Rickey Dewayne Webber v. State

• Court: Court of Appeals of Texas
• Decided: April 15, 2004
• Docket: 08-03-00177-CR
• Status: Published

Opinion

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

)

RICKEY DEWAYNE WEBBER,

) No. 08-03-00177-CR )

Appellant,

) Appeal from )

v.

) 283rd District Court )

THE STATE OF TEXAS,

) of Dallas County, Texas )

Appellee.

) (TC# F-0176323-RT)

O P I N I O N

Rickey Dewayne Webber appeals his capital murder conviction. A jury found Appellant guilty and the trial court assessed an automatic life sentence. See Tex.Code Crim.Proc.Ann. art. 37.071, § 1 (Vernon Supp. 2004). 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. 2004). We affirm.

FACTUAL SUMMARY

On the evening of November 11, 2001, Reynaldo Rico went to the Military Quick Stop, a combination store-restaurant, where his younger brother, Jesus, worked as a stocker and cook. Reynaldo ate and watched television while waiting for the store to close. Michael Head was also working in the store that evening. While Jesus was in the cooler stocking soft drinks, a short, stocky black male came into the store. He wore a muscle shirt and jeans and had a red and blue Polo shirt draped over his shoulder. The man walked to the counter, purchased something and walked out. Moments later, a second black male walked into the store. This man was taller and thinner than the first and wore a grey hooded sweatshirt. He also purchased something and left. A short time later, Reynaldo heard the door open but he continued watching TV. By this time, Jesus had come out of the cooler and he saw a short stocky black male purchasing cigarettes from Head. The man was wearing a red Polo shirt. After making his purchase, he stood at the counter and twice looked back over his shoulder at the door. In Jesus's opinion, it appeared as though he were giving a signal. The man in the grey hooded sweatshirt then walked into the store holding a gun and the shorter man ran around behind the counter to the cash register.

Reynaldo had not seen any of this but he looked up when he heard someone say, "Give me your money." Reynaldo turned around and saw the man with the hooded sweatshirt holding a long revolver and pointing it at Head. He also saw the same short stocky man behind the counter getting the money from the cash register. He noticed that the short stocky man had pulled on the Polo shirt which he had carried the first time he came in the store. Jesus saw Head open the cash register and back away. Jesus and Reynaldo heard both men telling Head to give them the rest of the money. When the robbers saw Reynaldo and Jesus, they told them to get down on the floor. Suddenly, Reynaldo and Jesus heard the stocky robber yell, "[H]e has a gun" and then they heard a shot. After the shot, the robbers attempted to find the VCR tape for the security system. When they could not find the tape, they removed the VCR itself and ran out of the store. Jesus locked the door and pushed the silent alarm while Reynaldo called 911. They then attempted to help Head who was on the floor next to his gun. He had been shot in the chest. The police and emergency services arrived shortly thereafter but Head had died almost immediately because the slug had penetrated his heart. Reynaldo and Jesus gave written statements to the police that evening. Reynaldo estimated the stocky robber's height at 5 feet 5 inches. Jesus opined that he was about 5 feet 6 inches tall and appeared a "little bit strong." The police showed photo lineups to Reynaldo and Jesus but they could not identify anyone because they had not clearly seen the robbers' faces.

Police investigators obtained a latent fingerprint from the cash box underneath the counter at the scene of the robbery. That latent print, which was unusually clear, was analyzed with the assistance of AFIS (Automated Fingerprint Identification System) and it identified Appellant as a suspect. A fingerprint expert then compared the latent print with the known prints of Appellant and determined that it matched Appellant's right index fingerprint. Police obtained a warrant to arrest Appellant for the capital murder of Head.

Appellant was arrested at his apartment on December 17, 2001. When police entered the apartment, Detective Daniel Moreno found Appellant on the floor of the apartment watching television. He had one hand underneath a pillow. After the officers secured and handcuffed Appellant, Moreno found a Smith and Wesson .38 Special revolver underneath the pillow with three live rounds. According to Appellant's girlfriend, Kerressa Chumbley, Appellant had started carrying the weapon shortly before the murder. The weapon and slug removed from Head's body were submitted to a firearm and toolmark examiner for analysis. The examiner determined that the weapon had five lands and grooves with a right twist and the slug has the impression from being fired in a weapon with five lands and grooves with a right twist. The examiner could not conclusively determine that the bullet which killed Head was fired by the .38 Special seized from Appellant but he also could not eliminate it as the weapon.

