IN THE TENTH COURT OF APPEALS
No. 10-07-00112-CR
STEVEN BLAKE BLASINGAME, Appellant v.
THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas Trial Court No. 2006-856-C2
MEMORANDUM OPINION
Appellant, Steven Blake Blasingame, was convicted by a jury of the offense of
robbery and assessed forty years in prison. His appeal asserts three issues for review:
1. Whether the trial court erred in admitting a written statement of a State’s witness, when the prosecutor knew before trial that the witness would have to be impeached;
2. Whether the trial court erred in denying his motion for a mistrial after jurors expressed concern about being photographed in the courtroom by Appellant’s girlfriend; and
3. Whether the evidence is factually sufficient to support a finding that he was in the course of committing theft. ESSENTIAL FACTS
The indictment alleges that Appellant did “while in the course of committing theft
of property, and with intent to obtain and maintain control of said property, intentionally,
knowingly, or recklessly cause bodily injury to Bobby Slovak by striking him with
defendant’s fist.”
The evidence shows that Appellant visited a Skinny’s convenience store in Waco
twice on March 31, 2006. On the first visit, he bought a cigar and then left. On the second
visit, he inquired about purchasing gas in a glass container and was told that it is illegal.
According to Slovak, a store employee, Appellant put an empty gas can in his pants and
attempted to leave the store. Appellant shoved the employee and hit him twice in the face.
As they scuffled, Appellant lost a ring and the gas can fell from his pants. He recovered
his ring and left the store.
Another person who was in the store testified that he saw the scuffle, saw the can
under Appellant’s clothing, but did not see him leave the store with it.
Police found Appellant at another convenience store and took him to Skinny’s for
identification. Although he gave a fictitious name, he was identified by his cousin and
Slovak.
At the punishment phase, the jury heard evidence of prior convictions for
attempted burglary of a habitation and misdemeanor possession of marihuana, along with
other evidence of unadjudicated acts. Appellant’s former girlfriend testified that he had
assaulted her but she could not remember much of what had happened. The State offered
her written statement into evidence, and it was admitted over objection. Appellant
Blasingame v. State Page 2 introduced evidence at the hearing concerning his childhood, his background, and his
need for medication due to ADHD.
WITNESS STATEMENT
The prior incident admitted at the punishment phase involved Amy Ramos, who
said she was living with Appellant in January of 2006, when the police were called to their
apartment. She denied having any memory of the incident, and the State questioned her
about a written statement she had given. She denied knowing what was in the statement
and telling the officer that Appellant had assaulted her. She also denied telling a family
violence officer a few days later that she was afraid of Appellant. The State offered the
written statement, which was admitted into evidence and read to the jury over Appellant’s
objection.
Appellant acknowledges that the statement is a prior inconsistent statement of a
witness under Rule of Evidence 613(a) and that Rule 607 allows a party to impeach its own
witness, but says the state should not be permitted to call a witness that it knows will give
unfavorable testimony solely for the purpose of impeaching that witness with a prior
inconsistent statement. He cites Hughes v. State as authority that an analysis under Rule
403 is the proper way to determine the admissibility of such evidence. Hughes v. State, 4
S.W.3d 1, 5 (Tex. Crim. App. 1999). In Hughes, the Court of Criminal Appeals noted that
Rule 607 does not contain an exception for instances when the State knows, or should
know, that its witness will testify unfavorably. Id. at 4-5. The court summarized:
Instead, we conclude the State's knowledge that its own witness will testify unfavorably is a factor the trial court must consider when determining whether the evidence is admissible under Rule 403. Analyzing lack of surprise or injury in terms of Rule 403 is preferable not only because it comports with the plain language Blasingame v. State Page 3 of Rule 607, but because it will lead to the conclusion that a trial court abuses its discretion under Rule 403 when it allows the State to admit impeachment evidence for the primary purpose of placing evidence before the jury that was otherwise inadmissible. The impeachment evidence must be excluded under Rule 403's balancing test because the State profits from the witness' testimony only if the jury misuses the evidence by considering it for its truth. Consequently, any probative value the impeachment testimony may have is substantially outweighed by its prejudicial effect.
