                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00349-CR
                             NO. 02-12-00350-CR


PATRICK                                                       APPELLANT
WASHINGTON

                                         V.

THE STATE OF TEXAS                                                 STATE


                                     ------------

          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

                                     ------------

                       MEMORANDUM OPINION 1
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                                  I. Introduction

      In three issues, Appellant Patrick Washington appeals his aggravated

robbery convictions. We affirm.




      1
      See Tex. R. App. P. 47.4.
                                 II. Background

      At the conclusion of Washington’s trial, a jury convicted him of aggravated

robbery with a deadly weapon of both Janette Murillo and Melissa Seftas and

then assessed ninety years’ confinement and a $5,000 fine in each case. The

trial court entered judgment accordingly, and these appeals followed.

                           III. Admission of Evidence

      Washington complains that the trial court abused its discretion “by

improperly permitting testimony throughout the trial that substantially harmed”

him. Specifically, he complains of improper impeachment, improper bolstering,

and unfair prejudice. We give great deference to the trial court’s discretion, and

its ruling should not be reversed as long as it is within the “zone of reasonable

disagreement.” Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App.), cert.

denied, 534 U.S. 855 (2001); see also Montgomery v. State, 810 S.W.2d 372,

391 (Tex. Crim. App. 1991) (op. on reh’g) (setting out abuse of discretion

standard).

A. Impeachment

      In his first issue, Washington complains that the trial court abused its

discretion under rule of evidence 609 by admitting his misdemeanors that did not

involve moral turpitude during cross-examination when he “did not describe

himself as someone who ha[d] never been in trouble with the law before.” We

previously addressed this issue in West v. State, 169 S.W.3d 275, 278–79 (Tex.

App.—Fort Worth 2005, pet. ref’d) (citations omitted), stating,

                                         2
             An accused puts his character for veracity in issue by taking
      the stand, and he may be impeached in the same manner as any
      other witness.      Generally, prior offenses are inadmissible for
      impeachment purposes unless the offense resulted in a final
      conviction for either a felony or a crime involving moral turpitude and
      the conviction is not too remote in time. However, an exception
      arises when a defendant testifies and leaves a false impression as
      to the extent of his prior arrests, convictions, charges against him, or
      “trouble” with the police generally. In such a case, the defendant is
      deemed to have “opened the door” to an inquiry into the veracity of
      his testimony, and evidence of the defendant’s prior criminal record
      is admissible to correct the false impression.

            Generally, the false impression the State seeks to rebut must
      be created by the defendant through direct examination. However,
      when a defendant voluntarily testifies on cross-examination
      concerning his prior criminal record, without any prompting or
      maneuvering on the part of the State, and in so doing leaves a false
      impression with the jury, the State is allowed to correct that false
      impression by introducing evidence of the defendant’s prior criminal
      record.

The false-impression exception is a narrow one, and any statements that are

alleged to have left a false impression must be viewed in context. Grant v. State,

247 S.W.3d 360, 367 (Tex. App.—Austin 2008, pet. ref’d) (citing James v. State,

102 S.W.3d 162, 181 (Tex. App.—Fort Worth 2003, pet. ref’d)).           “The cases

holding that a defendant opened the door to evidence of prior convictions have

involved false testimony presented by the defendant on the stand of past law-

abiding behavior or direct denials of any prior conviction or trouble with the law.”

James, 102 S.W.3d at 181.

      In analyzing the exception’s applicability, we consider the defendant’s

statement in relation to the question asked, examine how broadly the question

asked could be interpreted, and analyze the relationship between the question

                                         3
asked and the trial’s major substantive issues.         Grant, 247 S.W.3d at 368.

In West, we held that the trial court had abused its discretion by allowing the

prosecutor to ask West whether he had been arrested “more than twenty times”

after West testified during cross-examination that he had been “shocked” that he

was being arrested, handcuffed, and taken to jail. 169 S.W.3d at 277, 279, 281.

We noted that West did not respond that he had never been “in trouble” with the

law, that his record was clear of any prior arrests, or that he had never been

arrested for DWI, the offense for which he was being tried. Id. at 277, 279.

West’s first two statements that he was shocked were made in response to the

prosecutor’s questions about his sobriety test performance, and the third was

made in response to questions about whether his memory would have been

more accurate on the night of the offense or at trial. Id. at 279.

