Opinion issued April 30, 2013.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00662-CR ——————————— IRVIN JOSEPH WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1313198
MEMORANDUM OPINION
A jury convicted appellant, Irvin Joseph Williams, of murder and assessed
his punishment at 52 years’ confinement. On appeal, appellant contends that (1)
the evidence is insufficient to support his conviction; (2) he should receive a new punishment hearing because of improper jury argument by the prosecutor; (3) the
trial court erred in denying his motion for mistrial after the prosecutor elicited
evidence of an extraneous offense; and (4) he was denied due process because of
prosecutorial misconduct. We affirm.
BACKGROUND FACTS FROM GUILT/INNOCENCE
On March 9, 2008, Sadar Cade heard footsteps on the stairs leading to John
Brown’s apartment, which was directly over Cade’s apartment. Shortly thereafter,
he heard fighting, then three consecutive gunshots, one right after the other. Cade
then heard footsteps on the stairs leading to the parking lot, but he never saw who
was making the noise.
When officers from nearby University of Houston arrived, they found the
body of John Brown just inside the door to his apartment. He had five gunshot
wounds—four to his arms and one to his neck. The medical examiner testified that
the shot to the neck severed a carotid artery and would have been fatal, but that the
cause of death was the cumulative blood loss caused by all of the gunshot wounds.
A. Taravella, a crime scene investigator for the Houston Police Department
[HPD], soon arrived at the scene and found evidence indicating that Brown was a
drug dealer. In the apartment, Taravella recovered a scale, 207 grams of cocaine,
and over $8,000 in cash from a Gucci shoebox near the sofa. He also found
several rounds of handgun ammunition, but did not locate a gun. From the
2 ballistics evidence, Taravella concluded that there were two shooters. One shot
was fired from close range, struck Brown in the neck, went through the door, and
hit a nearby building. Two other shots were fired from across the room near the
television. Two cartridge casings fired from a .40 caliber gun were recovered from
this area.
Taravella noticed several shoeboxes in the bedroom of the apartment that
appeared to have been “ransacked.” He thought that the suspects might have
handled the boxes while rummaging through them, so he dusted several of the
boxes for prints. He recovered a fingerprint from a Silver Prada shoebox.
On July 30, 2008, the fingerprints taken from the murder scene were
identified as appellant’s prints.
On September 5, 2008, Officers M. Smith and B. Bryan of HPD saw two
men acting suspiciously at an apartment complex in southwest Houston. Because
the complex had a criminal trespass affidavit on file, the officers attempted to
detain the men. Each time the officers approached, the two men would turn and
walk in the opposite direction. Eventually, the officers were able to detain the two
men—appellant and David Cyres. When they were searched for the officers’
safety, the police recovered a .40 caliber Glock handgun from Cyres. Cyres was
arrested, but appellant was released. Ballistics testing on the gun recovered from
Cyres showed that it was the same .40 caliber gun used to shoot Brown.
3 With fingerprint evidence placing him at the scene of the crime and evidence
placing him in the company of a person carrying the gun used in the murder,
Officers M. Miller and T. Miller, began searching for appellant.
On October 27, 2008, Officers Miller traveled to Louisiana to look for
appellant in New Orleans, his hometown. While there, they spoke to his mother,
but were unable to locate appellant. So, the officers returned to Houston and had a
warrant issued for appellant’s arrest.
On October 31, 2008, appellant was arrested in Louisiana, based on the
Texas warrant. Officers Miller traveled again the Louisiana, where, after being
read and waiving his statutory rights, appellant gave a voluntary statement. In his
statement, appellant told Miller that he went with Israel Hudgins to buy crack
cocaine from Brown. A person he knew only as “D,” later identified as Darryl
Pierre, drove them to Brown’s apartment in a grey Ford Focus. They purchased
cocaine, left, then returned later to purchase more.
When they entered the apartment, appellant said that Hudgins shot Brown in
the neck, then handed a .40 caliber gun to appellant and threatened to shoot him if
appellant did not also shoot Brown. Appellant said that he then shot Brown two
times. Then, according to appellant, Hudgins went into the back to look for drugs
and money and told appellant, “Bitch, you better do something.” Appellant said
that he then intentionally touched a box and left a fingerprint “so that the detective
4 could find me.” He and Hudgins then took approximately $2,000 and Brown’s .9
millimeter handgun and fled. Pierre acted as the get-away driver.
