Andrew Michael Crump A/K/A Andrew M. Crump v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-07-141-CR
2-07-142-CR
2-07-143-CR
ANDREW MICHAEL CRUMP A/K/A APPELLANT
ANDREW M. CRUMP
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Andrew Michael Crump a/k/a Andrew M.
Crump of the aggravated robbery with a deadly weapon of Jimmie Stanford,
George Paris, and Heidi Autry, and the aggravated robbery of an elderly
person—Betsy Tipton. The jury assessed Crump’s punishment at sixty-five
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… See Tex. R. App. P. 47.4.
years’ confinement for each offense, to run concurrently. In a single point,
Crump argues that the trial court erred by admitting evidence of an extraneous
offense. We will affirm.
Crump visited Troy Vinson Jewelers on June 21, 2006. When a
salesperson showed Crump three watches, each valued at approximately
$5,000, Crump grabbed the watches from the salesperson and ran towards the
store’s electronically controlled exit door.2 Crump collided with the locked door
and—realizing that he was locked in and unable to exit—lifted his shirt, pulled
a gun from his pants, waved the gun across the showroom, and said something
to the effect of, “If you don’t let me out, someone’s going to die.” 3 An
employee unlocked the door, and Crump exited the store. 4 He drove away in
a small blue truck.
Authorities later located and arrested Crump in Georgia. They also
located the truck that Crump drove after robbing the jewelry store in an
apartment complex where his mother lives.
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… Store employees can control entry into and exit out of the store with
a remote that unlocks the door.
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… At trial, Crump claimed that the gun he used during the robbery was
a toy gun.
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… Stanford, Paris, Autry, and Tipton were all present at the jewelry
store.
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At trial, Crump admitted that he had robbed the jewelry store and
admitted that he had committed the aggravated robbery of Tipton, but he
denied using a deadly weapon during the robbery. After the State rested and
during his direct examination, Crump said that the truck he drove after the
robbery belonged to an individual named “Zack.” He testified:
[Defense counsel]: Where did that truck come from?
[Crump]: It’s Zack’s truck.
[Defense counsel]: Okay. Is it Zack’s truck? Are you sure, or did
you think it was Zack’s truck?
[Crump]: At that time, I believed it was Zack’s truck. Later on, I
found out it wasn’t Zack’s truck.
[Defense counsel]: Had Zack let you use the truck?
[Crump]: Yes. I was staying at his house previously that night so
I was coming back to pick him up.
After defense counsel passed Crump for cross-examination, the prosecutor
approached the bench and said that she had reason to believe Crump had stolen
the truck and that she intended to cross-examine Crump about the stolen truck
because he “has now claimed the truck belonged to some guy named Zack.”
Thereafter, Crump again admitted to committing robbery, but he denied stealing
the truck.
After the defense rested, the State, on rebuttal, attempted to elicit
testimony from Officer Beth Turnbow of the Weatherford Police Department
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regarding her investigation of a stolen truck. Defense counsel objected to the
evidence as extraneous, but the trial court overruled the objection, stating that
it was “contextual of the offense.” The officer thereafter testified that the
truck had been stolen from a Love’s convenience store in or near Weatherford,
that video surveillance taken from the convenience store had captured Crump’s
image the same night that the truck was stolen, and that she identified Crump
as a suspect. After authorities located the stolen truck, they discovered that
the truck’s license plate had been switched with the license plate of a truck
owned by an individual who lives in an apartment complex near the Love’s
convenience store. Crump’s sister lives in the same apartment complex.
In his sole point, Crump argues that the trial court erred by admitting the
extraneous offense evidence of the stolen truck because the evidence is not
same transaction contextual evidence. He also argues that the erroneous
admission of the evidence had a direct and substantial impact on the jury’s
determination of the contested issues in the case. We assume without deciding
error in the admission of the evidence and proceed directly to Crump’s harm
argument. See Coleman v. State, 188 S.W.3d 708, 726 (Tex. App.—Tyler
2005, pet. ref’d) (assuming error in the admission of the complained-of
evidence and addressing appellant’s contention that the error was harmful),
cert. denied, 549 U.S. 999 (2006).
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The erroneous admission of extraneous offense evidence is not
constitutional error. Martin v. State, 176 S.W.3d 887, 897 (Tex. App.—Fort
Worth 2005, no pet.). Texas rule of appellate procedure 44.2(b) is therefore
applicable. Tex. R. App. P. 44.2(b). Under rule 44.2(b), we are to disregard
the error unless it affected Crump’s substantial rights. Id. A substantial right
is affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct.
1239, 1253 (1946)); Coggeshall v. State, 961 S.W.2d 639, 642–43 (Tex.
App.—Fort Worth 1998, pet. ref’d). Conversely, an error does not affect a
substantial right if we have “fair assurance that the error did not influence the
jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex.
Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
1998).
In making this determination, we review the record as a whole, including
any testimony or physical evidence admitted for the jury’s consideration, the
nature of the evidence supporting the verdict, and the character of the alleged
error and how it might be considered in connection with other evidence in the
case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may
also consider the jury instructions, the State’s theory and any defensive
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theories, whether the State emphasized the error, closing arguments, and even
voir dire, if applicable. Id. at 355–56.
There is ample evidence of Crump’s guilt. The State called numerous
witnesses during its case-in-chief who testified about the details surrounding
the aggravated robberies, including that Crump grabbed the watches from an
employee, ran to the exit door, pulled a gun from his pants, and fanned or
waved the gun around the room at the employees and store patrons, causing
some of them to feel threatened with imminent bodily injury or death. Crump
even admitted during his testimony that he robbed the jewelry store and that
he committed the aggravated robbery of Tipton. He only denied using a deadly
weapon during the commission of the offenses. In light of the entire record,
Crump’s alleged untruthfulness concerning how he came into possession of the
truck has minimal relevance as to whether he used a deadly weapon during the
robberies.
Regarding the character of the assumed error and how it might be
considered in connection with other evidence, the State sought to admit the
extraneous offense evidence to rebut Crump’s alleged false testimony that his
friend, Zack, let him use the truck. This was not the only evidence that the
State elicited during rebuttal tending to challenge Crump’s truthfulness,
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however; five other witnesses testified during the State’s rebuttal that they had
a bad opinion of Crump’s character for truthfulness.
The trial court also provided a limiting instruction regarding extraneous
offenses in the jury charge. See Martin, 176 S.W.3d at 898 (considering that
trial court included limiting instruction in jury charge as part of harm analysis).
Absent evidence to the contrary, the jury is presumed to follow the instruction
set forth in the court’s charge, and Crump has not rebutted this presumption.
See id.
We have a fair assurance that the assumed error either did not influence
the jury or that it had but a slight effect. Accordingly, we conclude that, in the
context of the entire case against Crump, the assumed error in admitting the
extraneous offense evidence that Crump stole the truck did not have a
substantial or injurious effect on the jury’s verdict and did not affect Crump’s
substantial rights. See King, 953 S.W.2d at 271. Thus, we disregard the error.
See Tex. R. App. P. 44.2(b). We overrule Crump’s sole point and affirm the
trial court’s judgment.
PER CURIAM
PANEL: DIXON W. HOLMAN, J. (Senior Justice, Retired, Sitting by
Assignment); GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
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DELIVERED: February 5, 2009
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