      We     concluded     that   West’s       statements   about    being   shocked

“communicated his feelings at the time of his arrest, not an impression about his

criminal history,” reasoning that a person may still feel shocked at being arrested,

even if he has already been arrested multiple times. Id. Further, based on that

record, we concluded that the questions, the answers, and the overall tenor of

the cross-examination did not create a false impression about West’s prior

criminal history. Id.; see also James, 102 S.W.3d at 181 (holding that the trial

court abused its discretion by admitting a prior conviction when neither appellant

nor her character witnesses directly or indirectly presented a false picture that

she had no prior charges, convictions, or trouble with the law).

                                           4
      Here, in contrast, the context leading up to the admission of Washington’s

prior misdemeanor convictions was Washington’s description during cross-

examination of his interaction with the police at the police station. Washington

admitted to his prior robbery convictions and his conviction for unauthorized use

of a motor vehicle during his direct testimony. During cross-examination, he

testified that he was not under arrest at the beginning of his interaction with the

police and that he sat in a police car for around forty-five minutes in handcuffs

before the police took him to a holding facility and put him in an interview room.

The following dialogue between Washington and the prosecutor then ensued:

            Q. . . . What did they tell you [that] you were under arrest for?

            A. The detectives came in and asked me questions about a
      robbery. They didn’t say that I was being arrested.

            Q. What did you think was happening? Did you think you
      were under arrest?

            A. No, because I hadn’t committed a robbery.

            Q. So you don’t think -- now, you’re no stranger. You’ve been
      arrested before. Right?

            A. That was my first time getting in trouble.

            Q. Okay. That was the first time you got in trouble?

            A. Yes, sir.

            Q. All right.

           A. As far as some tickets and stuff of that nature, a
      misdemeanor charge.

            Q. Which ones were those?

                                        5
The parties then approached the bench. The prosecutor argued that Washington

had opened the door to the misdemeanors through his unsolicited response, and

the trial court allowed him to question Washington about his 1999 possession of

marijuana and unlawful carrying of a weapon convictions.

      When the prosecutor asked Washington to confirm that he had been

arrested before, Washington had already admitted in his direct testimony to

having been convicted of two aggravated robberies and unauthorized use of a

motor vehicle and had agreed at the beginning of his cross-examination that he

had robbery convictions. 2 But instead of agreeing again or pointing out that he

had already testified about his prior convictions for those offenses, Washington

replied, “That was my first time getting in trouble.” Washington then volunteered,

“As far as some tickets and stuff of that nature, a misdemeanor charge,” without

being asked a question by the prosecutor. See, e.g., Metts v. State, 22 S.W.3d

544, 549 (Tex. App.—Fort Worth 2000, pet. ref’d) (“[W]hen a witness testifies

gratuitously as to some matter that is irrelevant or collateral to the proceeding

and falsely states or insinuates that he has not had trouble with the police in the

past, he has opened the door to impeachment.”).        Based on this record, we

cannot say that the trial court abused its discretion by concluding that

Washington had volunteered the information about his prior criminal record and

      2
       The prosecutor asked Washington, “And you’re no stranger to robberies.
You know what robberies are?” Washington agreed, “Right. Absolutely.” He
gave the same answer when asked whether he had been to the penitentiary for
two separate robberies.

                                        6
had left a false impression, particularly to the extent that he had made the

misdemeanors sound like traffic tickets instead of the drug possession and

unlawful carrying of a weapon convictions that they actually were. See id. at

548–49 (holding that when appellant testified that he had never been involved in

anything “remotely like” his indecent exposure charges, and he and two others

testified about his good and law abiding character, the trial court’s ruling that he

had opened the door to the admission of evidence of his prior arrest for indecent

exposure was not outside the zone of reasonable disagreement); see also Grant,

247 S.W.3d at 369 (“Grant’s statement that he had ‘never done that to anybody’

was sufficient to invite impeachment with the prior assault evidence that the State

introduced.”). We overrule Washington’s first issue.

B. Other Evidence

      In his second issue, Washington claims that the trial court abused its

discretion by admitting videotapes of Seftas’s and Murillo’s photo lineup process

at the police station after they had already identified him in open court and

testified that they had identified him from photo lineups and that this evidence

was more prejudicial than probative under rule of evidence 403. And in his third

issue, Washington complains that the trial court abused its discretion by allowing

Detective Weisinger to testify about “women’s purses with no identification” found

inside Washington’s hotel room because those items’ prejudicial impact

outweighed their probative value under rule of evidence 403.



                                         7
      Assuming without deciding that the trial court abused its discretion under

any of these theories, we will conduct a harm analysis to determine whether

these alleged errors had a substantial and injurious effect or influence in

determining the jury’s verdict. See Tex. R. App. P. 44.2(b); see also Solomon v.

State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (applying nonconstitutional

harm standard to erroneous admission of evidence).