Id. at 5.
The State says that the complaint on appeal is not the same complaint that
Appellant made to the trial court and thus this complaint has been waived. We agree.
At trial, counsel made several objections, but we find none that can fairly be said to
implicate Rule 403. To preserve a complaint for appellate review, the complaining party
must make a timely, specific objection and obtain a ruling on the objection. Broxton v.
State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). In addition, the point of error must
correspond to the objection made at trial. Id. An objection stating one legal theory may
not be used to support a different legal theory on appeal. Id. Because we find that
Appellant’s complaint on appeal does not correspond to his objections at trial, we overrule
his first issue.
MOTON FOR MISTRIAL
During the punishment phase, the jury sent a note to the court expressing
discomfort with the apparent use in the courtroom of a cell phone by Amy Shilling to take
photographs or record audio. Appellant moved for a mistrial on grounds that Shilling’s
acts had prejudiced him in the eyes of the jury. The trial court noted that Shilling had been
specifically excused from the rule keeping witnesses out of the courtroom and denied the
motion. Blasingame v. State Page 4 Appellant says Shilling’s conduct created an inherent prejudice because jurors
thought enough about it to bring it to the court’s attention. He says there is a reasonable
probability that her conduct interfered with the jury’s verdict. See Landry v. State, 706
S.W.2d 105, 112 (Tex. Crim. App. 1985) (“Conduct from bystanders which interferes with
the normal proceedings of a trial will not result in reversible error unless the defendant
shows a reasonable probability that the conduct interfered with the jury's verdict.”),
overruled in part on other grounds by Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996).
The State notes that counsel made no request for a hearing and the court heard no
evidence on the motion.
In such an instance, injury to the defendant is measured on a case-by-case basis. Id.
Furthermore, the decision about whether to grant a mistrial lies within the discretion of
the trial judge. Pierce v.
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IN THE TENTH COURT OF APPEALS
No. 10-07-00112-CR
STEVEN BLAKE BLASINGAME, Appellant v.
THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas Trial Court No. 2006-856-C2
MEMORANDUM OPINION
Appellant, Steven Blake Blasingame, was convicted by a jury of the offense of
robbery and assessed forty years in prison. His appeal asserts three issues for review:
1. Whether the trial court erred in admitting a written statement of a State’s witness, when the prosecutor knew before trial that the witness would have to be impeached;
2. Whether the trial court erred in denying his motion for a mistrial after jurors expressed concern about being photographed in the courtroom by Appellant’s girlfriend; and
3. Whether the evidence is factually sufficient to support a finding that he was in the course of committing theft. ESSENTIAL FACTS
The indictment alleges that Appellant did “while in the course of committing theft
of property, and with intent to obtain and maintain control of said property, intentionally,
knowingly, or recklessly cause bodily injury to Bobby Slovak by striking him with
defendant’s fist.”
The evidence shows that Appellant visited a Skinny’s convenience store in Waco
twice on March 31, 2006. On the first visit, he bought a cigar and then left. On the second
visit, he inquired about purchasing gas in a glass container and was told that it is illegal.
According to Slovak, a store employee, Appellant put an empty gas can in his pants and
attempted to leave the store. Appellant shoved the employee and hit him twice in the face.
As they scuffled, Appellant lost a ring and the gas can fell from his pants. He recovered
his ring and left the store.
Another person who was in the store testified that he saw the scuffle, saw the can
under Appellant’s clothing, but did not see him leave the store with it.
Police found Appellant at another convenience store and took him to Skinny’s for
identification. Although he gave a fictitious name, he was identified by his cousin and
Slovak.
