By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Error, but not reversible, to admit
juvenile record in penalty phase of criminal trial [Counter v. State] (01-2-17).
On April 23, 2001, the Dallas Court of Appeals held that it was error to
admit the defendant’s juvenile record into evidence at the penalty phase of
his criminal trial for aggravated robberies. However, in view of the
circumstances of the offenses, the error was harmless in its effect on the
punishments imposed.
¶ 01-2-17. Counter v. State, UNPUBLISHED, No. 05-99-01206-CR, 2001 WL 406576,
2001 Tex.App.Lexis ____ (Tex.App.—Dallas 4/23/01)[Texas Juvenile Law (5th
Edition 2000)].
Facts: Larry Counter appeals his convictions for two counts of aggravated
robbery and one count of possession with intent to deliver more than four grams
but less than two hundred grams of cocaine. In two points of error, appellant
contends we must reverse his convictions for aggravated robbery because the
trial judge erred in failing to grant appellant's motion for mistrial and
admitting appellant's juvenile record during punishment. In an additional point
of error, appellant contends the trial judge erred in ordering his possession
sentence to run consecutively to his aggravated robbery sentences.
Appellant was arrested and charged with possession with intent to deliver more
than four grams but less than two hundred grams of cocaine. On July 10, 1998, he
pleaded guilty pursuant to a plea agreement with the State. That same day, the
trial judge accepted appellant's plea and set the case for a sentencing hearing
on August 6, 1998. Despite the trial judge's admonition that it was
"imperative" he return to court on August 6th, appellant failed to
appear in court that day. Appellant's bond was revoked, and an arrest warrant
issued. On November 17, 1998, appellant robbed a security guard and the manager
of a retail clothing store. When he was subsequently arrested for two counts of
aggravated robbery, the police also executed the arrest warrant in appellant's
drug case.
In July 1999, a jury convicted appellant in both aggravated robbery cases and
assessed punishment at forty-five and fifty-five years' confinement. Thereafter,
appellant appeared before the trial judge who sentenced him to five years'
confinement and a $1000 fine in accordance with his July 1998 negotiated plea
bargain. The trial judge then ordered appellant's possession with intent to
deliver sentence to commence when the aggravated robbery sentences had been
served. These appeals followed.
Held: Affirmed.
Opinion Text: In his first point of error, appellant contends the trial judge
erred in admitting his juvenile record during punishment. Appellant claims the
admission of this evidence was harmful and resulted in excessive punishments in
the aggravated robbery cases. The State concedes the admission of appellant's
juvenile record was error but maintains the error was harmless. After reviewing
the record, we agree the error was harmless in these cases.
Under rule 44.2(b), we disregard any nonconstitutional error unless it affected
a substantial right of appellant. See Tex.R.App.P. 44.2(b); Montez v. State, 975
S.W.2d 370, 373 (Tex.App.--Dallas 1998, no pet.); Hinds v. State, 970 S.W.2d 33,
35 (Tex.App.--Dallas 1998, no pet.). A substantial right is affected when the
error (i) had a "substantial and injurious" effect or influence in
determining the jury's verdict or (ii) leaves us in grave doubt whether it had
such an effect. Montez, 975 S.W.2d at 373; see also King v. State, 953 S.W.2d
266, 271 (Tex.Crim.App.1997). An error is harmless if the reviewing court
determines, after reviewing the entire record, that the error did not influence,
or had only slight influence on, the verdict. See Hinds, 970 S.W.2d at 35; see
also United States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir.1994).
In the aggravated robbery cases, we must determine whether the error in
admitting appellant's juvenile record had a substantial and injurious effect or
influence in determining the jury's verdict. After examining the record before
us, we conclude it did not. The jury had substantial evidence to support the
conclusion that appellant was guilty of both aggravated robberies. During
guilt/innocence, Rene Adley testified she was the manager of Simply Fashions, a
clothing store in Lancaster. On the morning of November 17, 1998, appellant
robbed the store while Adley was at work. Appellant, who was carrying a gun,
ordered Adley to open the safe. During the time he was in the store, Adley saw
appellant's face repeatedly. She testified in court she was "sure"
appellant was the man who robbed the store that morning.
Shelly Walker testified she was a Wells Fargo security guard assigned to Simply
Fashions in Lancaster on the morning of the robbery. Appellant entered the store
and pointed his gun in Walker's face. After he took her gun, he put his gun in
Walker's mouth and asked, "Are you supposed to be some motherfucking
hero?" Walker testified she was afraid for her life. Appellant forced her
to the rear of the store and ordered her to lie face down on the floor. He then
ordered Adley to open the safe. Walker testified she saw appellant's face
clearly and unequivocally identified him in court. She also testified she picked
appellant's photograph out of a photographic line-up several days after the
robbery.
During punishment, the jury learned appellant robbed five other people at
gunpoint in the same store on November 16, 1998, the day before the robberies in
these cases. During the November 16th robbery, appellant repeatedly threatened
to kill the victims and hit the assistant manager, Irene Beavers, in the face
with his gun. The jury also learned appellant had a prior felony conviction for
possession of phencyclidine and had pleaded guilty to possession with intent to
deliver cocaine shortly before these robberies. We conclude, after reviewing the
record as a whole, that the admission of appellant's juvenile record, including
that he shoplifted clothing, burglarized a coin- operated machine, and committed
criminal trespass, did not influence or had only a very slight influence on the
verdict in these cases. And, in light of the evidence presented at trial, it
certainly did not "substantially sway" jurors in assessing punishment
in the offenses in these cases. Accordingly, we conclude the error, if any, in
overruling defense counsel's objection was harmless. See Tex.R.App.P. 44.2(b).
We overrule appellant's first point of error.