      1. Harm Analysis

      Under rule 44.2(b), we disregard the error if it did not affect appellant’s

substantial rights. Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249,

259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). A

substantial right is affected when the error had a substantial and injurious effect

or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66

S. Ct. 1239, 1253 (1946)). Conversely, an error does not affect a substantial

right if we have “fair assurance that the error did not influence the jury, or had but

a slight effect.” Solomon, 49 S.W.3d at 365; Johnson v. State, 967 S.W.2d 410,

417 (Tex. Crim. App. 1998).

      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the

case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also

                                          8
consider the jury instructions, the State’s theory and any defensive theories,

whether the State emphasized the error, closing arguments, and even voir dire, if

applicable. Id. at 355–56.

      2. Pretrial and Voir Dire

      Before voir dire, Washington’s attorney informed the trial court and the

State that Washington planned to testify and that the crux of the defense’s case

was that the alleged victims were drug dealers, that this was a drug deal “gone

bad,” and that “it’s our position they were lesbians and he had a sexual

relationship with one of them, and that’s the reason why they have wrongfully

accused him.”

      During voir dire, the prosecutor made sure that the potential jurors

understood that in lots of cases, DNA evidence or fingerprints were not available

and that television shows like CSI did not represent reality. He also pointed out

that their job was to judge the credibility of the witnesses, and he explained how

a double-blind photo lineup worked to keep from indirectly influencing a witness’s

viewing of the lineup. Neither side made an opening statement.

      3. The State’s Case

      Seftas, a twenty-nine year-old store manager, testified that on January 12,

2010, she, her girlfriend Murillo, and Murillo’s two children lived in a two-bedroom

apartment in an area that “wasn’t the best,” in the part of Dallas located in

Denton County. The women were expecting Seftas’s friend, who was going to

drop his son off for Seftas to babysit.      At around 11:15 p.m., when Murillo

                                         9
answered the knock at the door, she saw Washington and another man and told

Seftas, “I think it’s for you because I don’t know who it is.”

      While Seftas and Murillo traded places at the door, Washington pulled his

turtleneck shirt up over his face; the other man was wearing a black, puffy jacket

that covered his face to his nose. 3 Seftas asked Washington, “Can I help you?

What’s going on?”

      Seftas said that Washington pushed his way into the apartment with a

black handgun 4 and pointed it at her head. Both of the men demanded money.

The man in the black jacket grabbed Murillo’s purse. After Murillo begged him

not to take her purse, the man threw it at her and ordered her to give him the

money out of it. Murillo had around $40, which she gave to the men. The men

also took the loose change that was by the couch, the money that Murillo had

laid out on the couch while she was paying bills, and some lottery tickets that

“were already scratched winners.”

      After Washington demanded more money, Seftas told him that there was

money in her car. Seftas said that it was the only thing she could think of to get

      3
        During cross-examination, Seftas agreed that in her written statement to
the police around a week after the offense, she had indicated that the second
man wore a mask, but she said that although at first appearance, it looked like it
was a mask, “after, you know, thinking about it,” she realized “that the point at the
nose was just the zipper.” Murillo testified that the other man was wearing a
mask, “but it was like one of those ski masks that just did the bottom. It wasn’t
like a whole head thing.”
      4
         Murillo described the gun as “a short like little pistol-looking gun” and said
that it was either black or gun-metal gray and not a revolver.

                                          10
the two men out of the apartment because she was afraid for Murillo, the

children—who were asleep in the next room—and herself. Murillo said that her

biggest fear at the time was that Washington was going to kill her with her kids in

the next room. As soon as the men left with Seftas, Murillo shut and locked the

door and then called 911.

      Washington walked Seftas down the stairs with the gun to her head and

told her that if she tried anything, “they would find [her] in a bag in the woods.”

She opened the car door remotely, and while Washington rummaged through her

car, Seftas backed up and ran back to her apartment. She saw the men running

away through the woods as she made her escape. Seftas said that her car had

contained a $300 money order made out to the apartment complex for her rent

and that the men stole it. They also tried to rip out her car stereo and took some

of the CDs that were in her car.

      Both Seftas and Murillo testified that they had recognized Washington

because his girlfriend’s apartment was in the same complex, and they both

identified him at trial as the man who had robbed them.          When the police

responded to Murillo’s 911 call, Seftas told them that she thought his name was

“Mike” because that was the name he had given once when he “bum[med] a

cigarette” from her. 5 Murillo testified that he wore black gloves when he handled

the gun.


