Affirmed as modified; Opinion Filed July 3, 2018.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00320-CR
BOBBY EARL MILLER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F15-76030-P
MEMORANDUM OPINION Before Justices Lang, Myers, and Stoddart Opinion by Justice Myers After a jury convicted appellant Bobby Earl Miller of aggravated robbery, the trial court
assessed punishment, enhanced by two prior felony convictions, at 50 years’ imprisonment. In a
single issue, appellant contends the trial court erred by admitting certain evidence during
punishment. We affirm the judgment as modified.
At trial, eighty-year-old Julie Young testified about an event that happened two years
previously. On July 24, 2015, Young drove to the neighborhood Fiesta store to buy groceries.
When she returned home, she parked her car in the attached garage. As she began to walk toward
the back door into her house, a man later identified as appellant came in the garage and pushed her
to the ground, face-first onto the concrete floor. Appellant sat on Young’s back and beat her until
he was able to wrench her wedding ring off her finger and get her purse, which contained three dollars and a ten dollar lotto ticket. He then ran out of the garage and fled in his white Ford pickup
truck. Young, who was covered in blood, crawled into her house. Her son called 911, and the
police arrived soon thereafter. Young was taken to the hospital where she was treated for a broken
pelvis, a fractured rib, scrapes, and extensive bruises.
Officer Luis Sanchez testified he and his partner responded to the call about the attack on
Young. When they arrived on the scene, they met David Allen, Young’s next-door neighbor.
Allen had a surveillance video with five cameras, two of which were recording events in the alley
behind Allen’s and Young’s houses. The officers reviewed the video tape footage and saw a man
driving a white Ford pickup that followed Young as she drove down the alley to her house. When
Young pulled into her garage, the white Ford pickup drove past Young’s driveway. The driver
then put the pickup in reverse and drove back past Young’s and Allen’s driveways. He parked in
the alley behind Allen’s house and walked to Young’s garage. The driver was wearing a white
sleeveless t-shirt and long black shorts. About a minute later, he ran out of Young’s garage,
carrying a bag. He then got in the pickup and drove away.
Sanchez noted that the pickup was distinctive because it was a single cab but had a long
bed with a spare tire and some trash inside. The officers drove around the neighborhood and
eventually found the truck at the Pebble Cove Apartment complex, approximately one mile from
Young’s house. They ran the paper license plate which showed the pickup was registered to
appellant. Sanchez’s partner spoke with Willean Johnson, the property manager at the Pebble
Cove Apartment complex where appellant’s pickup was found after the robbery. According to the
police report, Johnson was shown a still photo from the video taken of the alley behind Young’s
house; she identified appellant as the man in the photo.
Detective Megan Mulvihill of the Dallas Police Department said that as part of the
investigation of the aggravated robbery, she reviewed the video tape from the surveillance cameras
–2– at the Fiesta store where Young shopped. The video showed a white Ford pickup with a single
cab and extended bed driving through the parking lot. When Young got in her car, the pickup
truck followed her out of the parking lot.
Johnson testified appellant and his wife lived in the apartments and were behind on their
rent. On the day of the robbery, they stopped by her office to let her know they were “working on
the rent, getting the money for rent.” They indicated they were going to a pawnshop to pawn some
items. Johnson said appellant, who was wearing a white “wife-beater” t-shirt and black shorts,
was “acting strange,” and was “sweating” and “very edgy.” He and his wife got in the white
pickup and left. Johnson again identified appellant as the man in the video taken in the alley behind
Young’s house.
After hearing this and other evidence, the jury found appellant guilty of aggravated
robbery. Appellant elected to have the trial court assess punishment.
During punishment, seventy-six-year-old Astrid Colgrove testified she stopped by a Target
store in the late afternoon of July 5, 2015. After making a purchase, she left the store and walked
to her car. She set her purchase on the top of the car in order to open the car door. At that point,
someone started pulling her arm. She looked down and saw a “light complected [sic] black man”
with freckles crouched by her car. He pulled her purse off of her arm, then wrenched two rings
off her fingers, breaking one of her fingers. The man then fled in a white pickup with a paper
license plate. Colgrove had three screws surgically implanted in her finger to repair the break.