At the punishment phase, the jury heard evidence of prior convictions for
attempted burglary of a habitation and misdemeanor possession of marihuana, along with
other evidence of unadjudicated acts. Appellant’s former girlfriend testified that he had
assaulted her but she could not remember much of what had happened. The State offered
her written statement into evidence, and it was admitted over objection. Appellant
Blasingame v. State Page 2 introduced evidence at the hearing concerning his childhood, his background, and his
need for medication due to ADHD.
WITNESS STATEMENT
The prior incident admitted at the punishment phase involved Amy Ramos, who
said she was living with Appellant in January of 2006, when the police were called to their
apartment. She denied having any memory of the incident, and the State questioned her
about a written statement she had given. She denied knowing what was in the statement
and telling the officer that Appellant had assaulted her. She also denied telling a family
violence officer a few days later that she was afraid of Appellant. The State offered the
written statement, which was admitted into evidence and read to the jury over Appellant’s
objection.
Appellant acknowledges that the statement is a prior inconsistent statement of a
witness under Rule of Evidence 613(a) and that Rule 607 allows a party to impeach its own
witness, but says the state should not be permitted to call a witness that it knows will give
unfavorable testimony solely for the purpose of impeaching that witness with a prior
inconsistent statement. He cites Hughes v. State as authority that an analysis under Rule
403 is the proper way to determine the admissibility of such evidence. Hughes v. State, 4
S.W.3d 1, 5 (Tex. Crim. App. 1999). In Hughes, the Court of Criminal Appeals noted that
Rule 607 does not contain an exception for instances when the State knows, or should
know, that its witness will testify unfavorably. Id. at 4-5. The court summarized:
Instead, we conclude the State's knowledge that its own witness will testify unfavorably is a factor the trial court must consider when determining whether the evidence is admissible under Rule 403. Analyzing lack of surprise or injury in terms of Rule 403 is preferable not only because it comports with the plain language Blasingame v. State Page 3 of Rule 607, but because it will lead to the conclusion that a trial court abuses its discretion under Rule 403 when it allows the State to admit impeachment evidence for the primary purpose of placing evidence before the jury that was otherwise inadmissible. The impeachment evidence must be excluded under Rule 403's balancing test because the State profits from the witness' testimony only if the jury misuses the evidence by considering it for its truth. Consequently, any probative value the impeachment testimony may have is substantially outweighed by its prejudicial effect.
Id. at 5.
The State says that the complaint on appeal is not the same complaint that
Appellant made to the trial court and thus this complaint has been waived. We agree.
At trial, counsel made several objections, but we find none that can fairly be said to
implicate Rule 403. To preserve a complaint for appellate review, the complaining party
must make a timely, specific objection and obtain a ruling on the objection. Broxton v.
State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). In addition, the point of error must
correspond to the objection made at trial. Id. An objection stating one legal theory may
not be used to support a different legal theory on appeal. Id. Because we find that
Appellant’s complaint on appeal does not correspond to his objections at trial, we overrule
his first issue.
MOTON FOR MISTRIAL
During the punishment phase, the jury sent a note to the court expressing
discomfort with the apparent use in the courtroom of a cell phone by Amy Shilling to take
photographs or record audio. Appellant moved for a mistrial on grounds that Shilling’s
acts had prejudiced him in the eyes of the jury. The trial court noted that Shilling had been
specifically excused from the rule keeping witnesses out of the courtroom and denied the
motion. Blasingame v. State Page 4 Appellant says Shilling’s conduct created an inherent prejudice because jurors
thought enough about it to bring it to the court’s attention. He says there is a reasonable
probability that her conduct interfered with the jury’s verdict. See Landry v. State, 706
S.W.2d 105, 112 (Tex. Crim. App. 1985) (“Conduct from bystanders which interferes with
the normal proceedings of a trial will not result in reversible error unless the defendant
shows a reasonable probability that the conduct interfered with the jury's verdict.”),
overruled in part on other grounds by Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996).