      5
       Washington testified that he had never smoked cigarettes.

                                        11
      Dallas Police Detective James Weisinger was assigned to investigate the

robbery the day after it occurred. He knew that the suspect had been identified

as “Mike,” and he went to interview Seftas and Murillo. From the information that

Seftas gave him, Detective Weisinger went to the apartment complex’s leasing

office to find out who lived in Apartment 616 and then contacted Jessica Green,

the apartment’s occupant. Green gave him Washington’s name, and after he

obtained a photo of Washington, he compiled a photo lineup and gave it to

Detective Otha Hampton to conduct a double-blind photo lineup.

      Two days after the robbery, Seftas went to the Dallas police station and

was videotaped identifying Washington from the double-blind photo lineup

conducted by Detective Hampton, the lineup administrator. 6 Over Washington’s

objections, the trial court admitted the videotape and allowed it to be published to

the jury. The videotape shows that Seftas’s identification of Washington was

immediate and decisive. Based on Seftas’s identification, Detective Weisinger

obtained an arrest warrant for Washington.

      Detective Weisinger subsequently created a photo lineup for Murillo to

view when he learned that she had also suffered a loss in the robbery, and he

obtained another arrest warrant after she also identified Washington.           The

videotape of Murillo identifying Washington from the double-blind photo lineup


      6
       Detective Hampton testified that a double-blind photo lineup is a lineup
that is created by another detective and then administered by someone who
does not know who the suspect is.

                                        12
was admitted over Washington’s objections and published to the jury. When

asked by the officer conducting the photo lineup how confident she was in her

identification, Murillo said, “Confident enough that I feel like I’m going to cry, I

started shaking, and it upset my stomach.” 7

      Washington was arrested on January 27, 2010, and Detective Weisinger

procured a search warrant for Washington’s motel room to search for the black

gun used during the offense, the music CDs, and the $300 money order. When

police searched Washington’s hotel room, they found a black semiautomatic, 9-

millimeter Taurus pistol submerged in the toilet tank, several women’s purses

with no identifying information, eighteen music CDs—but none belonging to

Seftas—multiple cell phones, some video games, and eight rounds of

ammunition for a 9-millimeter weapon. Detective Weisinger agreed that there

were two women present at the motel room when Washington was arrested and

that this could explain the purses. The trial court admitted the gun into evidence.

      4. The Defense’s Case

      Washington’s sister and his stepsister testified that after a dying relative

was released from the hospital, the family gathered together on January 12,

2010, to say their goodbyes. They claimed that Washington was with family all

that day and night. During cross-examination, both admitted that they had never

called Detective Weisinger to tell him about Washington’s alibi.

      7
       Seftas and Murillo both testified that Murillo had vomited from fear while
on the phone with 911 after the robberies.

                                        13
      During his direct examination, Washington testified that he had two prior

aggravated robbery convictions and a conviction for unauthorized use of a motor

vehicle from 2003. He agreed that prior to January 12, 2010, he knew Murillo

and Seftas, having seen them from time-to-time when he shared Apartment 616

with Green in the same apartment complex. Washington moved out of Green’s

apartment at the end of October 2009, but they reunited two months later on

Christmas Eve. Washington claimed that he and Seftas had engaged in a sexual

relationship. He denied robbing the two women and said that he was with his

family on January 12, 2010.

      During cross-examination, the trial court admitted into evidence the written

statement that Washington had given to police. Washington said that he did not

write anything about going to his sister’s and stepsister’s homes because

Detective Weisinger did not ask him about that. Washington instead wrote in his

statement,

      White women in my appartments I use 2 deal with. Got dope from
      her from time 2 time. Delt bad with a friend of mind one night he
      took his the dope back n it was not a pomblem. She stay n the next
      unit from me with her girl 5-5 hevy girl. She wers glasses.[8]

Washington complained that the statement was not based on the robbery but

rather was about how he had met Seftas and Murillo. After Washington testified

about his conversation with the police, the trial court concluded that he had

opened the door to his misdemeanor convictions through an unsolicited

      8
      We have included the statement as Washington wrote it in his own hand.

                                       14
response, as we discussed above in our analysis of his first issue, and allowed

the State to question Washington about his 1999 possession of marijuana and

unlawful carrying of a weapon convictions.

      5. State’s Rebuttal

      Detective Weisinger testified that when Washington was taken to the

police station, he told Washington that he was under arrest for aggravated

robbery and then took a written statement from him. He agreed that he had

asked Washington how he knew Seftas and Murillo but stated that he had also

asked Washington about the offenses. Washington told him that he had not

robbed the two women, and then he gave the written statement.            Detective

Weisinger stated,

      [Washington] said that he went up to the apartment where the -- the
      girls were because they had sold a friend some bad dope and that
      he knew where they lived, so he took the guy up there. But he said
      he didn’t step in the apartment. And so the guy went in, got his
      money back, and left.