Chumbley later visited Appellant in jail. During one of their conversations, Appellant started to cry and told Chumbley that he and J.D. Horton had planned the robbery but they did not intend to kill the complainant. When they saw that the complainant had a gun, Horton shot him with Appellant's gun to prevent him from shooting Appellant. Chumbley did not call the police and report what Appellant had told her. However, Detective Brent Maudlin later pulled the visitor's list from the jail and saw that Chumbley had visited Appellant. He visited Chumbley at her home and subsequently interviewed her at the police station. At the urging of her parents to tell what she knew, Chumbley told Maudlin what Appellant had said about the offense.

A grand jury indicted Appellant for intentionally causing Head's death while in the course of committing a robbery but the State did not seek the death penalty. The charge included parties instructions under Section 7.02(a) and (b) of the Texas Penal Code. The jury found Appellant guilty of capital murder as alleged in the indictment and the trial court assessed a life sentence.

FACTUAL SUFFICIENCY

In Issue One, Appellant challenges the factual sufficiency of the evidence to sustain his conviction. When conducting a review of the factual sufficiency of the evidence, we consider all of the evidence, both admissible and inadmissible, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex.App.--El Paso 1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder's determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set aside a verdict merely because we believe that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.

Appellant argues that the State's circumstantial evidence is so weak that the conviction is clearly wrong and manifestly unjust. In addition to asserting that the Rico brothers lack any credibility, he points out that they could not positively identify him as being either of the robbers. Appellant also maintains that there is no evidence excluding the possibility that he innocently placed his fingerprint on the cash box at some other point in time. He also questions Chumbley's veracity since their relationship had ended at the time she gave her statement to police. Finally, Appellant contends that he had no intent to kill.

Identity

The inability of the Rico brothers to make an in-court identification or pick out Appellant from a photo lineup is not fatal to the State's case so long as other evidence shows that Appellant was the perpetrator of the offense. See Clark v. State, 47 S.W.3d 211, 214-15 (Tex.App.--Beaumont 2001, no pet.); Conyers v. State, 864 S.W.2d 739, 740 (Tex.App.--Houston [14th Dist.] 1993, pet. ref'd). Appellant certainly challenged the credibility of the brothers but not to the point that it could be said that their testimony was completely unworthy of belief. Appellant, who was 5 feet 4 inches tall and weighed 150 pounds at the time of his arrest, matched the basic description of the short stocky robber who went behind the counter and grabbed the cash drawer. Further, his right index fingerprint was found on the cash drawer and there is evidence that it was placed their recently as it was unsmudged. The store owner, Peggy Chavez, testified that the cash box was inaccessible to the public and Appellant had never been an employee of the store. The jury also heard evidence of Appellant's confession to his girlfriend. Chumbley admitted that she and Appellant had engaged in some heated discussions in December 2001, but she still loved Appellant at the time he made the confession to her and she reported it to the police. Even taking into account any motivation by Chumbley to give a false statement, Appellant's confession is consistent with the testimony of the Rico brothers that the tall skinny robber shot Head after the stocky robber yelled that he had a gun. Finally, the gun found in Appellant's possession could not be eliminated as the gun which fired the fatal bullet. That is also consistent with Appellant's confession that Horton shot Head with Appellant's gun. Considering all of the evidence, we conclude that the evidence is factually sufficient to establish Appellant's identity.

Intent

Appellant also argues that the evidence is factually insufficient to show that he intended to kill Head. Intent is a fact question for the trier of fact, and it may be inferred from the acts, words, and conduct of the accused. Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999); Wallace v. State, 52 S.W.3d 231, 234 (Tex.App.--El Paso 2001, no pet.). As a result of its nature, mental culpability must generally be inferred from the circumstances under which a prohibited act or omission occurs. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991); Wallace, 52 S.W.3d at 235.

