.  Bradden testified in his own defense.  According to Bradden, he was walking for exercise wearing only a pair of black pants and his house shoes.  He was in an alley near his home when a police car stopped and the officer asked him for identification.  He admitted that he had crossed the yard, but claimed that the gate was unlocked.  He testified that the police arrested him, placed someone else’s shirt over his head, and walked him through the house. He admitted to four previous convictions, two for robbery and two for aggravated robbery.

Legal and Factual Sufficiency

          Bradden argues that the evidence is legally and factually insufficient to support either his conviction for robbery or his conviction for evading arrest.  When reviewing the legal sufficiency of the evidence, we view all of the evidence 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.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979).  We review factual sufficiency by considering all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. April 21, 2004).

          Bradden argues that a rational juror could not have found that the State proved, beyond a reasonable doubt, that Bradden was the robber.  Specifically, Bradden notes that the police never found the paper money taken from the store, no fingerprints connected him to any of the evidence, and the DNA evidence was not conclusive.  The state may prove identity with circumstantial evidence.  Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Wilson v. State, 9 S.W.3d 852, 855 (Tex. App.—Austin 2000, no pet.).  Smith identified Bradden in court as the driver of the vehicle he pursued.  He identified the shirt as the shirt Bradden was wearing at the time.  He identified the mask and Maxwell Books bags found in the vehicle Bradden abandoned. Thomas identified Bradden as the man he encountered in the alleyway wearing the diamond-patterned shirt.  Lujan identified Bradden as the man she had seen outside the bookstore, and identified the mask and shirt worn by the robber.

          Considering all of the evidence in the light most favorable to the verdict, the jury could rationally have found beyond a reasonable doubt that Bradden was the robber.  Jackson, 443 U.S. at 318-319, 99 S. Ct. at 2788-89.  The evidence is legally sufficient.  Considering all of the evidence in a neutral light, we cannot say the jury was not rationally justified in finding that Bradden was the robber.  Zuniga, 2004 WL 840786, at *7.  The evidence is factually sufficient.  We overrule this issue.

          Bradden argues that the evidence was legally and factually insufficient to support his conviction for evading arrest. Specifically, he contends that the evidence is insufficient to prove that he was the operator of the vehicle and that he knew that Smith was a police officer.  Smith identified Bradden both at the time of the arrest and in court as the driver of the vehicle.  He testified that when he turned on the lights and siren of his unmarked police car, Bradden continued to travel down several residential streets, stopping only when he reached a dead end.  Smith testified that Bradden bailed out of the car and escaped by jumping a nearby fence. These events were videotaped from Smith’s vehicle, and the jury viewed the videotape.  The jury could rationally have found beyond a reasonable doubt that Bradden was the driver of the vehicle.  The jury could also have rationally determined beyond a reasonable doubt that Bradden knew the driver of the vehicle pursuing him was a police officer and that Bradden took evasive action.  Finding the evidence legally and factually sufficient, we overrule this issue.

Impeachment

          Bradden argues that the trial court erred in allowing the State to impeach him with evidence of his 1972 convictions for robbery. The State provided pre-trial notice that it may use two 1972 convictions for robbery, a 1978 conviction for aggravated robbery, and two 1979 convictions for aggravated robbery to impeach Bradden. Texas Rule of Evidence 609(b) prohibits use of evidence of a conviction to impeach a witness if more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction substantially outweighs its prejudicial effect. Tex. R. Evid. 609(b).  The trial court overruled Bradden’s objection to the use of the 1972 conviction.

          The Court of Criminal Appeals has identified five factors which the court should consider in balancing probative value against prejudicial effect: (1) the impeachment value of the prior conviction; (2) the temporal proximity of the prior conviction; (3) the similarity between the past crime and the offense being prosecuted; (4) the importance of the defendant’s testimony; and (5) the importance of the credibility issue.  Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992).  The trial court has “wide discretion” in determining the admissibility of a prior conviction under Rule 609.  Id. at 881. We will set aside the court’s ruling if it “lies outside the zone of reasonable disagreement.”  Id.

Impeachment Value

          A crime involving deception has a higher impeachment value than a crime involving violence.  Id.  Crimes involving violence tend to be more prejudicial. Id.  The State offered no evidence in the hearing concerning the facts of the prior convictions with regard to their impeachment value.  Robbery does not necessarily involve deception, but it does involve threats, force, or violence.  Based on the limited record before us, we hold that this factor weighs against admissibility.  See Jackson v. State, 50 S.W.3d 579, 592 (Tex. App.—Fort Worth 2001, pet ref’d).

Temporal Proximity

          Rule 609(b) renders a prior conviction presumptively inadmissible if it is one for which the witness had been released from custody more than ten years before trial.  Tex. R. Evid. 609(b); Jackson, 50 S.W.3d at 591; Butler v. State, 890 S.W.2d 950, 954 (Tex. App.—Waco 1995, pet. ref’d).  However, a trial court may nevertheless admit a conviction deemed too remote under this rule if the court determines that, under the “specific facts and circumstances,” the probative value of the conviction substantially outweighs its prejudicial effect.  Id.  The impeachment value of a “remote” prior felony conviction increases if the State offers evidence of the lack of reformation or subsequent felony and certain misdemeanor convictions.  See Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989); Jackson, 50 S.W.3d at 591.  The State introduced evidence that Bradden had aggravated robbery convictions in 1978 and 1979, and that Bradden had only recently been paroled for the 1978 conviction. This constitutes evidence of a lack of reformation and subsequent felony convictions.  We hold that the facts and circumstances presented tend to support the trial court’s determination that the probative value of the 1972 conviction substantially outweighs its prejudicial effect.

Similarity to Charged Offense

          The fact that a prior conviction is similar to the present offense weighs against its admissibility because the similarity might lead a jury to “convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense.”  Theus, 845 S.W.2d at 881. Bradden’s 1972 conviction was for robbery, and he was on trial for robbery in this case.  Accordingly, this factor weighs against the admissibility of the prior conviction.

Importance of Defendant’s Testimony/Credibility

          When a case involves the testimony only of the defendant and the State’s witnesses, the importance of the defendant’s testimony and credibility escalates.  Id.  As the importance of the defendant’s credibility escalates, so does the need to allow the State the opportunity to impeach the defendant’s credibility.  Id.  These factors favor admissibility.

Summary

          We accord the trial court “wide discretion” in determining whether to admit a prior conviction for impeachment under Rule 609.  Id. at 881; White v. State, 21 S.W.3d 642, 646-47 (Tex. App.—Waco 2000, pet. ref’d).  Three of the five factors weigh in favor of admissibility.  Under these circumstances, we cannot say that the court’s decision “lies outside the zone of reasonable disagreement.”  See id. We overrule the issue.

CONCLUSION

          Having overruled the issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

          (Chief Justice Gray concurs in the result without a separate opinion.)

Affirmed

Opinion delivered and filed December 8, 2004

Do not publish

[CRPM]