Robinson v. State

989 S.W.2d 456, 1999 Tex. App. LEXIS 2658, 1999 WL 274128
CourtCourt of Appeals of Texas
DecidedApril 1, 1999
Docket01-97-00941-CR
StatusPublished
Cited by10 cases

This text of 989 S.W.2d 456 (Robinson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robinson v. State, 989 S.W.2d 456, 1999 Tex. App. LEXIS 2658, 1999 WL 274128 (Tex. Ct. App. 1999).

Opinions

OPINION

MIRABAL, J.

A jury found appellant, Timothy Robinson, guilty of sexual assault. The trial court assessed punishment at 45 years confinement. We affirm.

At trial, complainant testified that on August 20,1996, she was working the graveyard shift at a convenience store. She stated that appellant entered the store at approximately 2:30 a.m. and hung around and spoke with her for about an hour. Complainant then said she had to get back to work and thought that appellant left the store. However, when she went to the back room to get a mop bucket, appellant followed her into the room and startled her. Complainant jumped back when appellant took a step toward her. Appellant told complainant that he did not want to scare her. She tried to get to the door, but appellant reached out and touched her on the wrist. Complainant screamed when appellant shut the door. Appellant told complainant, “Don’t make me hurt you,” and made her walk to another room at the back of the store.

Complainant further testified that she was afraid and believed appellant would hurt her if she did not do what he said. She stated that she was thinking about her cousin who had been assaulted, robbed, and beaten to death with a Coke bottle. She testified that she just wanted to live — she did not want to die. Complainant testified that appellant was bigger than she was and she believed he was capable of harming her.

Complainant further testified that appellant ordered her to take off her pants. She unbuttoned the top button of her pants but did not remove her pants. Instead, she began to try to persuade appellant to leave her alone. She told appellant that there might be a surveillance camera in the room like the one in the front of the store, and that customers might be in the store. Complainant [458]*458testified that she also told the appellant “no,” but that he took off her pants. Complainant stated that she then voluntarily sat down on the floor because she did not want to get hurt by being shoved down. Appellant climbed on top of complainant and, without her consent, had sexual intercourse with her.

Complainant testified that appellant let her get up from the floor and then he asked her if she was okay. Complainant told appellant that she was all right so he would not hurt her further. Appellant asked complainant if she intended to call the police. Complainant told appellant she would not call the police so that he would allow her to return to the front of the store. A customer was waiting at the counter when complainant and appellant returned to the front of the store. While appellant stood beside her, complainant handled the transaction, and the customer left the store. Complainant testified that she did not mention the assault to the customer because appellant was nearby and she was afraid that if she said anything appellant would harm her or the customer.

Complainant further testified that after the customer left the store, appellant asked her again if she was okay. He told her that he was not a rapist and asked her again if she intended to call the police. Complainant told him that she would not call the police and she just needed to get back to work. Appellant shook complainant’s hand a couple of times, hugged her, kissed her on the cheek, and then left the store. After appellant left the store and drove away, complainant immediately locked the doors and called the police.

In points of error one and two, appellant asserts the trial court erred in overruling his motion to excuse venire members Shatto and Parsons. Appellant argues Shatto and Parsons should have been excused for cause because they were unable to disregard appellant’s failure to testify.

In reviewing challenges for cause, an appellate court may not disturb the decision of the trial court absent a showing of an abuse of discretion. Satterwhite v. State, 858 S.W.2d 412, 415 (Tex.Crim.App.1993); Hyde v. State, 970 S.W.2d 81, 88 (Tex.App. — Austin 1998, pet. ref'd). An appellate court reviews a cold record while the trial court had the opportunity to view the panelist’s demeanor and determine her credibility. Satterwhite, 858 S.W.2d at 415. For this reason, an appellate court must examine the record as a whole to determine whether there is support for the trial court’s decision, and the trial court’s ruling must be afforded great deference. Id.

If a venire member equivocates on her ability to follow the law, the reviewing court must defer to the trial court’s judgment. Brown v. State, 913 S.W.2d 577, 580-81 (Tex.Crim.App.1996); Hyde, 970 S.W.2d at 88. However, nothing is left to the trial court’s discretion when the venireperson is unequivocal as to their ability to follow the law. Brown, 913 S.W.2d at 580.

The entire voir dire colloquy with venire members Shatto and Parsons about a defendant testifying follows:

Appellant’s Counsel: Anybody else on that second row — getting back to the defendant not testifying and the defendant not presenting any evidence whatsoever and just saying, “Well, I understand the water level, the evidence level, the water level has not been brought up high enough — does anybody think that would be a bad situation for you as a juror? Anybody else on the second row? Third row? Mr. Shatto, no evidence whatsoever by the defense. Are you—
Mr. Shatto: I would have a real problem with it, with the defendant not getting up and saying he’s innocent.
Appellant’s Counsel: And, of course, do you think that you would hold that against him?
Mr. Shatto: If I was sitting in that chair and I was innocent and I didn’t want to get up there and tell the Court and jury I was innocent — I would.
Appellant’s Counsel: I know a lot of people — that’s a lot of people’s views on these cases. Are you uncomfortable with that situation? In other words, as a juror, you think you might tend to hold that against him?
Mr. Shatto: Possibly.
[459]*459Appellant’s Counsel: Mr. Bessey? Am I saying that right?
Mr. Bessey: Yes.
Appellant’s Counsel: How do you feel about what Mr. Shatto said, about the defendant not testifying?
Mr. Bessey: Well, if he doesn’t testify, that’s his right in the court of law not to. It doesn’t matter to me whether he testifies or not. It depends what’s presented in front of me. I hold no opinion, really, on it.
Appellant’s Counsel: Same situation with no evidence?
Mr. Bessey: Yeah. You have to present evidence to form an opinion, right?
Appellant’s Counsel: Okay. Thank you, sir. Mrs. Parsons, do you have a strong feeling about an accused not testifying?
Mrs. Parsons: No, sir. I feel the same as Mr. Shatto does, you know, wanting to hear him admit, you know, he didn’t commit the crime.
Appellant’s Counsel: Take the position, in other words?
Mrs. Parsons: Uh-huh.

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Robinson v. State
989 S.W.2d 456 (Court of Appeals of Texas, 1999)

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Bluebook (online)
989 S.W.2d 456, 1999 Tex. App. LEXIS 2658, 1999 WL 274128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-state-texapp-1999.