The trial court included in the charge an instruction under Section 7.02(b) of the Penal Code, which provides:

If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Tex.Penal Code Ann. § 7.02(b)(Vernon 2003).

Appellant told Chumbley that they had planned to commit the robbery but did not intend to kill the complainant. Even without Chumbley's testimony, there is other evidence showing the pair planned the robbery. Each man entered the store separately, approached the counter, and then left. Appellant returned, made a purchase, and then twice looked over his shoulder at the door. It appeared to Jesus Rico that Appellant was giving a signal to someone. The second time Appellant looked over his shoulder, Horton entered with a gun. Both men demanded money from Head and Appellant went behind the counter. Horton shot Head when Appellant yelled that he had a gun. Appellant and Horton then left the store with the money and the VCR used by the security system. This evidence is factually sufficient to show that Appellant and Horton conspired to commit the robbery and Horton killed Head in furtherance of the robbery. Additionally, the jury could have reasonably inferred from the evidence that Appellant should have anticipated that someone could be killed during the course of an armed robbery. See Williams v. State, 974 S.W.2d 324, 330 (Tex.App.--San Antonio 1998, pet. ref'd)(evidence factually sufficient show that defendant should have anticipated murder which occurred during course of pawn shop robbery where he knew co-conspirator had a gun). Appellant's claim that he did not intend for anyone to be killed during the robbery is irrelevant to a conviction under Section 7.02(b). See Ruiz v. State, 579 S.W.2d 206, 209 (Tex.Crim.App. [Panel Op.] 1979). We overrule Issue One.

PERSONAL KNOWLEDGE

In Issue Two, Appellant argues that the trial court abused its discretion by permitting Jesus Rico to speculate that the tall robber could not have taken the money from the cash register. The following exchange occurred during the State's re-direct examination of Jesus:

Q. The guy that came behind the counter, could you tell whether or not he was getting anything from either the cash register or from the cabinet below?

A. I didn't saw nothing, but I heard -- and when you pick up the money from the cash register, you could hear the little clicks on the money.

Q. Okay. And where was Mike at that point?

A. Right here (indicating).

Q. Okay. Was he lying down or was he still standing up?

A. He was still standing up.

Q. Okay. What was he doing with his hands?

A. Just like putting them in front of him.

Q. Like this?

A. Yeah.

Q. You could see that?

A. Yes.

Q. When you heard the clicks from money being taken out of the cash register, could you see where the guy with the gray sweatshirt was?

A. Yeah, he was right here.

Q. Is it possible that he was the one that was getting the money out of the cash register or the cash box?

A. No, sir.

At this point, Appellant objected to Jesus's testimony as speculation, but the trial court overruled the objection. The testimony continued:

Q. Is it possible that Mike was the one getting the money out of the cash register or the cash box?

Q. Who was the only person that it was possible to get the money out of the cash register or the cash box?

A. The guy behind the cash register.

Q. Okay. The stocky guy?

Q. Short guy?

A. (Indicating yes.)

Rule 602 provides that a witness may not testify to a matter unless "evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Tex.R.Evid. 602. Personal knowledge will often come directly from the witness's senses. See Fairow v. State, 943 S.W.2d 895, 898 (Tex.Crim.App. 1997). Under Rule 701, a witness may give a lay opinion or testify to an inference provided it is rationally based on the witness's perception. Tex.R.Evid. 701. We will not reverse the trial court's decision to admit evidence unless the record shows that the trial court abused its discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990)(opinion on reh'g). There is no abuse of discretion when the trial court's ruling lies within the zone of reasonable disagreement. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001).

The testimony at trial established that Jesus based his testimony on his observations. He could see where both robbers were located in relationship to the complainant and the cash drawer. Based upon these observations, Jesus drew an inference that only Appellant was in a position to reach the cash drawer and take the money. The trial court did not abuse its discretion in admitting the testimony. Issue Two is overruled.

