                                  NO. 07-10-00420-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                 SEPTEMBER 13, 2011


                      MITCHEL WAYNE STEWART, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


      FROM THE CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY;

               NO. 1201559R; HONORABLE ELIZABETH BERRY, JUDGE


Before HANCOCK. and PIRTLE, JJ. and BOYD, S.J.1



                                        OPINION

      Appellant, Mitchel Wayne Stewart, appeals his conviction for burglary of a

habitation2 with an affirmative finding by the jury of the use of a deadly weapon during

the commission of the burglary.3       The jury assessed appellant’s punishment at

confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-

      1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
      2
          See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011).
      3
          See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2010).
TDCJ) for 60 years. Appellant appeals the judgment of the trial court contending that

the trial court committed reversible error by submitting the deadly weapon issue to the

jury when there was insufficient evidence to support the submission and by not sua

sponte declaring a mistrial when certain allegedly inflammatory evidence was admitted.

We affirm.


                            Factual and Procedural Background


        On October 26, 2009, JG,4 a 78 year old woman, was alone in the home of her

son in east Fort Worth. JG testified that she had gone to bed at approximately 10:00

p.m., and that her son left for work at about 11:00 p.m. JG was awakened by the

ringing of the front door bell. JG testified that she was not going to answer the door at

that time of night. The next noise JG heard was someone breaking in the front door.

She grabbed a baseball bat that she kept in the bedroom, and approached the living

room of the house. Appellant was already inside the house. During a confrontation

between JG and appellant, appellant took the bat from JG and ordered her to sit in the

living room. Appellant informed JG that he wanted to have sex with her. When JG

refused, appellant began choking her. JG testified that she could not breathe while she

was being choked, and thought appellant was going to kill her. Appellant released his

choke hold on her and raised her shirt and began fondling her breasts.         Appellant

slapped her in the face with an open hand, and pulled his penis out from his pants and

began masturbating. After masturbating, appellant asked for money. JG replied she


        4
            The State filed an affidavit to allow the use of a pseudonym in lieu of JG’s
name.

                                             2
did not have any money in the house. Subsequently, appellant asked JG to prepare

him something to eat. JG convinced appellant to go outside on the porch and wait while

she got him something to eat. JG gave appellant some bread and a can of Vienna

sausage. Appellant then left the residence.


        After appellant left, JG realized that he had taken her cell phone. Having no land

line in the house, JG retrieved a gun that belonged to her son and went to a neighbor’s

house in an attempt to use the phone to call the police. One of her neighbors saw

someone, that turned out to be JG, walking around with a gun and called the police.

When the police arrived, not knowing of the burglary, they disarmed JG.               After

disarming JG, the police learned of the incident and called for more officers and, in

particular, for female detectives from the sex crimes unit. During the investigation of the

burglary, pictures of the injuries to JG were taken. These pictures were later admitted

into evidence during the trial. The pictures reflected the bruises on JG’s arm and her

neck.


        Appellant was subsequently indicted in a multi-count indictment that contained

several paragraphs of different manner and means of committing burglary.              The

indictment against appellant also contained habitual offender allegations, which were

amended by a notice of intent to prove prior convictions filed with the clerk after the

indictment. The State also filed a notice of intent to seek a deadly weapon finding from

the jury, specifically, that appellant’s hands, in the manner of their use or intended use,

were deadly weapons used during the commission of the offense.




                                              3
       On the day of trial, appellant entered a plea of guilty to burglary of a habitation

with intent to commit theft, a plea of true to the prior convictions, and a plea of not true

to the deadly weapon allegation. A jury was impaneled to consider the punishment to

be assessed. At the conclusion of the testimony, appellant’s trial counsel moved for an

instructed verdict on the issue of the deadly weapon, which the trial court overruled.

The Court’s Charge, as submitted to the jury contained an issue inquiring whether

appellant used a deadly weapon, to-wit: his hands, during the commission of the

offense of burglary. Appellant’s trial counsel objected to the special issue contending

there was no evidence to support submitting the issue to the jury. The jury answered in

the affirmative, and sentenced appellant to confinement in the ID-TDCJ for a period of

60 years. This appeal followed.


       In his appeal, appellant brings forth two issues. First, appellant contends that the

trial court erred in giving the special issue inquiring about the deadly weapon over trial

counsel’s objection. Second, appellant contends the trial court erred in failing to declare

a mistrial when one of the detectives gave inflammatory testimony. We disagree with

appellant and will affirm the judgment of the trial court.


