COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-245-CR
DAUDI
HASHIM HUFF APPELLANT
A/K/A
DAUDI H. HUFF
V.
THE
STATE OF TEXAS STATE
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FROM
THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
A
jury convicted Appellant Daudi Hashim Huff of aggravated robbery and assessed
his punishment at twenty years’ confinement. In four points, Huff argues
that the evidence is legally and factually insufficient to support his
conviction and that the trial court erred by admitting a jail document showing
Huff’s request for a copy of the Holy Koran and by denying Huff’s request
for a mistrial. We will affirm.
II. Factual
Background
Clarence
Johnson, Jr. was at his apartment on the afternoon of August 4, 2001 when
someone knocked on the door. Johnson answered the door, and a man later
identified by Johnson as Huff explained that he was looking for someone.
Johnson responded that the person Huff was looking for probably did not live in
the area, and Huff left.
A
few hours later, Huff again appeared at Johnson’s door. Johnson began to open
the door, but it was kicked in, and Huff and another man, Malik Bunch, entered
the apartment. Huff brandished a .357 revolver and Bunch carried a knife.
Huff pointed the pistol at Johnson and ordered him to “sit your punk ass down,
nigger.” Johnson, surprised, sat down and asked what this was about; he
asked the intruders if they were sure they had the right apartment. Bunch
began to remove items from Johnson’s apartment, including a television,
telephone, and a fur coat. Huff later asked Johnson questions concerning
his ex-wife and about specific items of property while he simultaneously spoke
on a cell phone.
Sometime
later, Bunch exited Johnson’s apartment and returned with Ephraim
Wilson. Johnson recognized Wilson as his ex-wife’s lover and the
individual with whom she had a child during their marriage. Johnson asked
the man if his name was Ephraim, but Wilson claimed to be Ephraim’s
uncle. Johnson asked Wilson what this was about, and Wilson responded,
“[N]igger, you know what this shit is about.” Wilson held a knife to
Johnson’s throat and accused him of kicking his ex-wife in the stomach while
she was pregnant with Ephraim’s baby. Wilson and Bunch then left, but
Huff remained in the apartment with Johnson.
Johnson
asked Huff if he was going to kill him, and Huff responded, “[N]igger, make
your peace with God. Say your prayers.” Johnson dropped to his
knees, held his hands out, closed his eyes, and prayed. Huff then
instructed Johnson to stand up and to repeat after him. Huff apparently
began to say something in Arabic; Johnson turned around and saw Huff cover the
pistol with a pillow and point it at him. Huff fired, and Johnson was shot
in the face. Johnson managed to run downstairs and knock on his
neighbor’s door. The neighbor answered his door, pulled Johnson in,
locked the door, retrieved his pistol, and called 911. Police and
paramedics arrived shortly thereafter and transported Johnson, who survived, to
the hospital.
Huff,
Wilson, and Bunch were all subsequently arrested. Huff was apprehended in
Du Page County, Illinois and extradited to Texas.
At
trial, Huff testified that he did not intend to rob Johnson. He claimed
that he, Wilson, and Bunch went to Johnson’s apartment to retrieve items
belonging to Johnson’s ex-wife. Huff insisted that the television set
and telephone belonged to Johnson’s ex-wife and that he did not take
Johnson’s fur coat. Huff testified that he brought the pistol along for
protection and that he did not intend to shoot Johnson. Huff further
suggested that the pistol “went off” when he jumped back in response to
Johnson’s sudden movement and that he held the pillow up over the pistol in
order to scare Johnson.
A
jury convicted Huff of aggravated robbery and assessed his punishment at twenty
years’ confinement. This appeal followed.
III. Legal and
Factual Sufficiency of the Evidence
In
his first point, Huff argues that the evidence is legally and factually
insufficient. Specifically, Huff contends that the evidence fails to show
that he deprived Johnson of property that belonged to Johnson, as opposed to
Johnson’s ex-wife, and that, therefore, “no rational jury could have found
that appellant assaulted Clarence Johnson in the course of committing theft.”2 The State maintains that the evidence is legally and
factually sufficient to support the verdict.
In
reviewing the legal sufficiency of the evidence to support a conviction, we view
all the evidence in the light most favorable to the verdict in order 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, 319, 99 S. Ct. 2781, 2789 (1979); Ross v. State, 133 S.W.3d
618, 620 (Tex. Crim. App. 2004). This standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code
Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34
S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the fact finder. Dewberry
v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529
U.S. 1131 (2000). We must resolve any inconsistencies in the evidence in
favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.
