Grumbles, Ricky Glen v. State

• Court: Court of Appeals of Texas
• Decided: November 6, 2003
• Docket: 08-01-00436-CR
• Status: Published

Opinion

Becker v. State COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

)

RICKY GLEN GRUMBLES,

) No. 08-01-00436-CR )

Appellant,

) Appeal from )

v.

) 70th District Court )

THE STATE OF TEXAS,

) of Ector County, Texas )

Appellee.

) (TC# A-28,268)

O P I N I O N

Ricky Glen Grumbles appeals his conviction for two counts of aggravated robbery, enhanced by two prior felony convictions. A jury found Appellant guilty and assessed his punishment at imprisonment for a term of ninety-nine years. The trial court entered in the judgment an affirmative finding on the use of a deadly weapon. Tex.Code Crim.Proc.Ann. art. 42.12, § 3g(a)(2)(Vernon Supp. 2003). We affirm.

FACTUAL SUMMARY

Sheila and Bob Black were at their home in Odessa on the evening of April 15, 2000. At about 8:30 p.m., Sheila was in the kitchen fixing supper because they were expecting Sheila's stepbrother, James Glidwell, to arrive. While Bob was in the bathroom, a man later identified as Appellant knocked on the door and said that he needed to speak with Sheila's husband about moving their Cadillac into the garage because he was going to work on it. Sheila invited him in and he sat down at the table. They made small talk until Bob stepped back into the kitchen. When Bob asked how he could help him, Appellant lifted up his shirt, pulled out a large chrome handgun from inside his pants, and pointed it at them. Appellant then ordered them to sit down with their backs to him. While holding the gun by their heads, he told them that Bob had made some enemies and he had been hired to rob them and have sex with Sheila while Bob was forced to watch. Both Bob and Sheila believed he was going to kill them.

Appellant removed Sheila's necklace, earrings, and a ring and demanded Bob's jewelry and guns. He also took Bob's wallet which contained about $12,000 in cash. Appellant forced the Blacks to crawl from the kitchen to the bedroom and then lay face down on the bed. He tied their hands and feet with pieces of a pillowcase. Appellant went into the closet and retrieved two rifles and a shotgun. Upon seeing a pair of boots in the closet, he also questioned Bob about his boot size but he did not take them as they were the wrong size. Appellant sat down in a rocking chair next to the bed and pointed the gun to Sheila's temple while asking her whether there was anything else of value in the house. Appellant asked Bob whether he had another billfold in his pocket. Bob told him yes and Appellant pulled a billfold containing $5,000 out of Bob's back pocket. He also took jewelry out of a jewelry case in the bedroom as well as Bob's ring and Rolex watch from the kitchen. At about this time, the Blacks heard James Glidwell briefly knock on the door, then he entered the house and gave them his normal greeting. Shortly thereafter, the Blacks heard four gunshots. Bob was somehow able to get his knife out of his pocket and freed their hands and Bob's feet. When Sheila rolled over, she saw James leaning against their bedroom door covered in blood. Sheila, whose feet were still tied, hopped to the phone and called 911 while Bob helped James to the floor. Appellant had shot James four times at close range injuring his chest, abdomen, and arm. Appellant immediately fled the residence with the Blacks' property. The emergency dispatcher gave Sheila instructions to assist James until help could arrive. Within a few minutes, sheriff's deputies and an ambulance arrived at the residence. The ambulance transported James to a hospital where he underwent emergency surgery necessary to save his life.

Sheriff's deputies obtained a description of the robber from the Blacks. They described him as a white male in his late 30's, with a mustache, white baseball cap, white tennis shoes, and a western style plaid shirt. The officers also learned that the suspect had been driving a white pickup. Approximately thirty minutes after the robbery, Allen Chitwood, a Midland County Deputy Sheriff, heard the broadcast about the robbery and saw a white pickup near the airport in Midland. The driver of the vehicle matched the description given of the robber. At trial, Chitwood identified the driver of the white pickup as Appellant. Chitwood stopped the pickup but Appellant would not get completely out of the pickup. Appellant kept the right side of his body turned as he motioned for Chitwood to approach. Concerned for his safety, Chitwood refused. Appellant suddenly got back in the pickup and fled. Appellant drove a short distance before crashing through a barbed wire fence into a pasture. Appellant continued driving through the pasture but Chitwood did not pursue him in the patrol car because he was familiar with the area and knew his patrol car could not handle the rough terrain. Chitwood and other deputies attempted to organize a perimeter around the area but Appellant managed to evade them. They later found the vehicle in another part of the pasture. In the vehicle, investigators found eleven rounds of 9 mm ammunition. Additionally, they recovered Bob Black's rifles and a shotgun under some mesquite bushes approximately fifty to seventy-five yards from the white pickup.

