James Stephen Jones v. State

Opinion issued July 21, 2005.

In The

Court of Appeals

For The

First District of Texas

NOS. 01-04-00184-CR

01-04-00191-CR

JAMES STEPHEN JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Washington County, Texas

Trial Court Cause No. 13,962 (Counts 1 and 2)

MEMORANDUM OPINION

A jury found appellant, James Stephen Jones, guilty of robbery, and the trial

court sentenced him to 10 years’ confinement. Appellant also pled guilty to evading

arrest with a vehicle, and the trial court sentenced him to two years’ confinement. In

two issues, appellant asserts that the trial court erred in denying (1) his motion for

mistrial based on jury taint and (2) his motion for directed verdict. We affirm the

judgment of the trial court.

Background

Complainant, Emily Kopycinski, lives in Chappell Hill, Texas, which is located

in Washington County. One day, Kopycinski was traveling home from her meat

market, located near the intersection of Highways 1155 and 290 in Washington

County, when she noticed appellant and Terell Tolbert standing next to a gray car

with the car’s hood raised. Kopycinski testified that the men “appeared to be in

distress” and beckoned her to stop. Kopycinski pulled over, stopped in front of the

men, walked to the back of her car, and asked the men whether they needed help. The

men responded that they needed jumper cables. Kopycinski called her husband from

her mobile phone and asked him to come and assist the two men. After calling her

husband, Kopycinski returned to her car to wait for her husband.

Tolbert approached her, pulled her out of her car, and pushed her onto the

ground. Tolbert got in Kopycinski’s car and sped away. Appellant closed the hood

of the gray car and followed behind Tolbert at a high rate of speed. While she was

stranded on the side of the road, Kopycinski flagged down a car driven by Paul

Derkowski.

Derkowski followed the gray car until a Washington County sheriff’s

deputy was located. After receiving a dispatch call, Deputy Eddie Ocanas began to

pursue the gray car and eventually arrested appellant.

At trial, the venire panel was questioned about the robbery and evading arrest

offenses. Following voir dire, during a recess, a potential juror, Mary P. Thompson,

embraced Kopycinski as she stepped off the elevator. This encounter was witnessed

by several other potential jurors. Outside the presence of the other venire members,

t he trial court questioned Thompson about the encounter. Thompson advised the trial

court that her relationship with Kopycinski would not affect any decision she might

make in the case. At the request of appellant’s trial counsel, the trial court, in open

court, also questioned the entire venire panel about the encounter. The venire

members advised the trial court that this encounter would not affect their ability to be

impartial jurors and make a decision based on the evidence presented at trial.

Following these questions, appellant moved for a mistrial. The trial court denied his

request.

Mistrial

In his first point of error, appellant argues that the trial court erred in denying

his motion for mistrial based on jury taint. In support of his motion for mistrial,

appellant’s trial counsel argued that “the curative measures that the Court used [were]

not enough to remove the taint and prejudice that [had] been established with the

jury.”

The standard of review for a trial court’s denial of a motion for mistrial is abuse

of discretion. Ladd v. State , 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial

is a device used to halt trial proceedings when error is so prejudicial that expenditure

of further time and expense would be wasteful and futile. Id. The determination of

whether a given error necessitates a mistrial must be made by examining the

particular facts of a case. Hernandez v. State , 805 S.W.2d 409, 414 (Tex. Crim. App.

1990). The asking of an improper question will seldom call for a mistrial, because,

in most cases, any harm can be cured by an instruction to disregard. Id. at 413 . A

trial judge’s discretion to declare a mistrial based on manifest necessity is limited to

“very extraordinary and striking circumstances.” Brown v. State , 907 S.W.2d 835,

839 (Tex. Crim. App. 1995). As a general rule, manifest necessity exists where the

circumstances render it impossible to reach a fair verdict, where it is impossible to

proceed with trial, or where the verdict would be automatically reversed on appeal

because of trial error. Id.

In all criminal prosecutions, a defendant has the right to a fair and impartial

jury. U.S. Const. amend . VI; Tex. Const. art . I § 10. Bias exists as a matter of law

when a prospective juror admits he is biased for or against a defendant. Anderson v.