Detective Weisinger said that Washington never told him anything about being at

a party for his dying stepsister and that no one ever contacted him about an alibi.

Seftas testified that she had never had a sexual relationship with Washington

and that she had never dealt drugs.

      6. Closing Arguments

      The State waived opening. Washington’s attorney argued that poor police

work meant that Washington should be acquitted because there were no

fingerprints.   He pointed out that Seftas and Murillo disagreed on what the

                                        15
perpetrators were wearing and that their failure to shut the door when they saw

someone they did not know was “ridiculous.” He also argued that it made no

sense for Washington to go into the apartment without a mask on, saying, “Who

in their right mind is going to rob somebody without a mask on?” And he said

Seftas and Murillo’s version of events was implausible because they were asking

the jury to believe that the perpetrators would leave a victim in the apartment to

call 911 while escorting the other one to her car and to believe that a robber

would allow Murillo to keep her purse.

      Washington’s attorney argued that Washington and his witnesses were

more credible than the State’s witnesses. And while he pointed out that it was

obvious from Washington’s written statement that he was “not a very educated

man,” he also argued, “[W]hy would anybody be that stupid to go rob somebody

at gunpoint without a mask on, somebody you knew? . . . Dude, is that stupid or

what? It’s not going to happen.”

      The prosecutor then responded to Washington’s arguments by arguing

that Seftas and Murillo were credible, reminding the jury about their reactions in

the photo lineup recordings and that they had no motivation to lie. He stated,

with regard to the videotaped lineups, “Do they think, well, let’s see, hmm -- I

mean, they must be the smartest people on earth because they’re thinking, well,

you know, in a couple of years we’re going to be in front of a jury and we’re going

to have to make this look good.” He argued that Washington’s witnesses had



                                         16
perjured themselves and that Washington had made up his story about having

had a sexual relationship with Seftas.

      The prosecutor argued that Washington was stupid enough to rob

someone who could identify him because “[h]e’s been thrown in prison already

for two separate aggravated robberies, which means those people identified him

too. He got caught on those too, so he’s not the smartest guy out there.” The

prosecutor rebutted Washington’s fingerprint argument by pointing to Murillo’s

testimony that the man with the gun wore gloves. And he asked if Washington

did not commit the robbery, then why did he put a fake alibi in his written

statement: “If he didn’t do it, why is he trying to give someone else a motive for

doing it?”

      7. Analysis

      While Washington complains that the improper admission of the

videotapes caused him unfair prejudice, the short videos of Murillo and Seftas

were merely cumulative of evidence that had already been presented by both

women, who had identified Washington at trial and in double-blind photo lineups

as someone they had seen at their apartment complex. Further, Washington

admitted that he had been living in the same apartment complex and had seen

the women there and testified that he had been having a sexual relationship with

one of them.    While the prosecutor argued in his closing argument that the

women’s videotaped reactions boosted their credibility, Washington’s own

testimony made their reactions unnecessary with regard to his identity.

                                         17
Therefore, we conclude that in the context of the entire case against Washington,

the error in the admission of this evidence, if any, did not have a substantial or

injurious effect on the jury’s verdict and did not affect his substantial rights. See

King, 953 S.W.2d at 271 (setting out standard for harm under rule 44.2(b)). We

disregard the error, if any, and overrule Washington’s second issue.

      Further, with regard to the admission of Detective Weisinger’s testimony

about the “women’s purses with no identification” found in Washington’s hotel

room, the prosecutor did not mention these items in his closing argument, the

amount of time spent on these items was minimal when compared to the rest of

the evidence presented at trial, and Weisinger agreed that two women were

present at the motel room when Washington was arrested and that their

presence could have explained the purses. Cf. Tex. R. Evid. 403 (stating that

relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence). The crux of the jury’s decision, as argued

by both parties in closing, was credibility—whether to believe Seftas and Murillo

or to believe Washington.      Therefore, to the extent that admitting Detective

Weisinger’s brief testimony about finding other purses in Washington’s motel

room was error, we also conclude that, in the context of the entire case against

Washington, it did not have a substantial or injurious effect on the jury’s verdict



                                         18
and did not affect his substantial rights.   See King, 953 S.W.2d at 271. We

disregard the error, if any, and overrule Washington’s third issue.

                                 IV. Conclusion

      Having overruled all of Washington’s issues, we affirm the trial court’s

judgments.

                                                   PER CURIAM


PANEL: MCCOY, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 25, 2013




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