TIMOTHY JAMES JEFFERSON, Appellant v. THE STATE OF TEXAS, Appellee
Opinion By Justice Fillmore
A jury convicted Timothy James Jefferson of aggravated robbery and assessed punishment of twenty years' imprisonment. In one issue, Jefferson asserts the trial court erred by admitting evidence of Jefferson's tattoos during the guilt/innocence phase of the trial. We affirm the trial court's judgment.
On January 16, 2009, the Foot Locker store “off Westmoreland and Illinois” was robbed. Nelson Ramirez, the assistant manager of the Foot Locker store, testified two young, African–American men entered the store and told Ramirez and Edgar Gonzalez, another Foot Locker employee, to put their hands up. The robbers were wearing bandanas and had “hoodies” on, allowing Ramirez to see only their eyes and noses. One of the robbers had a gun. The robber with the gun told Ramirez to open the cash registers. The other robber took Gonzalez into the storeroom to “pull shoes.” According to Ramirez, the robbers took money from the cash registers and from Gonzalez, approximately six pairs of “Jordan” shoes, and several white tee shirts. Ramirez testified that when he later watched a surveillance video of the robbery, it appeared there were two additional men outside the store. The robbers inside the store went outside with the shoes, handed them to the individuals outside the store, and returned to the store to take more shirts.
Dallas Police Department Officer Stephen Cleary testified he responded to a call from the Foot Locker store. The cash registers in the store were on the floor, clothing racks had been pulled over, and shoe boxes in the back of the store had been pulled off the shelves. The store's employees played a surveillance video for Cleary. Cleary saw two individuals enter the store wearing “hoodies” and baggy clothes. At least one of the individuals had a gun. The robbers were careful to keep their heads lowered. Further, the “hoodies” partially covered the robbers' faces. The robbers ordered the store's employees to empty the cash registers. There were also shoe boxes on the floor of the storeroom and shoes missing from the storeroom.
Lisa Bowers, a Dallas Police Department crime scene analyst, was able to obtain fingerprints from the cash registers and from shoe boxes that she was told the robbers touched. According to Bowers, fingerprints are very fragile. If an item is handled or moved, any fingerprints on the item can be destroyed. Detective Kenneth Blank compared the fingerprints obtained by Bowers to Jefferson's fingerprints. According to Blank, Jefferson's fingerprint was on a box of size 9.5, Jordan 2.5 team shoes.
Omari Frazier testified he had pleaded guilty to robbing the Foot Locker store and had been sentenced to fifteen years' imprisonment. Frazier admitted he had been charged with other offenses as well and could have received a sentence of life imprisonment. According to Frazier, Jefferson and Gregory Miller participated in the robbery of the Foot Locker store and both Jefferson and Miller had guns during the robbery. Frazier recalled all three men entered the store. Frazier testified they took cash from the registers, shirts, and “Jordan” shoes from the store. Frazier did not recall taking money from Gonzalez.
Frazier testified that, at one time, he was living with Jefferson's family. He heard that Jefferson's father gave the police a shirt from the robbery and implicated Frazier in the robbery. Although he was arrested, Frazier did not have any “hard feelings” toward Jefferson or his father. Aaron Beasley, a friend of Jefferson's, testified he was in the same cell as Frazier in the Dallas County jail. According to Beasley, Frazier was angry with Jefferson and said he was “trying to get back” at Jefferson. Beasley testified Frazier “felt like” Jefferson was responsible for Frazier receiving a fifteen-year sentence. Beasley was not aware that Frazier had pleaded guilty to the charge.
Jefferson testified and denied any involvement in the robbery. He stated he had been to the Foot Locker store a number of times to shop and had bought “Jordan” shoes from the store approximately two weeks before the robbery. Jefferson testified he paid cash for the shoes but, even though he keeps his receipt from every purchase, had been unable to locate the receipt for this purchase. According to Jefferson, although he wears a size 10 shoe, he might have tried on a size 9.5 because “some Jordan shoes, they come thin in size. So they fit tight on my feet, so I have to get a bigger size if they fit tight.” Jefferson testified his fingerprint could have been on the shoe box from this shopping trip.
According to Jefferson, after his father told the police that Frazier had been wearing a Foot Locker shirt, things “soured” between him and Frazier. Frazier had a grudge and “got into altercations” with Jefferson in jail. Jefferson believed Frazier named him as one of the robbers because Frazier was angry with Jefferson's father. Jefferson did not know why Frazier also named Miller as one of the robbers.
At a bench conference, the prosecutor requested she be allowed to question Jefferson about whether he was “all about getting money.” The prosecutor indicated Jefferson had a tattoo that stated “Get Money,” as well as other tattoos, and she wanted to question him about the tattoos. Jefferson's trial counsel objected the evidence was not relevant and, to whatever extent Jefferson's tattoos were relevant, the prejudicial effect outweighed the probative value of the evidence. The trial court overruled the objections.