In his statement, appellant also admitted that he was carrying the same .40
caliber gun the day that David Cyres was arrested, and that he gave Cyres the gun
so that he, appellant, would not get in trouble.
At trial, appellant presented Pierre, who had already been convicted of this
murder, as a defense witness. Pierre testified that, on the day of the murder, he,
appellant, and Hudgins went to buy drugs at someone’s apartment. While he
waited in the car, Hudgins and appellant went inside. Pierre knew that Hudgins
had a gun, and when asked if Hudgins had shown the gun to appellant, Pierre
replied, “yeah, he got them. He handed—I knew he put one on him. I didn’t know
about the other one.” Pierre did not hear any gunshots because he was listening to
music.
Hudgins got in the front passenger seat, threw a chrome .9 mm handgun into
his lap, and said, “come one, let’s go.” Pierre testified that Hudgins told him that
“he shot the guy in the neck with the .357 and gave [appellant] a .40 and told him
if he don’t shoot him, he was going to shoot him.”
On cross-examination, Pierre admitted that he gave contrary information to
Officer Miller during an interview on November, 21, 2008. In that interview,
Pierre told Miller that, on the day of the murder, appellant came to Pierre’s house
5 and said that “he wanted to hit a lick” or rob someone. Pierre told Miller that it
was appellant’s idea to rob Brown because he knew Brown had a lot of money.
Pierre said that both appellant and Hudgins had their own guns when they went to
Brown’s apartment. Pierre told Miller that after the men returned to the car,
appellant said, “I got $1000,” and “I had to shoot him. If we didn’t kill him, he
would have come looking for us.”
Pierre also testified that, as he drove away from the apartment, appellant
cautioned him, “You better slow down. You’re going to make this car hot,” or
draw police attention.
Pierre testified that he had lied to Officer Miller when he said that a robbery
was appellant’s idea. He said that he lied because he believed that it was appellant
who had implicated him in the murder. He explained that he changed his story
because he had since come to believe that it was Hudgins who had implicated him.
SUFFICIENCY OF THE EVIDENCE
In four related points of error, appellant contends the evidence is insufficient
to support his conviction. Specifically, appellant argues that there is insufficient
evidence to support his conviction, either as a principal, party, or co-conspirator,
“under any of the theories of murder submitted to the jury, namely intentional
murder, serious bodily injury murder, or felony murder.” Appellant also argues
6 that the evidence is legally and factually insufficient to support the jury’s negative
finding on his affirmative defense of duress.
Standard of Review
We review a challenge to the legal sufficiency of the evidence under the
standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S. Ct. 2781,
2788–89 (1979). See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.
Crim. App. 2010)). Under the Jackson standard, evidence is insufficient to support
a conviction if, considering all the record evidence in the light most favorable to
the verdict, no rational factfinder could have found that each essential element of
the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S.
at 317–19, 99 S. Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
App. 2009). Evidence is insufficient under this standard in four circumstances: (1)
the record contains no evidence probative of an element of the offense; (2) the
record contains a mere “modicum” of evidence probative of an element of the
offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the
acts alleged do not constitute the criminal offense charged. See Jackson, 443 U.S.
at 314, 318 n. 11, 320, 99 S. Ct. at 2786, 2789 & n. 11; Laster, 275 S.W.3d at 518;
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
7 The sufficiency-of-the-evidence standard gives full play to the responsibility
of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007); see also Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008)
(stating jury is sole judge of credibility of witnesses and weight to give their
testimony). An appellate court presumes that the factfinder resolved any conflicts
in the evidence in favor of the verdict and defers to that resolution, provided that
the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; see also
Clayton, 235 S.W.3d at 778 (reviewing court must “presume that the factfinder
resolved the conflicts in favor of the prosecution and therefore defer to that
determination”).
In viewing the record, direct and circumstantial evidence are treated equally;
circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.