Shirley Timmons, a forensic artist, met with Sheila Black on the day following the robbery and created a composite sketch of the assailant. The sketches were publicized by releasing them to the local news media and a lead developed within a few days. Based upon this lead, the investigation began to focus on Appellant. The investigators contacted Appellant's girlfriend, Janis King, and obtained information regarding his whereabouts. They initially attempted to locate Appellant at a bar but he fled in a blue and gray Suburban which he had purchased for $1,200 cash only one or two days after the robbery. Curtis Becker, a sergeant with the Texas Rangers, fired five shots at Appellant as he drove past because he believed Appellant was going to run over Sergeant Roddy Eaton of the Ector County Sheriff's Office. The shots did not strike Appellant and because he drove his vehicle through a pasture, officers were unable to follow in their patrol cars. King later informed the investigators that Appellant was in Room 107 at the Super 8 Motel in Odessa. Law enforcement personnel executed a search warrant at the motel but did not find Appellant.

On April 18, 2000, Mike Tacker of the Odessa Police Department met with Carl Rogers, and Curtis Becker to participate in a manhunt for Appellant in an area where he had been spotted. While talking with other law enforcement personnel, Tacker saw Appellant looking out of an abandoned house. Officers secured the perimeter around the residence and fired OC pepper spray into the building after Appellant refused repeated requests to surrender. Fearing that Appellant had escaped, they approached with K-9 dogs and determined that Appellant was still hidden in the building. The officers entered and found Appellant hiding in the kitchen cabinets. They also found $8,800 in the house.

Appellant initially refused to submit to an interview or give a statement about the robberies and shooting of Glidwell. Following his arraignment on the attempted capital murder charge, however, Appellant asked if he could speak with the investigators. Thus, on April 22, 2000, Appellant waived his rights and gave a recorded statement to Carl Rogers. Appellant insisted that he acted alone in committing the offenses and he had made the statements to the Blacks about committing the crimes on behalf of someone else because he wanted to scare them in the hope that they would not identify him. Appellant decided to rob the Blacks because he knew Black had a habit of keeping large sums of money in his truck. After taking numerous items of property including Bob's wallets, jewelry, and the guns, Appellant heard a door open. He ran into the utility room where he saw Glidwell and "just started shooting." Appellant shot Glidwell from a distance of no more than four or five feet. He did not recall Glidwell saying anything or doing anything that he considered confrontational or aggressive. After shooting Glidwell, Appellant returned to the bedroom for the guns and other property and ran out of the house.

Sandra Kay Baker, Appellant's cousin, spoke with Appellant following his arrest. He instructed her to rent Room 107 at the Super 8 because there was money hidden in the room. He asked her to get the money and send it to his mother. On May 4, Baker went to Room 107 and found eighteen $100 bills hidden under the carpet. Unaware of Appellant's involvement in the robbery, she put the money in a coffee can and took it back to her home with the intention of sending it to Appellant's mother. That same day, she was contacted by Sergeant Carl Rogers with the Ector County Sheriff's Department. Rogers met with her and she turned over the money to him. Rogers later found an additional twenty $100 bills hidden under the carpet in Room 107. In the same room, he found the 9 mm weapon used in the robbery. It had been hidden beneath a nightstand. A grand jury indicted Appellant for the attempted capital murder of Glidwell (Count I) and the aggravated robberies committed against the Blacks (Counts II and III). The jury could not reach a verdict on the attempted capital murder charge but found Appellant guilty of Counts II and III. The trial court granted a mistrial as to Count I but accepted the guilty verdicts over Appellant's objection.