Colgrove said she thought she could pick out the individual because she “looked at his face very
clear.” When asked if she saw him in the courtroom, she replied “In the courtroom today.”
Detective Mulvihill testified during punishment and said she investigated the Colgrove
case. The State offered the State’s Exhibit 37, a surveillance video from Target. Appellant
objected as “to foundation. This is not the custodian of records for the recording of that particular
–3– video.” The trial court overruled the objection and admitted the exhibit. Included in the exhibit
was a still photo of the white pickup with a long bed, short cab, and paper license plate involved
in the Colgrove case; the truck matched the description of the truck used in the Young case. In
addition, Mulvihill noted, without objection, the similarities between the two cases, including the
age of the victims, the white pickup truck, and the “MO of the truck being in parking lots . . .
waiting for the victim of choice.”
The State then introduced evidence to support the two prior felony convictions (burglary
of a habitation and aggravated robbery) alleged in the enhancement paragraphs as well as evidence
of four other prior convictions, all for burglary of a habitation. Appellant testified and denied the
Young and Colgrove robberies. He conceded he had criminal convictions throughout his life but
said he was not the “monster that [he’s] fixing to be painted to.” He also conceded he had “[v]ery
distinctive freckles” on his face. At the conclusion of punishment, the trial court sentenced
appellant to 50 years in prison.
In his sole issue on appeal, appellant argues the trial court abused its discretion by admitting
State’s Exhibit 37 because the State did not properly authenticate the video. Specifically, appellant
argues the State did not show that the video portrayed (1) what the State alleged that it portrayed
or (2) any relevant information.
Initially, we note that appellant’s objection at trial—that Mulvihill was not the custodian
of records—is not the same objection raised on appeal and is therefore waived. See Thomas v.
State, 505 S.W.3d 916, 924 n.25 (Tex. Crim. App. 2016) (trial objection that does not comport
with arguments on appeal does not preserve error); Wilson v.
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Affirmed as modified; Opinion Filed July 3, 2018.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00320-CR
BOBBY EARL MILLER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F15-76030-P
MEMORANDUM OPINION Before Justices Lang, Myers, and Stoddart Opinion by Justice Myers After a jury convicted appellant Bobby Earl Miller of aggravated robbery, the trial court
assessed punishment, enhanced by two prior felony convictions, at 50 years’ imprisonment. In a
single issue, appellant contends the trial court erred by admitting certain evidence during
punishment. We affirm the judgment as modified.
At trial, eighty-year-old Julie Young testified about an event that happened two years
previously. On July 24, 2015, Young drove to the neighborhood Fiesta store to buy groceries.
When she returned home, she parked her car in the attached garage. As she began to walk toward
the back door into her house, a man later identified as appellant came in the garage and pushed her
to the ground, face-first onto the concrete floor. Appellant sat on Young’s back and beat her until
he was able to wrench her wedding ring off her finger and get her purse, which contained three dollars and a ten dollar lotto ticket. He then ran out of the garage and fled in his white Ford pickup
truck. Young, who was covered in blood, crawled into her house. Her son called 911, and the
police arrived soon thereafter. Young was taken to the hospital where she was treated for a broken
pelvis, a fractured rib, scrapes, and extensive bruises.
Officer Luis Sanchez testified he and his partner responded to the call about the attack on
Young. When they arrived on the scene, they met David Allen, Young’s next-door neighbor.
Allen had a surveillance video with five cameras, two of which were recording events in the alley
behind Allen’s and Young’s houses. The officers reviewed the video tape footage and saw a man
driving a white Ford pickup that followed Young as she drove down the alley to her house. When
Young pulled into her garage, the white Ford pickup drove past Young’s driveway. The driver
then put the pickup in reverse and drove back past Young’s and Allen’s driveways. He parked in
the alley behind Allen’s house and walked to Young’s garage. The driver was wearing a white
sleeveless t-shirt and long black shorts. About a minute later, he ran out of Young’s garage,
carrying a bag. He then got in the pickup and drove away.