       Because of the chronology of the events complained of in appellant’s appeal, we

will first address the issue of the trial court’s failure to sua sponte declare a mistrial.


                                         Mistrial Issue


       Before reviewing the duty of a trial court to sua sponte declare a mistrial, we

must address the issue of preservation of error.          Preservation of error is a systemic

requirement that we must review.            See Haley v. State, 173 S.W.3d 510, 515
                                               4
(Tex.Crim.App. 2005). The issue before this Court concerns the testimony of Detective

Cleveland of the Fort Worth Police Department. Cleveland was the lead detective on

appellant’s burglary case. During her investigation, Cleveland had the opportunity to

question appellant on two occasions.        It was her testimony regarding the second

interview that is the basis of appellant’s second issue regarding a mistrial.


       During direct examination, Cleveland testified that appellant began staring at her

breasts and that subsequently, during that same interview, she became aware that

appellant appeared to be masturbating under his coat that was across his lap. When

asked how she felt at the conclusion of the interview, Cleveland stated, “I wanted to kill

him.” During cross-examination, appellant’s trial counsel questioned Cleveland about

the masturbation episode, and questioned why she did not try to collect any DNA

evidence from appellant’s coat. After cross-examining Cleveland about her failure to

collect DNA, trial counsel stated, “You just wanted to kill him.” To which Cleveland

responded by saying, “Not literally, sir, but I was very upset at the end of that interview.”

Finally, appellant contends that, when Cleveland described going home and standing in

the shower “for 30 minutes because [she] felt disgusting when she left there,” she was

giving additional inflammatory testimony that warranted a mistrial.


       The problem with all of appellant’s contentions regarding this testimony is that

there was never any objection lodged at trial to any of the testimony. In fact, a good

portion of the complained of testimony was elicited by appellant’s trial counsel during

cross-examination.    It is axiomatic that, in order to preserve a point for appeal, an




                                             5
objection, motion, or some other mechanism must be used to draw the trial court’s

attention to the alleged error. See TEX. R. APP. P. 33.1(a)(1). Appellant failed to do this.


       Appellant contends that we should treat this issue as some sort of “fundamental

error” that does not require an objection to preserve the issue for appeal. The matter of

preservation has been thoroughly discussed by the Texas Court of Criminal Appeals,

and Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App. 2004), controls our

disposition of this matter. Mendez concerned the issue of whether a trial court had a

duty to change a defendant’s plea of guilty to not guilty on its own motion. Id. at 336.

During a plea of guilty before a jury, the defendant testified that he did not mean to

shoot and kill the victim. Id. at 336-37. In his appeal, he claimed that the trial court,

upon hearing his testimony, should have sua sponte withdrawn his plea of guilty. Id.

The court held that, “[e]xcept for complaints involving systemic (or absolute)

requirements, or rights that are waivable only, which are not involved here, all other

complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to

comply with Rule 33.1(a).” Id. at 342. We have found no cases that would construe the

type of testimony complained of as violative of systemic requirements, or rights that are

waivable only.   Id.   Neither has appellant cited to any case so holding, therefore,

appellant must have objected or the issue has been forfeited. Id. Accordingly, we hold

that there is nothing preserved for appeal and appellant’s issue is overruled.


                                       Special Issue


       Appellant next complains that the trial court erred in submitting the special issue

that inquired about the use of a deadly weapon during the commission of the burglary.

                                             6
Appellant’s complaint, when placed in proper perspective, attacks the sufficiency of the

evidence to support the jury’s answer to the special issue. See Yandell v. State, 46

S.W.3d 357, 363 n.2 (Tex.App.—Austin 2001, pet. ref’d).             Our interpretation of

appellant’s issue is confirmed when the authority cited in appellant’s brief is reviewed.


Standard of Review


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133

S.W.3d 618, 620 (Tex.Crim.App. 2004). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks v. State, 323 S.W.3d 893, 917 (Tex.Crim.App. 2010) (Cochran, J.,

concurring). We remain mindful that “[t]here is no higher burden of proof in any trial,

criminal or civil, and there is no higher standard of appellate review than the standard

mandated by Jackson.” Id. When reviewing all of the evidence under the Jackson

standard of review, the ultimate question is whether the jury’s finding was a rational

finding. See id. at 906, 907 n.26 (discussing Judge Cochran’s dissent in Watson v.