Clayton, 235 S.W.3d at 778. In determining the sufficiency of the evidence, a
reviewing court examines “whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the
light most favorable to the verdict.” Id. (quoting Hooper v. State, 214 S.W.3d 9,
16–17 (Tex. Crim. App. 2007)). Finally, the “cumulative force” of all the
8 circumstantial evidence can be sufficient for a jury to find the accused guilty
beyond a reasonable doubt, even if every fact does not “point directly and
independently to the guilt of the accused.” See Powell v. State, 194 S.W.3d 503,
507 (Tex. Crim. App. 2006).
Applicable Law
A person commits murder if he intentionally or knowingly causes the death
of another person or intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of another. TEX. PENAL CODE
§ 19.02(b)(1),(2) (Vernon 2011). A person commits the offense of felony murder
if that person commits or attempts to commit a felony, other than manslaughter,
and in the course of and in furtherance of the commission or attempt, or in
immediate flight from the commission or attempt, that person commits or attempts
to commit an act clearly dangerous to human life that causes the death of an
individual. TEX. PENAL CODE ANN. § 19.02(b)(3) (Vernon 2011); see White v.
State, 208 S.W.3d 467, 467 (Tex. Crim. App. 2006). Here, the underlying felony
alleged was robbery. A person commits robbery if, in the course of committing
theft, and with intent to obtain or maintain control of property, he intentionally or
knowingly places another in fear of imminent bodily injury or death. TEX. PENAL
CODE ANN. § 29.02(a) (Vernon 2011). When, as here, a general verdict is returned
and alternate theories of liability alleged, we may uphold the conviction if the
9 evidence is sufficient under any of the theories submitted. See Guevara v. State,
152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Rabbani v. State, 847 S.W.2d
555, 558 (Tex. Crim. App. 1992)).
Rejection of Duress Affirmative Offense
Because most of appellant’s arguments regarding the sufficiency of the
evidence rest on his defense of duress, we address that issue first.
The trial court instructed the jury on appellant’s affirmative defense of
duress. It is an affirmative defense to prosecution that the defendant engaged in
the proscribed conduct because he was compelled to do so by threat of imminent
death or serious bodily injury to himself or another. TEX. PENAL CODE ANN. §
8.05(a) (Vernon 2011). However, to prevail on the affirmative defense of duress,
appellant was required to show by a preponderance of the evidence that he was
compelled to engage in the proscribed conduct by threat of imminent death or
serious bodily injury to himself or another. Id. § 2.04(d); see Williams v. State, 911
S.W.2d 191, 195 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d). Compulsion
exists only if the force or threat of force would render a person of reasonable
firmness incapable of resisting the pressure. See TEX. PENAL CODE ANN. § 8.05(c)
(Vernon 2011); Shaw v. State, 874 S.W.2d 115, 119 (Tex. App.—Austin 1994, pet.
ref’d). The defense of duress is unavailable if the defendant intentionally,
10 knowingly, or recklessly placed himself in a situation in which it was probable that
he would be subjected to compulsion. TEX. PENAL CODE ANN. § 8.05(d).
Legal Sufficiency
When an appellant asserts that there is no evidence to support an adverse
finding on which he had the burden of proof, we construe the issue as asserting that
the contrary position was established as a matter of law. Matlock v. State, No. PD-
0308-12, 2013 WL 690854, at *3 (Tex. Crim. App. Feb. 27, 2013). First, we
search the record for evidence favorable to the finding, disregarding all contrary
evidence unless a reasonable factfinder could not. Id. If we find no evidence
supporting the finding, we then determine whether the contrary position was
established as a matter of law. Id.
Here, there was legally sufficient evidence to support the jury’s negative
finding on appellant’s affirmative defense of duress. By appellant’s own statement
to Miller, he shot Brown several times with a .40 caliber gun. The ballistics tests
confirm that this weapon was used to shoot Brown. Appellant was still in
possession of that same weapon several months later, when, by his own admission
he gave it to Cyres so that he would “not get in trouble.” From this, the jury could
have concluded that the gun belonged to appellant, not Israel Hudgins as appellant
claimed. Also, appellant’s fingerprint was found on a shoe box at Brown’s
apartment in an area of the apartment that, to police, looked like it had been
11 rummaged through while appellant was looking for something. The jury could
also have reasonably concluded that by participating in a drug deal at best, or a
robbery at worst, appellant placed himself in a situation in which it was likely that
he would be subject to compulsion by his co-actors. There was also evidence that,
rather than go to police and claim compulsion, appellant fled the state.