Crim. App. 2000).
In
contrast, when reviewing the factual sufficiency of the evidence to support a
conviction, we are to view all the evidence in a neutral light, favoring neither
party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App.
2004). The only question to be answered in a factual sufficiency review is
whether, considering the evidence in a neutral light, the fact finder was
rationally justified in finding guilt beyond a reasonable doubt. Id.
at 484. There are two ways evidence may be factually insufficient:
(1) the evidence supporting the verdict or judgment, considered by itself, is
too weak to support the finding of guilt beyond a reasonable doubt; or (2) when
there is evidence both supporting and contradicting the verdict or judgment,
weighing all the evidence, the contrary evidence is so strong that guilt cannot
be proven beyond a reasonable doubt. Id. at 484-85. “This
standard acknowledges that evidence of guilt can ‘preponderate’ in favor of
conviction but still be insufficient to prove the elements of the crime beyond a
reasonable doubt.” Id. at 485. In other words, evidence
supporting a guilty finding can outweigh the contrary proof but still be
insufficient to prove the elements of an offense beyond a reasonable doubt. Id.
In
performing a factual sufficiency review, we are to give deference to the fact
finder’s determinations, including determinations involving the credibility
and demeanor of witnesses. Id. at 481; Cain v. State, 958
S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not substitute our judgment
for that of the fact finder’s. Zuniga, 144 S.W.3d at 482.
A
proper factual sufficiency review requires an examination of all the
evidence. Id. at 484, 486-87. An opinion addressing factual
sufficiency must include a discussion of the most important and relevant
evidence that supports the appellant’s complaint on appeal. Sims v.
State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Section
29.02 of the Texas Penal Code defines robbery as follows:
(a) A person commits an offense if, in the course of committing theft as defined
in Chapter 31 and with intent to obtain or maintain control of the property, he:
(1)
intentionally, knowingly, or recklessly causes bodily injury to another; or
(2)
intentionally or knowingly threatens or places another in fear of imminent
bodily injury or death.
Tex. Penal Code Ann. § 29.02(a) (Vernon
2003). A robbery becomes aggravated if the defendant commits a robbery as
defined in section 29.02 and he “uses or exhibits a deadly weapon.” See
id. § 29.03(a)(2). “‘In the course of committing theft’ means
conduct that occurs in an attempt to commit, during the commission, or in
immediate flight after the attempt or commission of theft.” See id. §
29.01(1). The evidence is sufficient to show ownership if it shows that
the property was taken from the care, custody, and control of the complaining
witness. Jones v. State, 687 S.W.2d 430, 432 (Tex. App.—Houston
[14th Dist.] 1985, no pet.).
In
the present case, the indictment tracked the language found in the Penal Code by
charging that Huff
did then and there intentionally or knowingly, while in the course of committing
theft of property and with intent to obtain or maintain control of said
property, threaten or place Clarence Johnson in fear of imminent bodily injury
or death, and the defendant did then and there use or exhibit a deadly weapon,
to-wit: a firearm[.]
The
evidence demonstrates that Huff “cased” Johnson’s apartment by first
approaching it and pretending to look for a non-existing person. Upon
discovering that Johnson did in fact reside at that particular apartment, Huff
and Bunch forced their way inside; Bunch began to remove Johnson’s television,
telephone, and fur coat while Huff pointed a .357 at Johnson. Huff
inquired about specific items of property purportedly in Johnson’s possession
while simultaneously speaking on a cell phone. One of Huff’s questions
concerned an expensive piece of music equipment that Johnson owned but had
previously pawned. Huff carried the .357 during the entire robbery, and
Johnson saw Huff cover the pistol with a pillow and point it at him.
Johnson testified that all the possessions at his apartment, including those
taken, belonged to him and not to his ex-wife.