State, 204 S.W.3d 404, 448–50 (Tex.Crim.App. 2006), as outlining the proper

application of a single evidentiary standard of review).5       “[T]he reviewing court is


       5
         We note that this Court has at times quoted Moreno v. State, 755 S.W.2d 866,
867 (Tex.Crim.App. 1988), for the proposition that we had to uphold the verdict of the
jury unless it was irrational or unsupported by more than a mere modicum of evidence.
                                             7
required to defer to the jury’s credibility and weight determinations because the jury is

the sole judge of the witnesses’ credibility and the weight to be given their testimony.”

Id. at 899.


Deadly Weapon


        The jury issue inquired:


        Do you find beyond a reasonable doubt that the [appellant], Mitchel
        Wayne Stewart, used or exhibited a deadly weapon, to-wit: [appellant’s]
        hand, that in the manner of its use or intended use was capable of causing
        death or serious bodily injury, during the commission of the offense of
        Burglary of a Habitation with intent to Commit Theft, as alleged in the
        indictment.

A deadly weapon is “anything that in the manner of its use or intended use is capable of

causing death or serious bodily injury.” See TEX. PENAL CODE Ann. § 1.07(a)(17)(B)

(West 2011).6 The relevant inquiry is whether the instrumentality is capable of causing

death or serious bodily injury.        See McCain v. State, 22 S.W.3d 497, 503

(Tex.Crim.App. 2000). The statute speaks in terms of capability to cause death or

serious bodily injury, meaning that no actual death or serious bodily injury need have

occurred.      Id.   In McCain, the Texas Court of Criminal Appeals analyzed the

interpretation of the phrase “capable of causing death or serious bodily injury” found in

section 1.07(a)(17)(B). Id. The Court ultimately stated, “[t]he placement of the word


We view such a statement, insofar as a modicum of evidence being sufficient evidence,
as contrary to a rigorous application of the Jackson standard of review urged by the
Court in Brooks.
        6
            Further reference to the Texas Penal Code will be by reference to “section
___.”

                                            8
‘capable’ in the provision enables the statute to cover conduct that threatens deadly

force, even if the actor has no intention of actually using deadly force.” Id.


Analysis


          The evidence before the jury consisted of the testimony of Cleveland, JG, and

the photographs taken of JG’s injuries.       Turning first to Cleveland’s testimony, the

record reveals that, during direct examination, she testified that she observed the marks

around JG’s neck on the night of the burglary. Cleveland saw scratches on JG’s neck

that were consistent with the choking described by JG.           Further, when shown the

photographs of JG’s neck, she identified the bruising as being the same marks she

observed on the night in question. Cleveland further testified that JG reported feeling as

if she could “hardly breathe” as a result of appellant’s choking her. As stated above,

each of JG’s injuries were documented by photographs shown to the jury during the

trial. Cleveland then opined, based upon her experience in investigation of injuries

suffered in sexual assault cases previously investigated, that appellant’s hands, in the

manner they were used on JG’s throat, were capable of causing death or serious bodily

injury.


          JG testified about the injuries she received from appellant and demonstrated how

appellant had choked her. JG’s testimony was that she “couldn’t hardly breathe” as a

result of the choking. JG told the jury she thought appellant was going to kill her.


          Appellant’s chief complaint seems to be directed at the opinion testimony of

Cleveland.      Appellant points out that Cleveland admitted she did not investigate

homicide cases, and had not personally investigated any case involving a choking
                                              9
death. According to appellant’s theory, this means that her opinion was not worthy of

belief and actually amounted to no evidence.            We disagree with appellant’s

characterization of Cleveland’s opinion testimony.     What the cross-examination of

Cleveland accomplished was to give the jury more information to use in evaluating the

credibility of Cleveland’s opinion. The jury did this when it opted to find that a deadly

weapon, to-wit: appellant’s hands, had been used in the commission of the burglary.

We will not disturb the jury’s finding based upon the credibility and weight to be given

the testimony that the jury heard. See Brooks, 323 S.W.3d at 899.


       When we view the evidence in the light most favorable to the jury’s answer to the

special issue, as we must when analyzing the sufficiency of the evidence, we are left

with the conclusion that the jury’s answer was rational. Jackson, 443 U.S. at 319; Ross,

133 S.W.3d at. 620. As such, the evidence was sufficient to support the jury’s answer

beyond a reasonable doubt. Brooks, 323 S.W.3d at 917. Accordingly, appellant’s issue

is overruled.


                                      Conclusion


       Having overruled each of appellant’s issues, the judgment of the trial court is

affirmed.




                                                      Mackey K. Hancock
                                                           Justice

Publish.


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