Jefferson testified in response to the prosecutor's questions that he had tattoos. Reading a tattoo on his left arm and a tattoo on his right arm together, the complete tattoo says, “Get Money.” He got the tattoo during his ninth grade year in high school because his goal was to make a career in football and get money for his family. A tattoo on Jefferson's stomach reads, “In love with my money.” According to Jefferson, most of the students in his high school had tattoos and the majority of those tattoos involved money.
The jury found Jefferson guilty of aggravated robbery. During the punishment phase of the trial, the jury heard evidence that Jefferson had been involved in several other aggravated robberies. It also heard testimony that Jefferson was possibly affiliated with a gang and that some of Jefferson's other tattoos could be related to his gang membership. Finally, the jury heard evidence that Jefferson did not have any prior criminal convictions and was an asset to his family. The jury assessed punishment at twenty years' imprisonment.
In his sole issue, Jefferson contends the trial court erred by admitting evidence of Jefferson's tattoos during the guilt/innocence phase of the trial because (1) the evidence was not relevant under rule of evidence 401, and (2) even if the evidence was relevant, it should have been excluded under rule of evidence 403 because its probative value was substantially outweighed by its prejudicial effect. We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App.2007). We must uphold the trial court's ruling so long as it is within the zone of reasonable disagreement. Id.
Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401. Pursuant to rule 401, evidence is “relevant” if it influences facts that have something to do with the ultimate determination of guilt or innocence in a particular case. Mayes v. State, 816 S.W.2d 79, 84 (Tex.Crim.App.1991); Shanklin v. State, 190 S.W.3d 154, 167 (Tex.App.—Houston [1st Dist.] 2005), pet. dism'd, improvidently granted, 211 S.W.3d 315, 315–16 (Tex.Crim.App.2007). Rule 403 allows for the exclusion of otherwise relevant evidence when 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.” Tex.R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Shuffield v. State, 189 S.W.3d 782, 787 (Tex.Crim.App.2006).
Assuming, without deciding, that the trial court erred by finding that evidence of Jefferson's tattoos was relevant during the guilt/innocence phase of the trial, we conclude any error does not mandate reversal of this case. Generally, the erroneous admission of evidence is non-constitutional error. Russell v. State, 155 S.W.3d 176, 181 (Tex.Crim.App.2005) (“Because the appellant complains about the violation of an evidentiary rule, the error is non-constitutional and will be disregarded unless it affected the appellant's substantial rights); see also Casey v. State, 215 S.W.3d 870, 885 (Tex.Crim.App.2007) (analyzing whether defendant was harmed by erroneous admission of photographs as non-constitutional error); Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002). An appellate court must disregard a non-constitutional error that does not affect the defendant's substantial rights. Tex.R.App. P. 44.2(b); Casey, 215 S.W.3d at 885. We will not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance the error did not influence the jury, or influenced the jury only slightly. Barshaw v. State, 342 S.W.3d 91, 93 (Tex.Crim.App.2011). In other words, we must reverse a conviction for non-constitutional error if we have “grave doubt” about whether the result of the trial was free from the substantial influence of the error. Id. at 94. “ ‘Grave doubt’ means that ‘in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.’ ” Id. (quoting Burnett v. State, 88 S.W.3d 633, 637–38 (Tex.Crim.App.2002)).
In assessing potential harm, we focus not on whether the outcome of the trial was proper despite the error, but on whether the error had a substantial or injurious effect or influence on the jury's verdict. Id. at 93–94. In making this evaluation, we must consider the entire record and “calculate, as much as possible, the probable impact of the error upon the rest of the evidence.” Coble v. State, 330 S.W.3d 253, 280 (Tex.Crim.App.2010), cert. denied, 513 U.S. 829 (2011). We consider all the evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with other evidence in the case. Barshaw, 342 S.W.3d at 94. We may also consider the jury instructions, the parties' theories of the case, closing arguments, voir dire, and whether the State emphasized the error. Id.; Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000). The weight of the evidence of the defendant's guilt is also relevant in conducting the harm analysis under rule 44.2(b). Neal v. State, 256 S.W.3d 264, 285 (Tex.Crim.App.2008); Motilla, 78 S.W.3d at 357–58.
Jefferson's testimony about his tattoos is contained on less than three pages of an almost 200 page record of the guilt/innocence phase of the trial. During the trial, Frazier admitted he robbed the Foot Locker store and testified Jefferson was also involved in the robbery. Further, Jefferson's fingerprint was found on one of the shoe boxes handled by the robbers. Jefferson testified he believed the fingerprint was placed on the box during a shopping trip two weeks prior to the murder. According to Jefferson, he generally wore a size 10 shoe, but might have tried on a size 9.5 shoe, depending on the fit of the shoe. He also testified, however, that some “Jordans” tend to run small, so he might need to buy a bigger size. He did not testify about any need to buy a shoe smaller than his usual size. Finally, Bowers testified fingerprints are fragile and can be destroyed if an item is touched or moved.