Because there was some evidence supporting the jury’s failure to find
duress, we need not determine whether he established the defense as a matter of
law. Id. at *6. Because appellant did not conclusively prove his affirmative
defense under the legal sufficiency standard set forth in Matlock, he is not entitled
to an acquittal. Id. at *7.
Factual Sufficiency
“A criminal defendant might also raise a factual-sufficiency challenge to the
jury’s adverse finding on his affirmative defense.” Id. at *4. In reviewing such a
challenge, we view the entirety of the evidence in a neutral light, but do not usurp
the function of the jury by substituting our own judgment in place of the jury’s
assessment of the weight and credibility of the witnesses’ testimony. Id. We may
sustain a defendant’s factual-sufficiency claim only if, after setting out the relevant
evidence and explaining precisely how the contrary evidence greatly outweighs the
evidence supporting the verdict, we clearly state why the verdict is so much against
12 the great weight of the evidence as to be manifestly unjust, conscience-shocking,
or clearly biased. Id.
Appellant’s duress defense is based on two pieces of evidence: (1) his
November 3, 2008 interview with Officer Miller, and (2) Darryl Pierre’s testimony
at trial. We examine each to determine whether together this contrary evidence so
greatly outweighs the verdict such that the verdict is manifestly unjust.
When Miller interviewed appellant on November 3, 2008 in New Orleans,
appellant told Miller the following:
Me and [Hudgins] (inaudible) went up there, we scoop like a (inaudible) a quarter of crack and we left. Second time we came back, me and [Hudgins] walks in, [Brown] was closing the door, [Hudgins] shot him in his neck. .357. He gave me a .40 he told me if I ain’t shoot [Brown] that he was going to shoot me, so I pulled the trigger. Shot two times. After that I just stood there, [Hudgins] ran in the back to go look for and search for money and drugs. He told me “Bitch, you better do something!” so I was scared so best thing I can come up to do is to touch something that was going to hold, you know that was, so the detective could find me. That’s what I did.
The jury, as fact-finder, determines the credibility of the witnesses and what
weight to give their testimony. See Williams v. State, 235 S.W.3d 742, 750 (Tex.
Crim. App. 2007). The jury may choose to believe all, some, or none of the
testimony presented. Hughes v. State, 897 S.W.2d 285, 289–90 (Tex. Crim. App.
1994).
Here, it was the jury’s prerogative to believe appellant’s statement that he
shot Brown with a .40 caliber gun, but disbelieve his statement that Hudgins gave 13 him the gun and made him shoot. According to appellant’s statement, Hudgins
shot Brown, then gave appellant a gun and forced him to shoot also. However,
witnesses testified that they heard three shots fired one right after the other with no
break between the first shot and the second and third shots. The jury could also
have disbelieved appellant’s statement that he intentionally left his fingerprint so
that police could find him, especially in light of evidence that appellant made every
effort to avoid police by first giving his weapon to Cyres when approached by
police on September 5, 2008, and then, later, by fleeing to New Orleans.
At trial, Darryl Pierre testified that on the day of the murder, Hudgins and
appellant picked him up to go “score some drugs.” He knew that Hudgins had a
gun. While he sat in the car listening to music, Hudgins and appellant went into the
drug dealer’s apartment. When they came out, Hudgins got in the passenger seat,
threw a .9mm gun in Pierre’s lap and said, “Come on, let’s go.” Pierre testified
that Hudgins told him that “he shot the guy in the neck with the .357 and gave
[appellant] a .40 and told him if he don’t shoot him, he was going to shoot him.”
However, on cross-examination, Pierre admitted that he had made an earlier
inconsistent statement to police. In his previous statement, Pierre told police that it
was appellant’s idea to go “hit a lick,” which meant they were going to rob
someone. Pierre told police it was appellant’s idea to rob Brown because appellant
knew he had a lot of money. Pierre told Officer Miller that when appellant came
14 back to the car, he said that he had gotten $1000, but that he had to shoot Brown
because if they did not kill him, Brown “would have come looking for us.”
At trial, Pierre testified that he lied to police in his first statement because he
believed that appellant was responsible for him being arrested and sent to jail for
the same offense. However, he claimed that he was telling the truth at trial because
he now believed that Hudgins was the person responsible for sending him to jail.