Sanchez noted that the pickup was distinctive because it was a single cab but had a long
bed with a spare tire and some trash inside. The officers drove around the neighborhood and
eventually found the truck at the Pebble Cove Apartment complex, approximately one mile from
Young’s house. They ran the paper license plate which showed the pickup was registered to
appellant. Sanchez’s partner spoke with Willean Johnson, the property manager at the Pebble
Cove Apartment complex where appellant’s pickup was found after the robbery. According to the
police report, Johnson was shown a still photo from the video taken of the alley behind Young’s
house; she identified appellant as the man in the photo.
Detective Megan Mulvihill of the Dallas Police Department said that as part of the
investigation of the aggravated robbery, she reviewed the video tape from the surveillance cameras
–2– at the Fiesta store where Young shopped. The video showed a white Ford pickup with a single
cab and extended bed driving through the parking lot. When Young got in her car, the pickup
truck followed her out of the parking lot.
Johnson testified appellant and his wife lived in the apartments and were behind on their
rent. On the day of the robbery, they stopped by her office to let her know they were “working on
the rent, getting the money for rent.” They indicated they were going to a pawnshop to pawn some
items. Johnson said appellant, who was wearing a white “wife-beater” t-shirt and black shorts,
was “acting strange,” and was “sweating” and “very edgy.” He and his wife got in the white
pickup and left. Johnson again identified appellant as the man in the video taken in the alley behind
Young’s house.
After hearing this and other evidence, the jury found appellant guilty of aggravated
robbery. Appellant elected to have the trial court assess punishment.
During punishment, seventy-six-year-old Astrid Colgrove testified she stopped by a Target
store in the late afternoon of July 5, 2015. After making a purchase, she left the store and walked
to her car. She set her purchase on the top of the car in order to open the car door. At that point,
someone started pulling her arm. She looked down and saw a “light complected [sic] black man”
with freckles crouched by her car. He pulled her purse off of her arm, then wrenched two rings
off her fingers, breaking one of her fingers. The man then fled in a white pickup with a paper
license plate. Colgrove had three screws surgically implanted in her finger to repair the break.
Colgrove said she thought she could pick out the individual because she “looked at his face very
clear.” When asked if she saw him in the courtroom, she replied “In the courtroom today.”
Detective Mulvihill testified during punishment and said she investigated the Colgrove
case. The State offered the State’s Exhibit 37, a surveillance video from Target. Appellant
objected as “to foundation. This is not the custodian of records for the recording of that particular
–3– video.” The trial court overruled the objection and admitted the exhibit. Included in the exhibit
was a still photo of the white pickup with a long bed, short cab, and paper license plate involved
in the Colgrove case; the truck matched the description of the truck used in the Young case. In
addition, Mulvihill noted, without objection, the similarities between the two cases, including the
age of the victims, the white pickup truck, and the “MO of the truck being in parking lots . . .
waiting for the victim of choice.”
The State then introduced evidence to support the two prior felony convictions (burglary
of a habitation and aggravated robbery) alleged in the enhancement paragraphs as well as evidence
of four other prior convictions, all for burglary of a habitation. Appellant testified and denied the
Young and Colgrove robberies. He conceded he had criminal convictions throughout his life but
said he was not the “monster that [he’s] fixing to be painted to.” He also conceded he had “[v]ery
distinctive freckles” on his face. At the conclusion of punishment, the trial court sentenced
appellant to 50 years in prison.
In his sole issue on appeal, appellant argues the trial court abused its discretion by admitting
State’s Exhibit 37 because the State did not properly authenticate the video. Specifically, appellant
argues the State did not show that the video portrayed (1) what the State alleged that it portrayed
or (2) any relevant information.
Initially, we note that appellant’s objection at trial—that Mulvihill was not the custodian
of records—is not the same objection raised on appeal and is therefore waived. See Thomas v.
State, 505 S.W.3d 916, 924 n.25 (Tex. Crim. App. 2016) (trial objection that does not comport
with arguments on appeal does not preserve error); Wilson v. State, 71 S.W.3d 346, 349 (Tex.
Crim. App. 2002) (complaint raised on appeal must comport with objection lodged at trial or issue
is not preserved).
Even assuming appellant’s complaint was preserved and the admission of the video was
–4– error, we could not say it affected appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). Non-
constitutional error that does not affect an appellant’s substantial rights is to be disregarded. TEX.