FINDINGS OF FACT

In Issue One, Appellant complains that the trial court failed to file findings of fact and conclusions of law with respect to the voluntariness of Appellant's statements. By written order, we abated the appeal so that findings of fact and conclusions of law could be entered pursuant to Tex.Code Crim.Proc.Ann. art. 38.22, § 6 (Vernon 1979). The trial court's findings and conclusions have since been made part of the appellate record. Issue One is overruled.

ADMISSIBILITY OF STATEMENTS

In Issue Two, Appellant contends that the trial court erred in admitting two of his statements and evidence discovered as a result of his statements because he was not given the warnings required by Miranda ⁽¹⁾ or Article 38.22, § 2. Additionally, he argues that the trial court erroneously concluded that he was not in custody when his second statement was made. After initially refusing to waive his Miranda rights and speak with law enforcement officials, Appellant made three different statements: an oral statement on April 22, 2000 (Statement No. 1); an oral statement on May 4, 2000 (Statement No. 2); and a written statement on October 13, 2000 (Statement No. 3). We will separately address Appellant's arguments pertaining to Statements 1 and 2.

Statement No. 1

Statement No. 1 is a recorded statement and contains the following admonitions provided by Deputy Carl Rogers:

Let me do this at this point. I'm going to read you again -- I know you've heard this several times, but I'm going to read it to you again for purposes of the case. You have the right to remain silent; anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have them present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish. You can decide to at anytime to exercise these rights and not answer any further questions or make any further statements. [Emphasis added.]

Appellant waived these rights and gave a recorded statement to Rogers and the other law enforcement officers present regarding his commission of the robberies and the shooting of Glidwell. At trial, Appellant generally objected to the admission of Statement No. 1 on the ground that he had not been given the warnings required by Article 38.22, § 2. When asked by the trial court to be more specific, Appellant stated that the warnings given did not strictly comply with subsections 1 through 5 of the statute. The trial court overruled the objection and admitted the recorded statement. In written findings of fact and conclusions of law, the trial court found that Appellant was provided with the warnings required by Article 38.22, § 2(a) and voluntarily waived them.

Although Appellant complained at trial that none of the warnings were adequate, his argument on appeal centers on the warnings required by Article 38.22, § 2(a)(1) and (2):

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court.

Tex.Code Crim.Proc.Ann. art. 38.22, § 2(a)(1), (2).

An oral recorded statement of an accused is inadmissible unless he is given the warnings set forth in Article 38.22, § 2(a). Tex.Code Crim.Proc.Ann. art. 38.22, § 2(a). Warnings which convey the exact meaning of the statute but in slightly different language are sufficient to comply with the statutory requirements. White v. State, 779 S.W.2d 809, 827 (Tex.Crim.App. 1989), cert. denied, 495 U.S. 962, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990). Citing State v. Subke, 918 S.W.2d 11 (Tex.App--Dallas 1995, pet. ref'd), Appellant argues that the warnings given did not comply with the statute because he was not advised that the statement could be used against him at his trial, but was only told it could be used against him in a court of law. In Subke, the officer taking the videotaped statement advised the defendant that his statement would be used against him at his trial but he did not warn Subke that it could be used against him in a court. Subke, 918 S.W.2d at 12. Subke filed a motion to suppress because both warnings had not been given. Id. at 13. Finding that there was a difference between statements being used in "trial" and "in court," the trial court granted the motion to suppress, and the State appealed. Id. The Dallas Court of Appeals held that the Legislature deliberately placed both warnings in the statute to inform the accused of his rights. Id. at 14-15. Because Subke was not informed that any statement could be used against him in court, the court of appeals rejected the State's argument that there had been substantial compliance. Id.

The instant case presents the opposite situation. Here, the warnings informed Appellant that the statements could be used against him "in a court of law," but did not specifically inform him that it could be used at his trial. As such, the warning given combined elements of subsections (a)(1) and (a)(2). Unlike what occurred in Subke, there has not been a total failure to provide one of the warnings. We conclude that the warnings given conveyed the exact meaning of the statute but in different language. It is common knowledge that trials take place in court. A person who is warned that his statement will be used against him in a court of law would understand that it could be used against him at his trial. Because the warnings substantially complied with Article 38.22, § 2(a), the trial court did not abuse its discretion in admitting Statement No. 1.