APPELLANT'S CONFESSION

In Issue Three, Appellant contends that the trial court abused its discretion in admitting Chumbley's testimony about his confession because the prejudicial effect of the evidence outweighed its probative value. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex.R.Evid. 403. Only "unfair" prejudice provides the basis for exclusion of relevant evidence. Montgomery, 810 S.W.2d at 389. Unfair prejudice arises from evidence that has an undue tendency to suggest that a decision be made on an improper basis, commonly an emotional one. Id. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence is more probative than prejudicial. Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim.App. 2002). In determining whether the prejudicial effect of evidence substantially outweighs its probative value, several factors must be considered:

(1) how compellingly the evidence serves to make more or less probable a fact of consequence;

(2) the potential the evidence has to impress the jury in some irrational but indelible way;

(3) how much trial time the proponent needs to develop the evidence; and

(4) how great is the proponent's need for the evidence.

Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999). In evaluating the trial court's determination under rule 403, a reviewing court is to reverse the trial court's judgment "rarely and only after a clear abuse of discretion," recognizing that the trial court is in a superior position to gauge the impact of the relevant evidence. Mozon, 991 S.W.2d at 847.

At the conclusion of the hearing on the admissibility of this evidence, the trial court stated that the evidence was key to the State's circumstantial evidence case and it would not take a great deal of trial time to present the evidence. As asserted by the State, Appellant's confession linked him to the store at the time of the robbery and murder, making it more likely that he left his fingerprint on the cash drawer at the time of the offense. Thus, the trial court properly concluded that the evidence was a significant part of the State's case. Appellant does not identify any unfair prejudice arising from the evidence. Appellant does argue, however, that the evidence has little or no probative value because Chumbley is unworthy of belief. He does not cite any cases which support his argument. In our view, an evaluation of a witness's credibility is not the proper measure of the probative value of testimony. Taking the evidence as true, we determine its probative value by examining its propensity to prove or disprove a fact is issue. If we examined the probative value of evidence based on an assumption that the proffering witness lacks credibility, then Rule 403 would require the exclusion of evidence is every case where a witness's credibility has been challenged. Finding no abuse of discretion, we overrule Issue Three.

CROSS-EXAMINATION

In Issue Four, Appellant complains that the trial court improperly limited his cross-examination of Kerressa Chumbley. The trial court held a hearing outside the presence of the jury to determine the admissibility of Chumbley's testimony about the confession as well as impeachment matters. When police arrested Appellant at Chumbley's apartment, they transported Chumbley to the police station for questioning about her relationship with Appellant and her knowledge about the murder. Chumbley initially believed she had been taken to the police station because police had found marihuana in her apartment at the time they arrested Appellant but she was not arrested or handcuffed. Once at the station, however, they began questioning her about the murder. She told police that she had no knowledge about this particular case, but Appellant had committed other robberies in her presence. Chumbley maintained that she did not participate in any of these robberies. Chumbley went home after the questioning concluded. She flatly denied cooperating with police or giving a statement in order to resolve the potential marihuana charge. During the weeks following Appellant's arrest, Chumbley's relationship with Appellant became strained because he often accused her of "calling the police on him" and in early January he told her that he did not want to see her anymore. On January 7, 2002, however, Appellant called Chumbley and asked her to visit him. During this visit, Appellant confessed his involvement in the capital murder. Detective Maudlin also testified outside the presence of the jury. He recalled that Chumbley discussed the other robberies with them but he did not make any reference during questioning about illegal drugs found in the apartment and he never considered her a suspect in the robberies.

At the conclusion of the hearing, Appellant's counsel asserted that Chumbley had offered a false statement to police because she considered herself a suspect. But he noted that he could not cross-examine Chumbley about her motive for making the statement without opening the door to admission of Appellant's extraneous offenses. The trial court noted Appellant's quandary, specifically referring to it as a matter of trial strategy, but the court informed Appellant that if he opened the door during cross-examination of Chumbley, the extraneous offenses would be admitted.