Huff
argues that his own testimony constituted contravening evidence of such a nature
that the State failed to meet its burden with regard to the theft element of
aggravated robbery.3 Huff testified that he,
Wilson, and Bunch “took only items they thought belonged to
Elizabeth.” Huff further testified that he did not intend to rob Johnson
and that he neither took a fur coat nor inquired about Johnson’s music
equipment. However, it is the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson,
443 U.S. at 319, 99 S. Ct. at 2789; Zuniga, 144 S.W.3d at 481-82.
The jury obviously chose to believe Johnson’s account of the events that day,
and we may not substitute our judgment for that of the fact finder. Zuniga,
144 S.W.3d at 482; Dewberry, 4 S.W.3d at 740.
Viewing
all the evidence in the light most favorable to the verdict, a rational trier of
fact could have concluded beyond a reasonable doubt that Huff committed the
offense of aggravated robbery. See Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789; Ross, 133 S.W.3d at 620. Likewise, viewing the
evidence in a neutral light, favoring neither party, the fact finder was
rationally justified in finding guilt beyond a reasonable doubt. See
Zuniga, 144 S.W.3d at 481, 484. Accordingly, we hold that the evidence
was legally and factually sufficient to establish the theft element of
aggravated robbery and, ultimately, the offense of aggravated robbery. We
overrule Huff’s first and second points.
IV.
Admissibility of State’s Exhibit 18
In
his third point, Huff argues that the trial court erred by admitting State’s
Exhibit 18, a document showing Huff’s request for a copy of the Koran.
Huff testified at the guilt/innocence stage of the trial, and on direct
examination, Huff’s attorney inquired into Huff’s religious
preference. Huff responded, “I study a lot of things. I study
Christianity, read the Bible every day, old and new testaments. I also
study a little bit of the Koran. I also study a little bit of buddhism and
tallism [sic].” Huff then denied knowing how to speak Arabic.
On
cross-examination, counsel for the State asked if Huff had “a little bit
greater interest in the Koran than just a passing interest.” Huff
answered, “None of my interests I don’t think are passive
interests.” He further stated, “I – I have read sections of the
Koran just like I’ve read most of the Old Testament and all of the New
Testament.” Counsel for the State then asked Huff whether he had
requested a copy of the Koran and an Islamic chaplain while in jail. Huff
responded affirmatively and later admitted that he was “familiar with Arabic
terms.”
On
re-direct, Huff’s counsel asked, “As far as the Koran is concerned or the
Bible or whatever, you’re not on trial for being a terrorist, are you, or
anything like that.” Huff answered, “I hope not.” On
re-cross-examination, Huff agreed that it is “definitely terrifying” to have
someone invade your home, put a gun in your face, and fire a bullet in your
head. Counsel for the State then offered Exhibit 18, Huff’s counsel
objected on relevance grounds, and the trial court overruled the objection
“based on the state of the entire record concerning the same subject
matter.”
The
law is well settled that a defendant forfeits complaints about the introduction
of evidence when the same evidence is subsequently admitted from another source.
Reyes v. State, 84 S.W.3d 633, 638 (Tex. Crim. App. 2002). When the
State offered Exhibit 18, Huff had already testified without objection that he
had made a request for a copy of the Koran while he was in jail.
Consequently, any complaint concerning Exhibit 18, a copy of this written
request, was forfeited. See id. We overrule Huff’s third
point.
V. Denial of
Mistrial
In
his fourth point, Huff argues that the trial court erred by denying his request
for a mistrial after the trial court sustained his objection to a statement made
by the State during its final argument at punishment.
The
following exchange took place:
[PROSECUTOR]: Yes, ladies and gentlemen, we have asked you for a substantial
sentence, not that we can tell you, not that we can direct you. But you have
taken the oath. You have accepted the responsibility. You will be true to that
oath, and we have no doubt about it.
I
will admit to you I have not stood in front of many juries and asked them for so
great a sentence on so young a man.
[DEFENSE
COUNSEL]: Excuse me, Judge. That’s outside --
(Exchanges inaudible)
THE
COURT: -- hold on.
What
you’ve done in the past--sustained as to what you have or haven’t done in
the past. It’s what this jury does today.
[DEFENSE
COUNSEL] We ask the jury to be instructed to disregard.
THE
COURT: Jury will disregard whatever Mr. Hatcher may have done in front of other
juries just like you will disregard whatever other juries have or haven’t
done.
Everyone
remember that instruction?
THE
JURY: Yes.
THE
COURT: Can you follow that instruction concerning what Mr. Hatcher has or
hasn’t done with other juries?
THE
JURY: Yes, sir.
THE
COURT: All right.