Statement No. 2

The following evidence was introduced outside the presence of the jury. Appellant agreed to submit to a polygraph examination and was taken to the DPS offices on May 4, 2000. Polygraph examiner David Crider conducted a pre-interview of Appellant in the presence of the same officers who conducted the first interview of Appellant--Carl Rogers and Curtis Becker. The substance of the entire conversation was not shown at trial but Rogers stated the following regarding the pre-interview:

[Rogers]: [Appellant] was taken over there, he was pre-interviewed by the polygraph operator, David Crider. During the course of their interview -- that interview the subject of the gun came up. And the end result was that [Appellant] made a verbal statement as to where that gun could be located as far [as] he knew at that time.

Appellant told Crider that the gun he had used in the robbery was hidden in Room 107 at the Super 8 Motel. ⁽²⁾ Rogers and Becker went to the Super 8 Motel and learned that Appellant's cousin, Sandra Baker, had rented Room 107 that same day. Rogers obtained a consent to search the room from Baker and found the gun hidden under the nightstand. Appellant objected to the admission of any statements about the discovery of the gun because the statement had not been record as required by Article 38.22, he had not been given his Article 38.22 or Miranda warnings, and no new evidence was discovered. The trial court overruled the objections and permitted Rogers to testify that he recovered the 9 mm weapon from Room 107 of the Super 8 Motel "as a result of information received in a meeting that day with [Appellant]." In the written findings of fact and conclusions of law, the trial court found that Appellant was in custody but not subjected to custodial interrogation when he made the statement. Additionally, the court determined that Article 38.22, § 2(a) did not apply to the statement because it contained assertions of fact which led to the discovery of the instrumentality of the crime.

On appeal, Appellant argues that the statement is inadmissible because he was not given his Miranda or statutory warnings prior to making the statement regarding the gun's location. The State concedes that Appellant was in custody when he made the statement but argues that no warnings are required because the statement is admissible under Article 38.22, § 3(c). ⁽³⁾ Before addressing the State's argument, we will examine the trial court's conclusion that Appellant was not subjected to custodial interrogation, and therefore, there was no necessity that he be warned.

In the hearing conducted outside the presence of the jury, the State established that the polygraph examiner Crider interviewed Appellant in the presence of Rogers and Becker. The State failed to offer any evidence regarding the nature of the questions put to Appellant by Crider or how Crider broached the subject of the gun used to commit the offenses. Given that the record shows Appellant made the statement in the course of an interview about the robberies and shooting and there is no evidence that Appellant simply blurted out the information regarding the gun's location, the State failed to prove that the statement was not the product of custodial interrogation. We will next consider the State's argument that no warnings are necessary under Article 38.22, § 3(c), which provides:

Subsection (a) of this section ⁽⁴⁾ shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.

Tex.Code Crim.Proc.Ann. art. 38.22, § 3(c)(Vernon Pamph. 2003).

Although Section 3(c) dispenses with the statutory warnings, Miranda warnings are still required. See Robertson v. State, 871 S.W.2d 701, 714 (Tex.Crim.App. 1993); Braddock v. State, 5 S.W.3d 748, 753-54 (Tex.App.--Texarkana 1999, no pet.). Although Appellant had been previously warned on April 22, the State presented no evidence that he was given Miranda warnings more than a week later on May 4. Therefore, the evidence regarding Appellant's statement leading to the discovery of the gun should not have been admitted at trial.