Chumbley then testified before the jury about Appellant's confession to her and Appellant cross-examined her briefly, reserving his right to recall her during his case in chief. The trial court later held a second hearing to determine whether Appellant could question Chumbley about her motive for cooperating with police. Chumbley specifically testified that the police had not threatened her with jail if she did not give a statement against Appellant and she did not believe otherwise. Appellant's counsel, however, showed Chumbley two letters she had written to Appellant while he was in jail. In the second letter, written on December 31, 2001, Chumbley said:

I was thinking about how you said that I gave them a reason to link all this bullshit to you. You don't know what I went threw in that room that man told me everything I said to you on the phone that day I told you to watch the news, this is how he came at me when we was coming back from the restroom. He stopped & some man took 4 different up close pictures of me. So when we went back in the room he started telling me about the murder case and he said now we already know that Rickey was not the one who killed that man we know it was J.D. He didn't say James Horton he said J.D. So I was like I don't know nothin about it. He kept asking kept asking. So finally he left out for about 1 hour & came back with all these papers & files and he said what happened at the store with the Chinese man. And I said I don't know and he sat there for a min. and pulled out the police report and I overlooked it. I seen my car plates, described to the T. And he took it & said I'm going to ask you one more time what happen. My picture was on them files I asked him was you there and he was like no not yet. So when I was going back and forth to the restroom I seen your picture. I found out that night that they have been watching my car & both of us for the past 2 1/2 weeks. That man told me that my car has been involved in like 6 or 7 robberys [sic], and I was like I didn't know anything about it. I seen all these police reports with my car plates, dents and everything.

. . .

He asked me would I testify against you & J.D. on that issue you in there for and I told him I can't testify against something I don't know about and I'm not testifying against Rickey either. Now he told me that if I don't and they need me too then I could get some jail time. So that what I told my momma & we have our eyes set on 3 different lawyers. Why they let me go I don't know but hey I probably never will.

When questioned about her comments in the letter, Chumbley explained that the police had threatened her with jail if she withheld information about the crime. She did not feel pressured because she did not have any knowledge about the murder and it was her mother's idea to hire a lawyer. Chumbley made her final comment in response to Appellant's statement that she should be in jail for the marihuana found in the apartment.

Appellant's attorney requested that he be allowed to impeach Chumbley with certain statements contained in the letters with the understanding that it would not open the door to admission of the extraneous offenses. The trial court determined that Appellant could question Chumbley about her knowledge of Rickey's involvement in the capital murder and establish that she had this information at the time she went to visit him at the jail. Additionally, the court permitted Appellant to establish that the officers asked her if she would testify against Appellant and she said that she did not have any information. But if he impeached Chumbley with the statements showing she might have felt pressured by the police to give a statement or testify against Appellant, it would open the door for the State to show the matters she was aware of that might create that pressure, namely, the extraneous offenses. Appellant complained that the ruling violated his substantial rights because he would not be permitted to show Chumbley's bias and motive for cooperating with police and giving the statement about the confession.

The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. U.S. Const. Amend. IV. A primary interest secured by the Confrontation Clause is the right of cross-examination. Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App. 2000). This constitutional right of confrontation is violated when appropriate cross-examination is limited. Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996). Appropriate cross-examination includes all avenues reasonably calculated to expose a motive, bias, or interest for the witness to testify. Carroll, 916 S.W.2d at 497. A trial judge is permitted, however, to place reasonable limits on cross-examination. See Carroll, 916 S.W.2d at 498.

The trial court did not restrict Appellant's right of cross-examination. The trial court simply ruled that if Appellant asked certain questions which opened the door, the State would be permitted to introduce evidence regarding the extraneous offenses. Extraneous offenses may be admissible where the accused opens the door to their admission. See Monkhouse v. State, 861 S.W.2d 473, 476 (Tex.App.--Texarkana 1993, no pet.); Creekmore v. State, 860 S.W.2d 880, 892 (Tex.App.--San Antonio 1993, pet. ref'd)(op. on reh'g). Appellant was faced with a difficult choice but he was not prohibited by the trial court from asking the questions he wished to ask Chumbley. The difficulty of the choice does not impose an impermissible burden upon the right of confrontation. Cf. Cantu v. State, 738 S.W.2d 249, 256 (Tex.Crim.App. 1987)(acknowledging that decision whether to waive right against self-incrimination and testify, knowing that defendant will be subjected to cross-examination and possibility of opening the door to unfavorable evidence, including impeachment with prior criminal record, is a difficult one; nevertheless, difficulty of the choice does not impose an impermissible burden upon the exercise to Fifth Amendment rights and does not result in a constitutional violation). Issue Four is overruled.