He also testified that it was against his “code” to be a snitch.
Again, it was the jury’s prerogative to disbelieve Pierre’s trial testimony,
especially in light of his inconsistent prior statement to police, in which Pierre told
police that the robbery was appellant’s idea and that appellant admitted shooting
Brown so that he would not come looking for them. The jury could also have
considered Pierre’s testimony that it was against his code to be a snitch, and
concluded that he changed his testimony at trial from that of his prior statement to
police to avoid being labeled a “snitch.”
After reviewing all of the evidence, we cannot conclude that the evidence
supporting appellant’s affirmative defense greatly outweighs the State’s contrary
evidence.
Accordingly, we hold that the evidence is legally and factually sufficient to
support the jury’s negative finding on the issue of duress. We overrule points of
error three and four.
15 Guilt as Party or Co-Conspirator
The jury was instructed that it could find appellant guilty either as a
principal or a party to the offense. A person is criminally responsible as a party to
the offense if it is committed by the actor’s own conduct, by the conduct of another
for which he is criminally responsible, or by both. TEX. PENAL CODE ANN. §
7.01(a) (Vernon 2011). A person is criminally responsible for an offense
committed by another if, “acting with 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.” Id. § 7.02(a)(2).
To establish guilt under the law of parties, the evidence must show that, at
the time of the offense, the parties were acting together, each contributing some
part towards the execution of their common purpose. See Ransom v. State, 920
S.W.2d 288, 302 (Tex. Crim. App. 1994); Ahrens v. State, 43 S.W.3d 630, 633–34
(Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). In determining whether a
defendant participated in an offense as a party, the fact finder may examine the
events occurring before, during, and after the commission of the offense and may
rely on actions of the defendant that show an understanding and common design to
commit the offense. Ransom, 920 S.W.2d at 302; Ahrens, 43 S.W.3d at 634. Each
fact need not point directly and independently to the guilt of the defendant, as long
as the cumulative effect of all the incriminating facts are sufficient to support the
16 conviction. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004); see
Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). Circumstantial
evidence may also prove party status. Ransom, 920 S.W.2d at 302.
Under the law of parties, a person may also be held criminally responsible
for the conduct of another who is acting as a co-conspirator. See TEX. PENAL CODE
ANN. § 7.02 (Vernon 2011). A person is guilty as a party to a felony offense
committed by a co-conspirator if (1) the offense committed by the co-conspirator is
a felony, (2) the co-conspirator committed the offense during an attempt to carry
out the conspiracy, (3) the co-conspirator committed the offense in furtherance of
the unlawful purpose of the conspiracy, and (4) the defendant should have
anticipated that the offense would result from the carrying out of the conspiracy.
See id.; Love v. State, 199 S.W.3d 447, 452 (Tex. App.—Houston [1st Dist.] 2006,
pet. ref’d). A criminal conspiracy forms when two or more persons agree to engage
in conduct that would constitute a felony so long as the agreeing parties actually
intend that a felony be committed and one of them later commits an overt act in
pursuance of their agreement. TEX. PENAL CODE ANN. § 15.02(a) (Vernon 2011).
The law of parties requires proof that the other person committed the predicate
offense for which the defendant is held vicariously responsible. See id. § 7.02(a)-
(b).
17 Appellant contends that he is not guilty as either a party or a co-conspirator
because he “was present only to assist in the purchase of cocaine when Hudgins
unexpectedly shot the complainant in the neck causing his death,” and that he,
appellant, “then shot the complainant in both arms when Hudgins threatened to
shoot him.”
However, the jury could have concluded that this was planned as a robbery,
not merely a drug purchase. According to Pierre’s testimony on direct, Hudgins
had two guns when the men went to Brown’s apartment. When asked if Hudgins
had shown the guns to appellant, Pierre replied, “yeah, he got them. He handed—I
knew he put one on him. I didn’t know about the other one.” Appellant admitted
shooting Brown, along with Hudgins, and, as stated above, there is sufficient
evidence to support the jury’s negative finding of duress.