The jury also heard testimony about Frazier's reasons for testifying. Frazier admitted he had several criminal charges pending against him when he pleaded guilty to the charge of robbing the Foot Locker store and that he was facing a possible sentence of life imprisonment. There was evidence that Jefferson's father implicated Frazier in the robbery. Although Frazier testified he was not angry with Jefferson or Jefferson's father, Jefferson and Beasley testified Frazier was angry. Beasley testified Frazier held Jefferson responsible for Frazier's fifteen-year sentence, but admitted he did not know that Frazier had pleaded guilty to the charges. Beasley also admitted he and Jefferson were friends.
During the defense's closing argument, counsel stated there were only three pieces of evidence that Jefferson was guilty of the robbery: Frazier's testimony, the fingerprint on the shoe box, and “at the very end, they brought up that Timothy Jefferson has some tattoos.” Counsel noted that many people had tattoos and stated, “I'm going to leave the tattoos alone because I—I don't think that any of you are going to find somebody guilty based on them having tattoos.” Defense counsel then argued Frazier's testimony was not consistent with the rest of the evidence and that Frazier simply was not credible. Defense counsel finally asserted Jefferson's fingerprint was on a shoe box containing Jefferson's size of shoe and, therefore, it was a reasonable possibility the fingerprint was placed on the shoe box during Jefferson's previous visit to the store.
In response, the prosecutor argued a fragile fingerprint does not last for two weeks on a box containing a popular brand of shoe that it is taken on and off the shelf. Further, the fingerprint was on a box of shoes that was handled by the robber. The prosecutor also asserted that Frazier was credible and someone arrested for a crime often implicates the other participants. The only mention of the tattoos during the State's closing argument was the prosecutor's claim the tattoos went to Jefferson's credibility. The prosecutor argued it was not credible that a ninth grader gets a tattoo on his arms stating “Get Money” because he might have a career in football. The prosecutor then argued Jefferson did not have a job, did not attend school, and was “getting money” with Frazier and Miller. She finally summarized the evidence and argued that Jefferson was guilty of the robbery.
The jury was properly instructed that it was the exclusive judge of the facts proved, the credibility of the witnesses, and the weight to be given to the testimony. It was also instructed that Frazier was an accomplice, if any offense was committed, and that Jefferson could not be convicted based on Frazier's testimony unless the jury believed (1) Frazier's testimony was true and showed that Jefferson was guilty of the charge against him, (2) there was evidence other than Frazier's testimony tending to connect Jefferson with the charged offense, and (3) based on all the evidence, Jefferson was guilty beyond a reasonable doubt.
Considering the record as a whole, we cannot conclude the admission of evidence of Jefferson's tattoos during the guilt/innocence phase of the trial had a substantial or injurious effect or influence on the outcome of the proceeding.1 See Barshaw, 342 S.W.3d at 93–94; Motilla, 78 S.W.3d at 359–60 (considering all evidence and relevant factors, error in admitting testimony was harmless under a Rule 44.2(b) analysis). Accordingly, Jefferson was not harmed by any error of the trial court in admitting the testimony. See Tex.R.App. P. 44.2(b). Because we have assumed the evidence about Jefferson's tattoos was inadmissible under rule 401, we need not consider Jefferson's argument that it should have been excluded under rule 403. See Pondexter v. State, 942 S.W.2d 577, 584 (Tex.Crim.App.1996) ( “Since the evidence is inadmissible under Rule 401, there is no need for a 403 or 404 analysis.”).2
We affirm the trial court's judgment.
FN1. In his brief, Jefferson asserts he was harmed because the evidence of his tattoos infringed on his right to free expression pursuant to the First Amendment to the United States Constitution. However, Jefferson did not raise this constitutional argument in the trial court and, therefore, has waived it on appeal. See Tex.R.App. P. 33.1(a)(1)(A); Devoe v. State, No. AP–76289, 2011 WL 6183606, at *16 (Tex.Crim.App. Dec. 14, 2011).. FN1. In his brief, Jefferson asserts he was harmed because the evidence of his tattoos infringed on his right to free expression pursuant to the First Amendment to the United States Constitution. However, Jefferson did not raise this constitutional argument in the trial court and, therefore, has waived it on appeal. See Tex.R.App. P. 33.1(a)(1)(A); Devoe v. State, No. AP–76289, 2011 WL 6183606, at *16 (Tex.Crim.App. Dec. 14, 2011).
FN2. See also Smith v. State, No. 12–06–00021–CR, 2007 WL 2178541, at *8 (Tex.App.—Tyler July 31, 2007, no pet.) (mem. op., not designated for publication).. FN2. See also Smith v. State, No. 12–06–00021–CR, 2007 WL 2178541, at *8 (Tex.App.—Tyler July 31, 2007, no pet.) (mem. op., not designated for publication).
ROBERT M. FILLMORE JUSTICE