HEARSAY

In Issue Five, Appellant asserts that the trial court abused its discretion by admitting hearsay over his objection. Detective Richard Moore is a fingerprint expert who compared the latent print found on the cash box with Appellant's prints and determined that the latent print matched Appellant's right index finger. During the State's direct examination, Moore explained the scientific methodology involved in fingerprint comparison and how he determined that the latent print matched Appellant's print:

[Moore]: Specifically, what you look for are identification points or minutia, which if you were to look at the friction ridges or the lines of your finger, some of the lines that continue through the print will come to an end or stop. That terminal end is an identification point, an ending ridge. There are other ridges that might flow through your finger that would split into two ridges. Where it splits is called a bifurcation. That bifurcation may continue along and then join together again, which would form two different bifurcations. Each of those bifurcations are identification points. And each time a fingerprint is taken, it is just like a rubber stamp, those identification points will be in the same spot each time. And as you look at one fingerprint against another, you will be able to count the ridges between each of these identification points. And according to the FBI, which is one of your sources of identification information, the FBI says that if you can find 12 points of identification --

[Appellant's counsel]: Objection. That is hearsay, Judge.

[The Court]: Well, overruled. Based upon his qualifications, he may testify to it.

[Moore]: If you can find 12 points of identification in the same relative position on both fingerprints, then you can say that those two fingers (sic) came from the same finger. You don't have to have more than that. But you can, in fact, in some cases make your identification with less than 12 points.

The State made no further reference to the twelve-point requirement, but in direct response to a question asked during cross-examination, Moore stated that he found twenty-nine points of identification on the latent print and Appellant's fingerprint.

"Hearsay" is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Hearsay is not admissible unless excepted by the rules of evidence, a statute, or a rule promulgated pursuant to statutory authority. Barnum v. State, 7 S.W.3d 782, 789 (Tex.App.--Amarillo 1999, pet. ref'd); Tex.R. Evid. 802. The facts or data upon which an expert bases an opinion or inference need not be admissible in evidence if they are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject. Tex.R.Evid. 703. Further, an expert witness may disclose on direct examination or be required to disclose on cross-examination the underlying facts or data supporting his expert opinion or inference. Tex.R.Evid. 705(a). When the underlying facts or data are inadmissible, the trial court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than an explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial. Tex.R.Evid. 705(d).

Assuming Moore's statement regarding the FBI's standard for fingerprint identification is hearsay, it is admissible under Rules 703 and 705. Appellant is highly critical of the trial judge's comment referring to the witness's qualification as an expert, but we believe the judge intentionally referenced Moore's expert witness status in an effort to explain why he overruled the hearsay objection. Appellant does not argue that the value of this evidence as support for the expert's opinion is outweighed by the danger that the evidence would be used for an improper purpose or by any unfair prejudice. Once again, we find no abuse of discretion and overrule Issue Five.

SECTION 7.02(B)

In Issue Six, Appellant contends that the trial court erred by including in the charge a conspiracy of parties theory under Section 7.02(b) of the Penal Code. He argues that the charge: (1) is inapplicable to capital murder cases because it dispenses with the culpable mental state applicable to capital murder cases, (2) violates the Eighth and Fourteenth Amendments as well Article I, Section 19 of the Texas Constitution because it is a comment on the weight of the evidence, (3) was not accompanied by an instruction that Appellant could be convicted of capital murder only if he had the requisite intent to kill, and (4) was not raised by the evidence.