State , 633 S.W.2d 851, 854 (Tex. Crim. App. 1982). When bias is not established as

a matter of law, the trial court has discretion to determine whether bias actually exists

to a degree that the juror is disqualified and should be excused from jury service. Id.

at 853-54 . The mere fact that a juror knows, has an intimate or causal acquaintance

with, or has friendly relations with the defendant, or, as here, the complainant, is not

a sufficient basis for disqualification of a juror . See id. at 853 .

Furthermore, with respect to oral questions asked during voir dire, error occurs

where “a prejudiced or biased juror is selected without fault or lack of diligence on

the part of defense counsel, such counsel acting in good faith on the juror’s responses

and having no knowledge of their inaccuracy.” Gonzales v. State , 3 S.W.3d 915, 916-17 (Tex. 1999). Defense counsel must be diligent in eliciting pertinent information

from prospective jurors during voir dire to uncover potential prejudice or bias. Id. at

917 . Defense counsel has an obligation to ask specific questions as well as follow-up

questions to bring out information, which might be said to indicate a juror’s inability

to be impartial, truthful, and the like. See, e.g., Brandon v. State , 599 S.W.2d 567,

578 (Tex. Crim. App. 1979) (holding no error where counsel failed to ask follow-up

questions after potential juror stated that he was acquainted with the complainant).

Unless defense counsel asks such questions, we must hold that, “the purportedly

material information which a juror fails to disclose is not really ‘withheld’ so as to

constitute misconduct which would warrant a reversal.” Gonzalez, 3 S.W.3d at 917

(citing Sneed v. State , 670 S.W.2d 262, 266 (Tex. Crim. App. 1984)).

Here, outside the presence of the other venire members , the trial court

questioned Thompson about the encounter. Thompson stated that she did not realize

Kopycinski was the complainant in the case because she only knew Kopycinski as

“Sissy Thompson.”

Thompson further explained that, when she saw Kopycinski get

off of the elevator, she recognized her because Thompson’s daughter and

Kopycinski’s son had previously dated. Finally, Thompson advised the trial court

that her relationship with Kopycinski would not affect any decision she might make

in the case. Appellant’s trial counsel did not ask any questions .

Appellant’s trial counsel requested that the trial court question the venire panel

to determine “all who saw” Thompson embrace Kopycinski. The trial court then

conducted the following exchange with the venire panel:

Trial court: The question that I have of you, is there anyone who

witnessed any exchange between Ms. Emily

Kopycinski and any prospective juror on this jury

panel? Did anyone witness any exchange between

those two people, either speaking to each other–yes,

ma’am. Please stand and if you don’t mind, please

identify yourself by your name.

Beckworth: My name is Cynthia Beckworth and I saw them

embrace and speak to one another.

Trial court: Is there anyone other than Ms. Beckworth that

witnessed this exchange? Yes, sir. Please stand and

state your name.

Latimer: My name is Dudley Latimer. I saw the same thing.

Trial court: All right.

Latimer: Saw them embrace --

Trial court: Thank you.

Latimer: – and speak to one another.

Trial court: Is there anyone other than Ms. Beckworth and Mr.

Latimer who witnessed this exchange? Yes, ma’am.

Please stand and state your name.

Perez: I’m Monica Perez and I witnessed the same

encounter.

Trial court: All right. Thank you, Ms. Perez. Is there anyone

else? All right. My question to you, Ms. Beckworth,

Mr. Latimer, and Ms. Perez, is there anything about

that would in any way affect your ability to sit on

this jury and make a decision based only on the

evidence that you hear in this courtroom and the law

that is given to you by the Court?

Beckworth, Latimer

and Perez: No.

Trial court: Would any of the three of you be influenced by what

you saw, the exchange between these two

individuals? Is there– each of you, let the record

reflect, have indicated by shaking your head no. Is

that your answer to that last question?

Beckworth, Latimer

and Perez: Yes.

Trial court: As to the remainder of you, having heard these

questions asked by the Court of these three

individuals, is there anyone on the jury panel that

would be influenced by having heard these questions

being propounded to these three individuals? Is

there anyone that would be influenced in rendering

a verdict, having heard these questions asked?