R. APP. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927–28 (Tex. Crim. App. 2004). An
appellant’s substantial rights are not affected by the erroneous admission of evidence if, after
examining the record as a whole, we have fair assurance that the error did not influence the verdict
or had only a slight influence on the verdict. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.
App. 2002); see Garcia, 126 S.W.3d at 927–28. In making this determination, we consider the
entire record, including the other evidence admitted in the case, the nature of the evidence
supporting the factfinder’s determination, the character of the alleged error and how it might be
considered in connection with other evidence in the case, the State’s theory, any defensive theories,
closing arguments, and whether the State emphasized the error. Motilla, 78 S.W.3d at 355–56.
When assessing error due to improperly admitted evidence during punishment, we must ask
whether appellant received a longer sentence as a result of the erroneously admitted evidence. Ivey
v. State, 250 S.W.3d 121, 126 (Tex. App.—Austin 2007) (affirming conviction because defendant
had not demonstrated he received longer sentence or was harmed by admission of improper
testimony), aff’d, 277 S.W.3d 43 (Tex. Crim. App. 2009); Peterson v. State, No. 05–12–01417–
CR, 2013 WL 5776287, at *5 (Tex. App.—Dallas Oct. 24, 2013, no pet.) (mem. op., not designated
for publication) (concluding appellant not harmed by trial judge’s refusal to rule on hearsay
objection and admission of hearsay testimony because objected-to evidence had only slight effect
on punishment verdict).
After examining this record as a whole, we conclude appellant has not shown he received
a longer sentence or that he was harmed by the admission of the Target surveillance video during
punishment. A person commits the first-degree offense of aggravated robbery if he causes serious
bodily injury to a person 65 years or older. TEX. PENAL CODE ANN. § 29.03(a)(3)(A), (b) (West
–5– 2011). The punishment range for a first degree felony when the defendant has been finally
convicted of two prior felony offenses is life or any term of not more than 99 years or less than 25
years. Id. § 12.42(d) (West Supp. 2017).
Here, the overwhelming evidence showed appellant followed then seventy-eight-year-old
Young to her home where he savagely beat her in order to take her purse and wedding ring. Young
suffered a broken pelvis and a fractured rib as well as extensive bruising. During punishment, in
addition to Colgrove’s testimony about her attack at Target and the complained-of video, the State
introduced evidence to support the two enhancement paragraphs, specifically that appellant had
been convicted previously of burglary of a habitation and aggravated robbery. In addition, the
State introduced evidence of four other convictions for burglary of a habitation. The trial court
assessed punishment at 50 years, well within the punishment range of a minimum of 25 years with
a maximum of life. After examining the record as a whole, we conclude that the admission of the
Target video, if error, had no effect or had “but a slight effect” in determining appellant’s
punishment. Motilla, 78 S.W.3d at 355–56. We overrule appellant’s issue.
In a cross-point, the State asks us to modify the judgment to reflect that appellant entered
pleas of “not true” to the enhancement paragraphs.
An appellate court has “the power to correct and reform a trial court judgment ‘to make the
record speak the truth when it has the necessary data and information to do so, or make any
appropriate order as the law and nature of the case may require.’” Asberry v. State, 813 S.W.2d
526, 529 (Tex. App.—Dallas 1991, pet. ref’d); see TEX. R. APP. P. 43.2(b); Bigley v. State, 865
S.W.2d 26, 27–28 (Tex. Crim. App. 1993).
Here, appellant pleaded “not true” to the two enhancement paragraphs; therefore, the
record supports the requested modifications. We modify the judgment to reflect that appellant
pleaded “not true” to both enhancement paragraphs.
–6– We affirm the trial court’s judgment as modified.
/Lana Myers/ LANA MYERS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 170320F.U05
–7– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BOBBY EARL MILLER, Appellant On Appeal from the 203rd Judicial District Court, Dallas County, Texas No. 05-17-00320-CR V. Trial Court Cause No. F15-76030-P. Opinion delivered by Justice Myers, THE STATE OF TEXAS, Appellee Justices Lang and Stoddart participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED to show:
Plea to 1st Enhancement Paragraph: NOT TRUE Plea to 2nd Enhancement/Habitual Paragraph: NOT TRUE
We AFFIRM the trial court’s judgment as modified.
Judgment entered this 3rd day of July, 2018.
–8–