Appeal from the 184th District Court Harris County, Texas
Trial Court Cause No. 1534637
consists of Justices Christopher, Spain, and Poissant.
appeal from a conviction for robbery, appellant raises three
issues concerning (1) the trial court's denial of his
motion for mistrial, (2) the trial court's comments
regarding his punishment, and (3) the trial court's
admission of certain opinion testimony. For reasons explained
more fully below, we overrule all of these issues and affirm
the trial court's judgment.
complainant in this case was robbed in a coordinated attack
as she was driving down a residential street. The attack
began around midnight when a car passed the complainant and
came to a stop directly in front of her. A second vehicle
then pulled up from the rear, boxing the complainant in. A
man quickly exited the driver's door of the front car,
walked towards the complainant, and swung open her door. The
man then pressed a gun to the complainant's face and
demanded that she give him her purse and her cellphone. After
the complainant complied with these demands, the man
departed, along with the other vehicle, leaving the
complainant physically unharmed.
complainant raced to a neighbor's house, where she called
police. A sheriff's deputy came to her door at roughly
12:30 that morning and questioned her about what was taken
and who was responsible. In her description of the robber,
the complainant said that the man was short and Hispanic. She
also said that she noticed tattoos on his face, even though a
part of his face had been concealed with a bandana.
around 3:30 that same morning, after having previously spoken
with the complainant, the deputy was dispatched to a motor
vehicle accident in the vicinity of the robbery. Appellant
was one of the drivers involved in that accident, and because
he matched the physical description of the complainant's
robber, the deputy came to suspect that appellant had been
involved in that earlier offense. The deputy patted down
appellant and found a cellphone in his pocket that matched
the cellphone that had been reported stolen by the
complainant. The deputy then searched appellant's vehicle
and found a social security card bearing the
complainant's name. The deputy did not find a purse, a
bandana, or a gun in appellant's vehicle, but he did find
a knife that was designed to resemble a gun.
deputy returned to the complainant's home later that
morning with the items he found from the motor vehicle
accident. The complainant identified the cellphone and social
security card as her own. She said that the knife had not
been used in her robbery, but she said that it resembled the
gun that had been used.
was charged with aggravated robbery with a deadly weapon. At
his trial for that offense, the complainant identified
appellant in open court as her robber. The complainant also
insisted that appellant had used an actual gun in the
aggravated robbery, not a knife, but the jury convicted
appellant of just the lesser offense of simple robbery. The
jury then assessed appellant's punishment at twenty-two
the punishment phase of trial, the prosecutor emphasized that
appellant was twenty-four years old, that he was a member of
a notorious street and prison gang, and that he already had
at least one prior robbery conviction. To protect the
citizens of the county, the prosecutor encouraged the jury to
sentence appellant to a lengthy term of imprisonment. The
prosecutor did not suggest any particular term of years, but
he did raise the topic of parole eligibility.
punishment charge already included certain instructions
regarding parole eligibility. Those instructions, which are
specifically prescribed by statute, informed the jury that
some defendants could be released early on parole, but that
these defendants "will not become eligible for parole
until the actual time served plus any good conduct time
earned equals one-fourth of the sentence imposed or fifteen
years, whichever is less." See Tex. Code Crim.
Proc. art. 37.07, § 4(b). The instructions further
provided as follows:
You may consider the existence of the parole law and good
conduct time. However, you are not to consider the extent to
which good conduct time may be awarded to or forfeited by
this particular defendant. You are not to consider the manner
in which the parole law may be applied to this particular
summation of these instructions, the prosecutor made the
When we talk about parole, I don't want to get too hung
up on it, but I want to make sure I explain it so you
understand it a little bit. The Judge did a great job
already. It's the actual time-[the defendant is] not
parole eligible until the actual time served plus any good
time earned equals one fourth. So hypothetical, you come back
today, you say, you know what? Give him the minimum five
years. He is probation- parole, I apologize, parole eligible
at 1.25 years. Not saying he will get it. We don't know.
But he could be back out in the streets in 1.25 years, plus
any good time he has accrued. Does that scare you? It should.
It scares me.
counsel objected as follows: "I object to this argument,
Judge. The law says you're not supposed to make an
argument like this. The jury is not supposed to look at it
this way, not the way they're supposed to do it."
The trial court overruled the objection, but sua
sponte advised the jury: "You may consider parole,
but do not try to factor in the eligibility of this person.
He could receive it, he could be denied parole. It's