Can all of you make a decision based only on the

evidence that you hear in this courtroom and the law

that is given to you by the Court and not be

influenced by any of these matters that have just

been related to you? Can you do that? Is there anyone who cannot do that?

All right. Thank you. I’m going to ask the lawyers

to retire to strike their lists.

Although Beckworth, Latimer, and Perez witnessed Thompson embrace

Kopycinski , they advised the trial court that this encounter would not affect their

ability to be impartial jurors and make a decision based on the evidence presented at

trial. Following this exchange, appellant’s counsel did not question any of these three

jurors, the remaining venire members, or Thompson to verify whether they would be

able to be fair and impartial jurors. Accordingly, b ecause appellant’s counsel did not

follow-up with specific questions to uncover any potential bias or prejudice with

regard to the venire members, we hold that the trial court did not abuse its discretion

in denying appellant’s motion for mistri al . See Brandon , 599 S.W.2d at 578 . The

mere fact that Thompson was acquainted with Kopycinsk is not a sufficient basis for

disqualification . See Anderson, 633 S.W.2d at 853 .

We overrule appellant’s first point of error.

Motion for Directed Verdict

In his second point of error, appellant contends that the trial court erred in

denying his motion for directed verdict. Appellant’s motion for directed verdict was

based on three grounds — (1) venue, (2) lack of bodily injury, and (3) the law of

parties.

A motion for directed verdict is an attack on the legal sufficiency of the

evidence. Madden v. State , 799 S.W.2d 683, 686 (Tex. Crim. App. 1990);

Rohrscheib v. State , 934 S.W.2d 909, 910 (Tex. App.—Houston [1st Dist.] 1996, no

pet.). When conducting a legal-sufficiency review, we view the evidence in the light

most favorable to the verdict to determine whether any rational fact finder could have

found the essential elements of the offense beyond a reasonable doubt. King v. State ,

29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Rohrscheib , 934 S.W.2d at 910 .

Although a legal-sufficiency analysis entails a consideration of all evidence presented

at trial, we may neither re-weigh the evidence nor substitute our judgment for the

jury’s. King , 29 S.W.3d at 562 . The jury, as trier of fact, is the sole judge of the

credibility of witnesses and may believe or disbelieve all or any part of a witness’s

testimony. Reece v. State , 878 S.W.2d 320, 325 (Tex. App.—Houston [1st Dist.]

1994, no pet.).

Venue

Appellant moved for a directed verdict because the State failed to prove that

the alleged robbery occurred in Washington County.

We presume that venue was proved at trial unless it was disputed in the trial

court or the record affirmatively shows otherwise. Tex. R. App. P. 44.2(c)(1); see

also Clark v. State, 558 S.W.2d 887, 891 (Tex. Crim. App. 1977). Here, appellant

moved for a directed verdict because the State did not present any “direct evidence”

that the alleged robbery occurred in Washington County. Appellant, however, did not

present any contradictory evidence regarding venue; and venue was not an issue that

was disputed in the trial court. In criminal cases, venue need only be proven by a

preponderance of the evidence. See Black v. State , 645 S.W.2d 789, 790 (Tex. Crim.

App. 1983). Venue can be established by either direct or circumstantial evidence.

Id. If venue is not specifically stated, the proper county for the prosecution of

offenses is that in which the offense was committed. Tex. Code Crim. Proc. Ann .

art . 13.18 (Vernon 2005) .

In this case, the indictment alleged that the offense occurred in Washington

County. Moreover, Kopycinski testified that she was traveling from her meat market

in Washington County to her home in Washington County when she saw appellant

and Terell Tolbert standing on the side of the road. Specifically, Kopycinski

explained that she saw the two men approximately “a half mile, [or] quarter mile”

from downtown Chappell Hill. Furthermore, Derkowski testified that he was

traveling southbound on Highway 1155, when he noticed Kopycinski stranded on the

side of the road, approximately “a quarter of half mile” away from his home, which

is also located in Chappell Hill in Washington County.