Appellant’s fingerprint was found on a shoebox in the Brown’s bedroom,
indicating that he had been rummaging around or ransacking the area while
looking for something to steal. The jury could have disbelieved appellant’s
testimony that he left the fingerprint on purpose so that the police could find him,
especially in light of evidence that appellant did everything possible to avoid
detection by telling Pierre to slow down or he would make the car “hot” as they
made their escape, giving the gun used in the murder to Cyres to avoid getting “in
trouble,” and fleeing to New Orleans.
18 Also, in his November 21, 2008 statement, Pierre told police that it had been
appellant’s idea to rob Brown because he knew that Brown had a lot of money.
And, in fact, money and a gun were taken from Brown’s apartment.
Several months after the offense, appellant still possessed the gun he used to
shoot Brown. He admitted that he gave the gun to Cyres so that he, appellant,
would not get in trouble.
Robbery at gunpoint is sufficient, standing alone, to make the shooting an
act that should have been anticipated, and, when an individual is shot, it must also
be anticipated that the person may be injured or die as a result of the shots. See
Williams v. State, 974 S.W.2d 324, 330 (Tex. App.—San Antonio 1998, pet. ref’d)
(holding that killing during pawnshop robbery was foreseeable where at least one
conspirator was present with firearm). Texas courts have consistently held that
when a murder occurs in the course of a conspiracy to commit robbery, all parties
to the robbery are guilty of murder. See Green v. State, 682 S.W.2d 271, 285–86
(Tex. Crim. App. 1984); Longoria v. State, 154 S.W.3d 747, 755 (Tex. App.—
Houston [14th Dist.] 2004, pet. ref’d); see also Ruis v. State, 579 S.W.2d 206, 209
(Tex. Crim. App. 1979); King v. State, 502 S.W.2d 795, 797–98 (Tex. Crim. App.
1974). Courts have also consistently held that conspirators should anticipate that a
murder could occur in the course of the commission of a robbery when they have
knowledge that a co-conspirator is carrying a firearm. See Love, 199 S.W.3d at
19 453; Longoria, 154 S.W.3d at 756–57. “Evidence that a defendant knew his co-
conspirators might use guns in the course of the robbery can be sufficient to
demonstrate that the defendant should have anticipated the possibility of murder
occurring during the course of the robbery.” Love, 199 S.W.3d at 453.
Based on the evidence presented at trial, the jury could have rationally
concluded that appellant, Hudgins, and Pierre had planned to rob Brown, and that,
all involved knew that Hudgins at least was armed. Therefore, under the case law
cited above, the evidence is sufficient to convict appellant of felony murder as
either a party or a co-conspirator.
We overrule points of error one and two.
IMPROPER JURY ARGUMENT AT PUNISHMENT
In points of error five through eight, appellant contends that he is entitled to
a new punishment hearing because of improper jury argument by the prosecutor at
the punishment phase of the trial.
Permissible jury argument generally falls into one of four areas: (1)
summation of the evidence; (2) reasonable deduction from the evidence; (3) an
answer to the argument of opposing counsel; or (4) a plea for law
enforcement. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App.
2010); Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000).
20 We review a trial court’s ruling on a motion for mistrial for an abuse of
discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. 2004); Hunt, 2012
WL 858613, at *2. When the refusal to grant a mistrial follows an objection
for improper jury argument, we balance three factors to determine whether the trial
court abused its discretion: (1) the severity of the misconduct (prejudicial effect),
(2) curative measures, and (3) the certainty of conviction or punishment absent the
misconduct. Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App.
2011); Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) ; Hunt, 2012 WL 858613, at *2. Only in extreme circumstances,
when the prejudice caused by the improper argument is incurable, that is, “so
prejudicial that expenditure of further time and expense would be wasteful and
futile,” will a mistrial be required. Hawkins, 135 S.W.3d at 77; see Archie, 340
S.W.3d 739 (“Mistrial is . . . appropriate . . . when . . . the objectionable events ‘are
so emotionally inflammatory that curative instructions are not likely to prevent the
jury from being unfairly prejudiced against the defendant.’”) (citing Young v.
State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004)). In most cases, an instruction to
disregard will cure the alleged harm. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.
Crim. App. 2000). This is so because we generally presume the trial court’s
instruction will be obeyed by the jury. Colburn v. State, 966 S.W.2d 511, 520 (Tex.
Crim. App. 1998).
