Romel Craig Kennerson v. State ( 1995 )

Kennerson v. State

IN THE

TENTH COURT OF APPEALS

No. 10-93-134-CR

     ROMEL CRAIG KENNERSON,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 185th District Court

Harris County, Texas

Trial Court # 648,911

O P I N I O N

      This is an appeal by Appellant Kennerson from his conviction for aggravated robbery for which he was sentenced to 35 years in the Institutional Division of the Texas Department of Criminal Justice.

      Late in the evening of September 15, 1992, Aaron Elie came to the Romana Drive-In Club to use the rest room. Shortly thereafter, Elie, accompanied by Appellant and Maurice Wilkerson, kicked in the door of the club and said: "Police, lie down." All three held firearms in their hands. Everyone present, except the complainant Rita Babers who owned the business, laid down. Elie took the complainant's gold cross and diamond ring from her. Appellant stole the money out of the cash register. Elie took complainant to the back room and raped her. Appellant emptied complainant's purse and said: "Ain't no damn money here. Let's kill them all, man, let's kill them all."

      Several weeks later, Appellant and Wilkerson returned to the club. The complainant recognized them and called the police. An employee held Appellant and Wilkerson with a shotgun until the police arrived and arrested them.

      Complainant subsequently identified Appellant and Wilkerson in a lineup. Appellant was indicted and convicted by a jury of aggravated robbery. Appellant elected to have the court assess punishment. The court sentenced him to 35 years in prison and made a finding that Appellant used a deadly weapon, to-wit, a firearm in the commission of the offense.

      Appellant appeals on nine points of error.

      Point one asserts the evidence is insufficient to support the conviction.

      When an insufficient evidence claim is made, this court's standard of review is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, S.Ct., 443 U.S. 307, 319; Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988).

      Additional to the facts recited, supra, Appellant held a firearm on complainant and threatened to kill her. Complainant testified she was frightened and feared both imminent bodily injury and death. Evidence of Appellant's guilt is overwhelming. Reviewing the evidence in the light most favorable to the prosecution, it is clear beyond a reasonable doubt that Appellant robbed complainant, threatened her, and placed her in fear of her life.

      Point one is overruled.

      Point two asserts the admittance of State's exhibits 1, 2, and 3, over objection, even for demonstrative purposes, was inflammatory and prejudicial and served no probative value except to arouse the emotions and fears of the jury.

      The State offered, for demonstrative purposes only, exhibits 1, 2, and 3, which were three firearms, i.e. two pistols and an "oozie." Complainant testified that exhibits 1, 2, and 3 were not the same weapons as used by Appellant and other two robbers, but were similar.

      An introduction of a weapon as "the same as," "similar," "like," or "comparable to" a weapon used in the offense is properly admissible as demonstrative evidence. Jackson v. State, 772 S.W.2d 459, 466 (Tex. App.—Beaumont 1989); Simmons v. State, 622 S.W.2d 111 (Tex. Crim. App. 1981). The probative value of exhibits 1, 2, and 3 was substantial; its prejudicial effect, if any, was minimal.

      Point two is overruled.

      Point three asserts the trial court erred when it overruled the defense's objection to the relevancy of Aaron Elie's actions in this case.

      The trial court admitted evidence as to the conduct of Appellant's co-defendant, Aaron Elie, i.e., that Elie raped complainant during the course of the armed robbery.

      All relevant evidence is admissible. Tex. R. Crim. Evid. 402. Events do not occur in a vacuum and the jury had a right to hear what occurred immediately prior to, during, and subsequent to the commission of the robbery so that it may realistically evaluate the evidence. Archer v. State, 607 S.W.2d 539, 542 (Tex. Crim. App. 1981). The admission of the circumstances surrounding the aggravated robbery of complainant, which necessarily included the contemporaneous sexual assault by Appellant's co-defendant, was essential for the jury to fully understand the instant aggravated robbery offense. Alston v. State, 763 S.W.2d 557, 559 (Tex. App.—Beaumont 1988).

      Point three is overruled.