We hold that a rational fact finder could have found that this evidence was

sufficient to prove that Washington County is the proper county of venue and that the

trial court did not err in denying appellant’s motion for directed verdict on the venue

challenge. See Black, 645 S.W.2d at 790 .

Bodily Injury

Next, appellant argues that a directed verdict was proper because the State

failed to prove that Kopycinski suffered bodily injury. Specifically, appellant argues

that, because Kopycinski did not testify that she felt “pain” as a result of the injuries

she sustained when Tolbert pushed her to the ground, the State has not satisfied the

bodily injury requirement for robbery.

A robbery conviction requires that the State prove that appellant, in the course

of committing theft and with intent to obtain or maintain control of the property, (1)

intentionally, knowingly, or recklessly caused bodily injury to another or (2)

intentionally or knowingly threatened or placed another in fear of imminent bodily

injury or death. See Tex. Pen. Code Ann. § 29.02(a)(1)-(2) (Vernon 2003). The

term “bodily injury” is defined as, “physical pain, illness, or any impairment of

physical condition.” Tex. Pen. Code. Ann. § 1.07(8) (Vernon 2003 & Supp. 2004-2005). The Court of Criminal Appeals has held that the definition of bodily injury

included in the robbery statute, “appears to be purposefully broad and seems to

encompass even relatively minor physical contacts, so long as they constitute more

than mere offensive touching.” Lane v. State , 763 S.W.2d 785, 786 (Tex. Crim. App.

1989). Accordingly, “so long as violence is clearly perpetrated against another for

the purpose of . . . preventing or overcoming resistance to theft,” the bodily injury

requirement is satisfied. Id. at 787 .

Here, Kopycinski testified that Tolbert pulled her out of her car and pushed her

to the ground. She also testified that, as a result of Tolbert’s pushing her to the

ground, her “knees were bruised, her elbow and ankle were cut, and [she] was sore

all over.” Accordingly, we hold that a rational fact finder could have found the

evidence sufficient to establish the element of bodily injury, and we hold that the trial

court did not err in denying appellant’s motion for directed verdict on the bodily

injury challenge. See id.

Law of Parties

Finally, appellant argues that a directed verdict was proper because the State

did not prove that he was criminally responsible for robbery under the law of parties. The law of parties provides that a person is criminally responsible for an

offense committed by the conduct of another if, acting with the intent to promote or

assist the commission of the offense, he solicits, encourages, directs, aids, or attempts

to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(2)

(Vernon 2003).

In this case, the jury charge authorized the jury to convict appellant of robbery

if it found beyond a reasonable doubt that either (1) appellant, acting alone, while in

the course of committing theft, did intentionally, knowingly or recklessly cause

bodily injury to Kopycinski or (2) appellant, acting with intent to promote or assist

the commission of the offense, aided or attempted to aid Tolbert to commit the

offense.

At trial, Kopycinski testified that appellant was present when Tolbert pulled

her out of her car, pushed her to the ground, and stole her car. She testified that, after

Tolbert stole her car, appellant followed Tolbert in the stalled car. Additionally,

Deputy Ocanas testified that, after he arrested appellant, Kopycinski positively

identified him as one of the men who had taken her car minutes earlier.

Viewing the evidence in the light most favorable to the jury’s verdict, a rational

trier of fact could have found beyond a reasonable doubt that appellant assisted,

solicited, encouraged, directed, aided, or attempted to aid Tolbert in stealing

Kopycinski’s car. See, e.g., Johnson v. State, 6 S.W.3d 709, 711 (Tex. App.—

Houston [1st Dist.] 1999, pet. ref’d) (finding sufficient evidence of intent to assist

aggravated robbery when Johnson, who did not enter store, drove car seen leaving

store after robbery , attempted to outrun police, and was later apprehended with the

two men identified as robbers). Accordingly, we hold that any rational trier of fact

could have found beyond a reasonable doubt that appellant was guilty of robbery and

that the trial court did not abuse its discretion in denying appellant’s motion for a

directed verdict.

We overrule appellant’s second point of error.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Hanks.

Do not publish. Tex. R. App. P. 47.4.