Harm Analysis

The admission of Appellant's statement regarding the location of the weapon is a constitutional error that requires a harm analysis. Mendez v. State, 56 S.W.3d 880, 893 (Tex.App.--Austin 2001, pet. ref'd), citing Evans v. State, 534 S.W.2d 707, 710-11 (Tex.Crim.App. 1976); Muttoni v. State, 25 S.W.3d 300, 308 (Tex.App.--Austin 2000, no pet.). The appropriate standard is that found in Tex.R.App.P. 44.2(a) which requires the appellate court to reverse unless it is determined beyond a reasonable doubt that the error did not contribute to the conviction or punishment. If there is a reasonable likelihood that the error materially affected the jury's deliberations, then the error was not harmless beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000). We must be able to conclude from the record that the erroneously admitted evidence was, in fact, harmless beyond a reasonable doubt. See id. An appellate court should not focus on the propriety of the outcome of the trial. Id.; Garcia v. State, 919 S.W.2d 370, 380 (Tex.Crim.App. 1994). Instead, the appellate court should calculate as much as possible the probable impact of the error on the jury in light of the existence of other evidence. Wesbrook, 29 S.W.3d at 119. While the most significant concern must be the error and its effects, the presence of overwhelming evidence supporting the finding in question can be a factor in the evaluation of harmless error. Id. If an appellate court rules that an error is harmless, it is in essence asserting that the nature of the error is such that it could not have affected the jury. Id. A reviewing court asks if there was a reasonable possibility that the error, either alone or in context, moved the jury from a state of non-persuasion to one of persuasion as to the issue in question. Id.

In addition to the evidence adduced through the State's witnesses, the jury had before it Appellant's recorded statement admitting that he had threatened the Blacks with a gun during the robbery and had shot Glidwell. The admission of Appellant's statement regarding the location of the gun would have had little effect on the jury in light of all the other evidence demonstrating his guilt of the aggravated robberies. Finding beyond a reasonable doubt that the error did not contribute to Appellant's conviction or punishment, we overrule Issue Two.

MISTRIAL

In his third issue, Appellant argues that the trial court should not have received a "partial verdict" but rather should have granted a mistrial as to the entire case when the jury could not reach a unanimous verdict on Count I. According to Appellant, there is no specific authority for the trial court's decision to receive the verdicts on Counts II and III and grant a mistrial on Count I.

Two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode. Tex.Code Crim.Proc.Ann. art. 21.24(a)(Vernon 1989). The verdict in every criminal case must be general. Tex.Code Crim.Proc.Ann. art. 37.07, § 1(a)(Vernon 1981). If an indictment contains more than one count, the jury must return separate verdicts as to each count. Tex.Code Crim.Proc.Ann. art. 37.07, § 1(c). When the jury has reached a unanimous verdict, the trial court is mandated to enter the verdict on its minutes. Tex.Code Crim.Proc.Ann. art. 37.04 (Vernon 1981). ⁽⁵⁾

If a jury is unable to reach a unanimous verdict, however, the trial court may in its discretion grant a mistrial and discharge the jury. Tex.Code Crim.Proc.Ann. art. 36.31; Jackson v. State, 17 S.W.3d 664, 676 (Tex.Crim.App. 2000).

Here, the State properly joined the attempted capital murder and two robbery offenses in a single indictment containing three counts pursuant to Article 21.24(a). In accordance with Article 37.07, § 1(c), the trial court required that the jury return separate general verdicts, guilty or not guilty, as to each of the three counts. Appellant argues that the receipt of the two guilty verdicts violates Article 37.07, § 1(a)'s requirement of a general verdict. We disagree. By separate general verdicts, the jury unanimously found Appellant guilty of Counts II and III. The trial court's receipt of those general verdicts does not violate Article 37.07, § 1(a). Given that the jury reached unanimous verdicts as to Counts II and III, the trial court had no discretion to grant a mistrial as to those two counts but rather was obligated to enter them on the minutes of the court. Issue Three is overruled.

PUNISHMENT EVIDENCE

In his final issue, Appellant asserts that the trial court erred by admitting victim impact testimony by James Glidwell at the punishment stage when a mistrial had been granted as to the attempted capital murder count. The trial court permitted Glidwell to testify regarding the extent of his permanent physical injuries, his inability to work, medical expenses, and the effect of the shooting on his family and personal relationships and overall quality of life.

Preservation of Error

On appeal, Appellant argues that Glidwell's victim impact testimony is irrelevant and that its probative value is substantially outweighed by the danger of unfair prejudice. At trial, however, Appellant raised only a relevancy objection to the evidence. Therefore, our analysis will be limited to the relevancy issue. See Tex.R.App.P. 33.1; Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997)(To preserve error for review on appeal, a defendant's complaint on appeal must comport with the objection raised at trial).