When reviewing charge error, we employ a two-step analysis. Washington v. State, 930 S.W.2d 695, 698 (Tex.App.--El Paso 1996, no pet.). We must first determine whether error actually exists in the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); Washington, 930 S.W.2d at 698. In making this determination, we view the charge as a whole and our review is not limited to a series of isolated statements or portions of the charge standing alone. Washington, 930 S.W.2d at 698; see Holley v. State, 766 S.W.2d 254, 256 (Tex.Crim.App. 1989). Second, we must determine whether sufficient harm resulted from the error so as to require reversal. Almanza, 686 S.W.2d at 171; Washington, 930 S.W.2d at 698. Which harmless error standard applies depends upon whether the defendant objected. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994); Washington, 930 S.W.2d at 698. In a case where the defendant failed to object, he must show that he suffered actual egregious harm. Almanza, 686 S.W.2d at 171; Washington, 930 S.W.2d at 698. Where there has been a timely objection made at trial an appellate court will search only for "some harm." Abdnor, 871 S.W.2d at 732; Almanza, 686 S.W.2d at 171. Under Almanza, we examine the error in light of (1) the entire jury charge, (2) the state of the evidence, including the contested issues and the weight of the probative evidence, (3) the arguments of counsel, and (4) any other relevant information. Almanza, 686 S.W.2d at 171.

Turning to Appellant's first and third arguments, Section 7.02(b) allows criminal responsibility for the conduct of another, thereby eliminating the necessity for proof of intent to commit the felony actually committed, but it does not excuse the State from proving a culpable mental state. Gravis v. State, 982 S.W.2d 933, 938 (Tex.App.--Austin 1998, no pet.). The statute requires the state to show that the defendant had both the mens rea to engage in a conspiracy and the culpable mental state to commit the underlying, i.e., the intended, felony. Id. The mental state required for the underlying felony supplies the mens rea for the felony actually committed by the co-conspirator. Id. Therefore, the statute is applicable to capital murder cases. See Cienfuegos v. State, 113 S.W.3d 481, 494 (Tex.App.--Houston [1st Dist.] 2003, pet. stricken); Gravis, 982 S.W.2d at 938; see also Johnson v. State, 853 S.W.2d 527, 534 (Tex.Crim.App. 1992)(noting that court has continually held that Sections 7.01 and 7.02 are applicable to capital murder cases).

Citing Clark v. Louisiana State Penitentiary, 694 F.2d 75, 77-78 (5th Cir. 1982), Appellant next argues that the court's instruction constituted a comment on the weight of the evidence by imputing an intent to kill based solely on Appellant's participation in a robbery conspiracy. In Clark, the defendant was convicted of first-degree murder under Louisiana law and sentenced to death. The Fifth Circuit held the Fourteenth Amendment was violated by a jury instruction ⁽¹⁾ which relieved the State of its burden to prove beyond a reasonable doubt, without aid of any imputation from a lesser crime or the act of another, the specific intent to kill or inflict great bodily harm. The jury instruction in Clark varies from Section 7.02(b) and the jury instruction given in the instant case because it did not involve imputation of the intent to kill from a lesser crime. Further, the defendant did not argue and the court did not hold that the conspiracy instruction was a comment on the weight of the evidence. Finally, the instant case is distinguishable because Appellant was not assessed the death penalty. ⁽²⁾ The trial court's instruction tracked the language in Section 7.02(b) and did not comment on the weight of the evidence.

We also find that the Section 7.02(b) instruction is raised by the evidence. Appellant admitted to Chumbley that he and Horton intended to commit the robbery and other evidence corroborates that confession. Appellant and Horton entered the store individually as though they were "casing" it, and Jesus Rico believed that Appellant signaled Horton to enter the store the second time. Appellant did not hesitate when Horton pulled and gun and both men demanded the money from Head. There is also evidence from which the jury could infer that Appellant should have anticipated that a murder could occur during the armed robbery. The trial court did not err in giving the Section 7.02(b) instruction. Issue Six is overruled.