      Point four asserts the introduction of Appellant's prior criminal convictions were more prejudicial to Appellant than probative in value and tainted the jury, allowing it convict him on being a criminal generally as opposed to a conviction based on the facts of this case.

      Appellant has failed to point out what evidence he complains of, or where it is contained in the statement of facts, and has failed to brief this point.

      Point four is overruled.

      Point five asserts the trial court's charge allowed Appellant to be convicted on an alternative theory of law than that alleged in the indictment.

      Appellant complains that the trial court erred in submitting an instruction on the law of parties because the indictment did not include such an allegation.

      The law of parties may be applied to a case even though no such allegation is contained in the indictment. Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989).

      Point five is overruled.

      Point six asserts the trial court erred in allowing the use or introduction of the video tape for identification purposes to contradict the testimony of their rebuttal witness.

      Jewell McDaniel testified that the man in the courtroom (Appellant) was not the man she saw in her home on September 22, 1992, when robbers broke into her home. The State introduced for identification purposes a video wherein Mrs. McDaniel identified Appellant from a lineup as the person who broke into home and held a gun on her. Mrs. McDaniel testified at Appellant's trial and was subject to cross examination regarding the identification of Appellant. In such situation, the trial court properly admitted the video tape as identification evidence. Tex. R. Crim. Evid. 801(e).

      Point six is overruled.

      Point seven contends the trial court erred when it overruled defense's objection to improper bolstering of the rebuttal witness.

      Appellant has failed to identify in his brief which rebuttal witness, what rebuttal evidence, and has failed to identify the complained of evidence. Appellant presents nothing for review. Tex. R. App. P. 74(d) and (e).

      Point seven is overruled.

      Point eight asserts the trial court erroneously denied and overruled defense's motion for directed verdict and motion for a mistrial.

      A challenge to the trial judge's ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction. If the evidence is sufficient to sustain the conviction, the trial judge did not err in overruling Appellant's motion. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). As stated in our discussion of Appellant's point one, the evidence was sufficient to support Appellant's conviction.

      Point eight is overruled.

      Point nine asserts the prosecutor committed prosecutorial misconduct by urging facts outside the record during closing argument.

      Permissible jury argument must fall within (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231-231 (Tex. Crim. App. 1993).

      Elie testified that he had been convicted the day before for having committed the robbery of the complainant, and that Appellant was innocent. Elie further testified that Appellant was at home on September 23, 1992. Appellant's mother and sister also testified that he was at home from 7:00 a.m. to after 6:00 p.m. on September 23, 1992.

      In direct rebuttal testimony, the State called Mrs. Cynthia McDaniel, Officer Johnson and Foluke McDaniel to establish that on the morning of September 23, 1992, Appellant, Elie and two others forcibly entered the McDaniel home and robbed members of the McDaniel family.

      The State argued in final summation:

When he said he was at home, he failed to mention it was Jewel McDaniel's home. And who was there with him? Romel Kennerson; when an alibi defense or a mistaken identity; that's the only time the State can get into an extraneous offense and get into it and the purpose for Jewel McDaniel and R.T. Johnson, we are showing you a course of conduct; her home was kicked in and robbed. Rita Babers' place was kicked in and they were robbed.

You heard from the stand—she said ``I don't see him in the court room.' You heard it. Can't hide that part. You also heard she didn't see that tape of the defendant since November. You saw on the film his hair had changed."

[DEFENSE COUNSEL]: I object to the prejudicial nature of this testimony. I believe it's outside the scope of this trial.

                  THE COURT: Overruled.

[DEFENSE COUNSEL]: Move for a mistrial.

                  THE COURT: Overruled.

      In the complained of argument, the prosecutor simply argued, based on the evidence presented, that the defense witnesses were not credible, and that Appellant was guilty of the instant aggravated robbery. Such argument is within the bounds of permissible jury argument.

      Point nine is overruled. The judgment is affirmed.

                                                                               FRANK G. McDONALD 

                                                                               Chief Justice (Retired)

Before Justice Cummings,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed February 22, 1995

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