[DEFENSE
COUNSEL]: We feel such instruction insufficient at law and move for mistrial.
THE
COURT: Based on responses and observations of the Court, that motion is denied.
Based
on the foregoing, Huff argues that the trial court’s instruction to the jury
to disregard the complained-of remark was insufficient to cure the alleged error
because the comment was extreme and manifestly improper. The State
contends that the trial court did not abuse its discretion by denying Huff’s
request for a mistrial.
When
the trial court sustains an objection and instructs the jury to disregard but
denies a defendant’s motion for mistrial, the issue is whether the trial court
abused its discretion by denying the mistrial. See Hawkins v. State,
135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Primes v. State, 154 S.W.3d
813, 814 (Tex. App.—Fort Worth 2004, no pet.). Only in extreme
circumstances, in which the prejudice is incurable, will a mistrial be
required. See Hawkins, 135 S.W.3d at 77. Such a circumstance exists
when the improper conduct is “so prejudicial that expenditure of further time
and expense would be wasteful and futile.” Id.; see also
Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert.
denied, 124 U.S. 2837 (2004). Generally, an instruction to disregard
impermissible argument cures any prejudicial effect. Wesbrook v. State,
29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944
(2001). In determining whether the trial court abused its discretion by
denying a mistrial for improper argument, we consider the following factors: (1)
the severity of the misconduct (prejudicial effect), (2) curative measures, and
(3) the certainty of the punishment assessed absent the misconduct (likelihood
of the same punishment being assessed). See Hawkins, 135 S.W.3d at 77; Primes,
154 S.W.3d at 815.
Here,
the prosecutor’s argument that he had never asked for so great a sentence for
such a young a man does not appear to have been “a willful and calculated
effort on the part of the State to deprive appellant of a fair and impartial
trial.” See Wesbrook, 29 S.W.3d at 115. On the contrary, although we do
not decide the propriety of the comment in terms of its admissibility, the
prosecutor’s comment seems to be in response to defense counsel’s
characterization of the State’s recommendation as to punishment as
“laughable.” Prior to the State’s comment, defense counsel argued, “I
can’t tell you what to assess. Sixty years, that’s a joke. That’s
laughable. Anything like that is just is [sic] not reasonable. Can’t imagine
why anybody would even ask for that in this case. Nobody’s dead.” Although
the prosecutor’s comment lies outside the record, its prejudicial effect, if
any, was likely minimal at best. Moreover, the trial court promptly instructed
the jury to disregard the prosecutor’s comment, and the jury affirmatively
responded that it could follow the instruction. In terms of the certainty of the
punishment absent the misconduct, the State elicited testimony from multiple
witnesses concerning the events that transpired on the day of the offense.
Johnson’s neighbor testified that he assisted Johnson after Johnson appeared
at his door bleeding, Johnson recounted the aggravated robbery in detail, and
numerous officers described the crime scene and their associations with the
investigation of the case. The defense called only one witness during
guilt/innocence, Huff, and the prosecutor cast doubt upon portions of Huff’s
testimony throughout cross-examination. Accordingly, we hold that the
trial court’s instruction to the jury to disregard the prosecutor’s comment
cured any resulting prejudicial effect and that the trial court did not abuse
its discretion by denying Huff’s request for a mistrial. See Hawkins,
135 S.W.3d at 77; Wesbrook, 29 S.W.3d at 115. We overrule Huff’s fourth
point.
VI. Conclusion
Having
overruled all four of Huff’s points, we affirm the trial court’s judgment.
SUE
WALKER
JUSTICE
PANEL
B: LIVINGSTON, GARDNER, and WALKER, JJ.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
April 21, 2005
NOTES
1.
See Tex. R. App. P. 47.4.
2.
Huff basically argues that there was no underlying theft because the property he
retrieved belonged to Johnson’s ex-wife.
3.
Huff makes a number of additional statements in his brief that we consider for
our factual sufficiency examination only. See Zuniga, 144 S.W.3d at
484, 486-87 (stating that a proper factual sufficiency review requires an
examination of all the evidence). For example, Huff argues that
“Johnson’s claim that the incident was a robbery is simply not believable”
because “Johnson admitted that [Wilson] had told him that he (Johnson) knew
what this was about.” Huff states that “there was no evidence as to
what happened to the items that were taken” and that “[t]he complaining
witness’s description of the items taken was quite vague.”