Standard of Review

A trial court has broad discretion in determining the admissibility of punishment evidence. See Davis v. State, 68 S.W.3d 273, 282 (Tex.App.--Dallas 2002, pet. ref'd); Moreno v. State, 1 S.W.3d 846, 861 (Tex.App.--Corpus Christi 1999, pet. ref'd). In non-capital felony cases, the State may present evidence as to any matter the trial court deems relevant to sentencing, including evidence of other crimes or bad acts. See Tex.Code Crim.Proc. Ann. art. 37.07, § 3(a)(1)(Vernon Supp. 2003); Davis, 68 S.W.3d at 282; Tracy v. State, 14 S.W.3d 820, 825 (Tex.App.--Dallas 2000, pet. ref'd). At the punishment hearing, relevant evidence is that which assists the fact finder in assessing the appropriate sentence under the circumstances. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999); Davis, 68 S.W.3d at 282-83. The relevancy of victim impact evidence depends on whether it has "some bearing on the defendant's 'personal responsibility and moral guilt.'" Stavinoha v. State, 808 S.W.2d 76, 79 (Tex.Crim.App. 1991). Once found guilty, a defendant's moral culpability includes both the results of the offense actually intended and the results that should have been anticipated. See Miller-El v. State, 782 S.W.2d 892, 897 (Tex.Crim.App. 1990). Victim impact testimony concerning the effect the offense had on the victim or the victim's family is generally relevant. See Richardson v. State, 83 S.W.3d 332, 360 (Tex.App.--Corpus Christi 2002, pet. ref'd)(evidence regarding effect of crime on victim's children); Moreno v. State, 38 S.W.3d 774, 778 (Tex.App.--Houston [14th Dist.] 2001, no pet.)(grandmother's testimony of psychological impact crime had on members of deceased's extended family, including suicide of deceased's uncle); We will not disturb a trial court's determination regarding the admissibility of victim impact evidence unless an abuse of discretion has been shown. See Mosley v. State, 983 S.W.2d 249, 262 (Tex.Crim.App. 1998).

In Cantu v. State, 939 S.W.2d 627 (Tex.Crim.App. 1997), the Court of Criminal Appeals addressed the admissibility of victim impact evidence pertaining to a murder victim not named in the indictment. The evidence showed that Appellant, along with other actors, brutally raped and murdered Jennifer Ertman and Elizabeth Pena during the course of the same criminal episode. Cantu, 939 S.W.2d at 631-32. A jury convicted Appellant of the capital murder of Ertman. Id. at 631. The charge pertaining to Pena's murder was not included in the indictment. During the punishment phase of trial, the State offered victim impact testimony through Pena's mother. Id. at 635. She described for the jury what her daughter had been like in life and described the impact of her death on the family. Id. The Court of Criminal Appeals held that "extraneous" victim impact evidence pertaining to a victim not named in the indictment is irrelevant under Rule 401. Id. at 637. Further, the danger of unfair prejudice with respect to a victim not named in the indictment is unacceptably high. Id. The Court, however, did not reverse Cantu's conviction because it found the evidence harmless under the circumstances of the case. Id. at 637-38.

At first blush, the instant case appears to be distinguishable from Cantu in that the attempted capital murder charge was included in the same indictment as the two aggravated robberies. But this is a distinction without a difference. Even though the attempted capital murder charge pertaining to Glidwell was included in the indictment, the jury was unable to unanimously conclude that Appellant was personally and morally culpable for the intended and foreseeable results of Glidwell's shooting. Because Appellant has not been found guilty of attempted capital murder, the trial court abused its discretion in admitting this victim impact evidence.