FINAL ARGUMENT

In his seventh and eighth issues, Appellant complains about the State's final argument. In Issue Seven, he asserts that the prosecutor improperly argued that in order to find Appellant not guilty, the jury would have to conclude that every witness was lying. He argues that the court should have granted his motion for mistrial because the prosecutor's argument impermissibly shifted the burden of proof from the State. During the State's rebuttal argument, the prosecutor argued:

For Rickey Webber to be not guilty, the Rico brothers have to be lying to you about what happened in the store. Both of them have to be lying to you. Detective Maudlin has to be lying to you about the participation of Kerressa Chumbley and whether or not there was some agreement by them. Kerressa Chumbley has to be lying to you about what the defendant told her at the jail and about whether or not the police had asked her to do this. She has to be lying for the defendant to be not guilty. Peggy Chavez has to be lying. She has to be lying about the procedures of the store or what she told the police. For the defendant in this case to be not guilty, every single person that testified in this case has to have been lying.

[Appellant's counsel]: Judge, that is improper argument and it is contrary to the law.

[The Court]: Well, the jury will make a determination, and I would sustain the objection to that wrong statement and the jury will disregard it.

[Appellant's counsel]: Move for a mistrial.

[The Court]: Denied.

Preservation of Error

To preserve error from jury argument, a party must object and pursue his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Furthermore, the objection at trial must comport with the complaint on appeal. See Tex.R.App.P. 33.1(a); Turner v. State, 87 S.W.3d 111, 117 (Tex.Crim.App. 2002), cert. denied, --- U.S. ----, 123 S.Ct. 1760, 155 L.Ed.2d 519 (2003). Appellant's general objection that the prosecutor's argument was "improper" and "contrary to the law" did not preserve his complaint on appeal that the argument impermissibly shifted the State's burden of proof. See Edwards v. State, 97 S.W.3d 279, 287 (Tex.App.--Houston [14th Dist.] 2003, pet. ref'd)(defendant waived for appellate review his claim that State's closing argument improperly asserted that defendant was confusing or misleading jury in prosecution for improper sexual activity with a person in custody and sexual assault, because defendant's objection at trial concerning State allegedly placing burden of proof on defendant did not comport with defendant's claim on appeal).

In Issue Eight, Appellant argues that the trial court abused its discretion in overruling his objection to the following argument by the prosecutor:

[T]here is no possible way consistent with innocence that Rickey Webber can put his fingerprint on that cash box.

Appellant objected that the argument to the argument as being outside of the record and inconsistent with the evidence. The trial court overruled the objection. On appeal, Appellant argues that the argument misstated the evidence and shifted the burden of proof to Appellant. With respect to the latter argument, Appellant did not object on this ground at trial. Therefore his complaint is waived. See Edwards, 97 S.W.3d at 287.

Appellant has preserved his argument that the prosecutor's argument misstated the evidence. Proper jury argument consists of: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex.Crim.App. 1973); Laca v. State, 893 S.W.2d 171, 185 (Tex.App.--El Paso 1995, pet. ref'd). In making this argument, the prosecutor referenced the testimony of the store owner, Peggy Chavez, who testified that the cash box was inaccessible to the public and Appellant had never been an employee of the store. Thus, the prosecutor's argument that Appellant had not innocently placed his fingerprint on the cash box is a reasonable deduction from the evidence. The trial court did not err in overruling the objection. Issues Seven and Eight are overruled.

CUMULATIVE ERROR

In Issue Nine, Appellant contends that the cumulative effect of the errors alleged in Issues One through Eight denied him a fair trial. Because each issue has been overruled, there is no cumulative error. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999)(holding that non-errors cannot in their cumulative effect cannot cause error). Issue Nine is overruled. We affirm the judgment of the trial court.

April 15, 2004

ANN CRAWFORD McCLURE, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

1. The jury was instructed: "Criminal conspiracy is defined in our code as the agreement or combination of two or more persons for the specific purpose of committing any crime. Providing that agreement or combination to commit a crime shall not amount to a criminal conspiracy unless in addition to such an agreement or combination one or more of such parties does an act in furtherance of the object of the agreement or combination. If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense. Each conspirator in a conspiracy is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby. Or whether the conspirator doing such an act or making such declaration be or be not on trial with his co-defendant."

2.

The Eighth Amendment does not permit imposition of the death penalty upon one who participates in a robbery but does not kill or contemplate the taking of a life. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).