The State notes that counsel made no request for a hearing and the court heard no
evidence on the motion.
In such an instance, injury to the defendant is measured on a case-by-case basis. Id.
Furthermore, the decision about whether to grant a mistrial lies within the discretion of
the trial judge. Pierce v. State, 234 S.W.3d 265, 268 (Tex. App.—Waco 2007, pet. ref’d).
Based on the record before us, we find that Appellant did not show a reasonable
probability that Shilling’s conduct interfered with the jury’s verdict. See Landry, 706
S.W.3d at 112. The court did not abuse its discretion in denying his motion for a mistrial.
See Pierce, 234 S.W.3d at 268. We overrule the second issue.
SUFFICIENCY OF THE EVIDENCE
The standard of review for a factual sufficiency claim was revisited by the Court of
Criminal Appeals in Watson v. State, 204 S.W.3d. 404, 414-17 (Tex. Crim. App. 2006).
We, as the reviewing court, ask whether a neutral review of all the evidence, though
legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting
Blasingame v. State Page 5 evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust.
Id. at 414-15; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The court reviews the
evidence weighed by the jury that tends to prove the existence of the elemental fact in
dispute and compares it with the evidence that tends to disprove that fact. Johnson, 23
S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The
appellate court “does not indulge in inferences or confine its view to evidence favoring
one side of the case. Rather, it looks at all the evidence on both sides and then makes a
predominantly intuitive judgment. . . .” Id. (quoting William Powers and Jack Ratliff,
Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEXAS L. REV. 515, 519 (1991)).
The nature of a factual sufficiency review authorizes an appellate court, although to
a very limited degree, to act as the so-called “thirteenth juror” to review the fact finder’s
weighing of the evidence and disagree with the fact finder’s determination. Watson, 204
S.W.3d at 417 (citing Tibbs v. Florida, 457 U.S. 31, 42-3, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652
(1982), and Meraz v. State, 785 S.W.2d 146, 156 (Tex. Crim. App. 1990)). If an appellate
court concludes that the evidence is factually insufficient, however, it must clearly state
why it has reached that conclusion. Johnson, 23 S.W.3d at 7 (citing Pool v. Ford Motor Co.,
715 S.W.2d 629, 635 (Tex. 1986)).
In his final issue, Appellant argues that the evidence shows that he discarded the
gas can before the scuffle and therefore he was not in the course of committing theft. He
also says that it is equally likely that he was taking the gas can to fill it with gas to
purchase both, and that his conduct is consistent with a lack of intent to commit a crime,
noting that he came back to look for his ring instead of running away.
Blasingame v. State Page 6 The State points to evidence that the gas can fell out of Appellant’s pants only after
the store employee requested that he take it out and after the scuffle began. Videotape of
the incident was played for the jury. The State urges that a high degree of skepticism is
required to overturn a jury verdict and that Appellant has not demonstrated that the
verdict is clearly wrong and manifestly unjust. See Watson, 204 S.W.3d at 414, 417.
The question before us is whether the evidence, viewed in a neutral light, is so weak
that the finding that Appellant was in the course of committing theft is clearly wrong and
manifestly unjust. See id. at 414. We defer to the jury’s resolution of this issue. We
conclude that the evidence is not so weak as to undermine our confidence in the verdict;
thus we cannot say that it is clearly wrong and manifestly unjust. 1 We overrule the third
issue.
CONCLUSION
Having overruled Appellant’s three issues in this appeal, we affirm the judgment of
the trial court.
BILL VANCE Justice
Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed November 12, 2008 Do not publish [CRPM]
1We found in Hawkins v. State, 214 S.W.3d 668, 670 (Tex. App.—Waco 2007, no pet.), that asportation—the act of carrying away or removing property—is not a statutory element of theft. Thus, the offense can be complete without actual removal of the property from the owner’s premises.
Blasingame v. State Page 7