As a general rule, error in the admission or exclusion of evidence does not rise to a constitutional level. Arzaga v. State, 86 S.W.3d 767, 776 (Tex.App.--El Paso 2002, no pet.). Therefore, we apply the harmless error standard found in Tex.R.App.P. 44.2(b). Under this rule, the erroneous admission of evidence warrants reversal only if the evidence had a substantial and injurious effect or influence in determining the jury's verdict. See Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). If the error had no influence or only a slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). However, if the reviewing court harbors "grave doubts" that an error did not affect the outcome, that court must treat the error as if it did. United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986); Webb v. State, 36 S.W.3d 164, 182-83 (Tex.App.--Houston [14th Dist.] 2000, pet. ref'd). The United States Supreme Court has defined "grave doubt" to mean "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." O'Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). If the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, i.e., as having a substantial and injurious effect or influence in determining the jury's verdict. Id. In assessing the likelihood that the error adversely affected the jury's decision, we consider everything in the record, including all testimony and evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the error might have been considered in connection with other evidence in the case. See Morales, 32 S.W.3d at 867. We may also consider the State's theory of the case, any defensive theories, closing arguments, and voir dire. See Morales, 32 S.W.3d at 867; Arzaga, 86 S.W.3d at 776.

The jury properly had before it all of the evidence adduced during guilt-innocence. ⁽⁶⁾ That evidence showed that Appellant committed a pre-meditated and armed robbery of the Blacks. During the course of the robbery, Appellant terrorized the Blacks and threatened to sexually assault Sheila Black in front of her husband. During his immediate flight from the robbery and subsequent efforts to elude the police over the next few days, Appellant endangered the lives of both law enforcement officers and citizens. The evidence also showed that Appellant had previously been convicted of possession of methamphetamine, aggravated robbery with a firearm, and arson. Additionally, Appellant admitted during his punishment phase testimony that he had stolen the truck he used in the instant offenses. He had also committed the theft of several saddles and two utility trailers. When asked whether he had learned anything from his prior aggravated robbery conviction, Appellant conceded that he had not. The victim impact testimony was not limited to that offered by Glidwell. Mrs. Black testified that as a result of the offense, she and her husband had moved to a new home. The Blacks had become fearful and afraid to go out alone. They no longer listed their telephone number and did not permit strangers to come into their home. Due to the stress, Mr. Black developed a bleeding ulcer which had required significant medical treatment.

The punishment evidence and the prosecutor's final argument focused extensively on the facts pertaining to the aggravated robberies and Appellant's prior criminal history and unadjudicated bad acts. Understandably, the State paid particular attention to the prior aggravated robbery conviction and Appellant's admission that he had not learned anything from his prior conviction and imprisonment for that offense. Although the prosecutor made a brief reference to Glidwell's victim impact testimony during final argument, the jury was urged to assess a maximum sentence based upon the facts of the aggravated robbery cases and Appellant's criminal record. Under these circumstances, we are unable to conclude that the erroneous admission of the victim impact evidence had a substantial and injurious impact on the jury's punishment verdict. Accordingly, Issue Four is overruled. The judgment of the trial court is affirmed.

November 6, 2003

ANN CRAWFORD McCLURE, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

1. Miranda v. Arizona

, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2.

During his original statement, Appellant had repeatedly insisted that he would take a polygraph examination regarding his account of the robberies and shooting.

3.

Tex.Code Crim.Proc.Ann. art. 38.22 (Vernon Pamph. 2003).

4.

Among other things, Article 38.22, § 3(a) provides that an oral statement is not admissible unless the warnings required by Article 38.22, § 2(a) are provided to the accused. Tex.Code Crim.Proc.Ann. art. 38.22, § 3(a)(Vernon Pamph. 2003).

5.

Article 37.04 provides: "When the jury agrees upon a verdict, it shall be brought into court by the proper officer; and if it states that it has agreed, the verdict shall be read aloud by the judge, the foreman, or the clerk. If in proper form and no juror dissents therefrom, and neither party requests a poll of the jury, the verdict shall be entered upon the minutes of the court."

6.

Even if the State had not charged Appellant with attempted capital murder in the indictment, the evidence pertaining to Glidwell's shooting would have been admissible as same transaction contextual evidence. See generally Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993); Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App. 1993); Mayes v. State, 816 S.W.2d 79, 84-87 (Tex.Crim.App. 1991). Such evidence imparts to the trier of fact information essential to understand the context and circumstances of events which, although legally separate offenses, are factually blended or interwoven. Camacho, 864 S.W.2d at 532.