21 Statement Regarding Prosecutor’s Plea for Punishment Outside the Range
Appellant complains about four statements by the prosecutor. We will
address each respectively.
In his closing argument, defense counsel asked the jury to give appellant “a
chance because he has apologized to the [complainant’s] family and because he
has a life that he also can do something with and you consider that.” The
prosecutor responded by arguing:
[T]he bottom line in this case, folks, is our community in 2005 opened our hearts, and our souls, and our wallets; and in exchange, this defendant opened fire. That’s the bottom line in this case. And you want to give him a chance? I would—I wouldn’t let him out in a million years.
Defense counsel objected to “improper jury argument,” the trial court sustained the
objection, but refused defense counsel’s request for an instruction to disregard.
Having obtained an adverse ruling, defense counsel did not further request a
mistrial.
In point of error five, appellant argues that the argument was improper
because it injected the prosecutor’s personal opinion on punishment, which he then
invited the jury to adopt when he further argued that, “You shouldn’t let him out in
a million years.”
Here, the prejudicial effect of the argument was not great. No reasonable
argument can be made that the jury believed that a “million year” sentence was a
22 possibility. In fact, the prosecutor made it clear that he was seeking a life sentence,
which was in the possible range of punishment. The State’s use of hyperbole in
attempting to make its plea for law enforcement was not unduly prejudicial
because jurors are capable of understanding rhetorical hyperbole for what it
is. Erlandson v. State, 763 S.W.2d 845, 855 (Tex. App.—Houston [14th Dist.]
1988, pet. ref’d).
Although no curative measures were taken, as we have already stated, the
jury was capable of understanding that the prosecutor was not, in fact, asking for a
sentence outside the range, but was merely asking for a lengthy sentence.
Finally, the certainty of appellant’s punishment was not affected by the
argument. Appellant admitted shooting Brown. There was also punishment
evidence that appellant had participated in an aggravated robbery and had also
discharged his weapon at the victims in that case. And, despite the prosecutor’s
pleas for a life sentence, the jury assessed punishment at 53 years’ confinement,
which was in the middle of the punishment range.
Accordingly, the trial court did not err by denying appellant’s request for an
instruction to disregard. We overrule point of error five.
Statements Regarding Argument Outside the Record
During closing argument at punishment, the prosecutor argued that “there’s
a lot of people in jail that try to right the wrongs they’ve done.” He also argued
23 “what if that bullet didn’t go through a wall and it went through a window and the
Lyn-Mar Apartments were facing the other way? Or through the defendant’s
reckless shots, went through that area, through that door, and hit a child playing?”
Defense counsel objected that both statements were outside the record. The
trial court sustained the objections, instructed the jury to disregard the statements,
but denied defense counsel’s request for a mistrial.
The first statement about people in jail trying to right their wrongs, while
outside the record, does not inject facts that are harmful or even relevant to the
defendant. The second comment, though speculative and outside the record, only
points out what is already obvious to most jurors—that shootings in public places
can sometimes injure innocent people, even though that was not the case here. The
effects of these remarks were not so prejudicial that the instruction to disregard
was ineffective. See Archie, 340 S.W.3d 739 (“Mistrial is . . . appropriate . . .
when . . . the objectionable events ‘are so emotionally inflammatory that curative
instructions are not likely to prevent the jury from being unfairly prejudiced
against the defendant.’”) (citing Young, 137 S.W.3d at 71). And, for the same
reasons given in our discussion of point of error five, the certainty of his
punishment was not affected by any argument outside the record by the prosecutor.
Accordingly, we overrule issues six and seven.
24 Statement Striking at Defendant over Counsel’s Shoulders
After appellant told the jury that he would not “let appellant out in a million
years,” he followed up with the statement:
You shouldn’t let him out in a million years. [Defense counsel] got up here because he’s afraid and he knows what this defendant needs, what he deserves.
Defense counsel objected that the prosecutor was “attacking the defendant by
attacking the defendant’s attorney saying I’m afraid of anything.” The trial court
sustained the objection, instructed the jury to disregard, but denied defense
counsel’s request for a mistrial.
In point of error eight, appellant argues that this argument strikes at
appellant over the shoulders of counsel and implies that counsel was afraid of
appellant and knew what punishment he needed and deserved.
When a prosecutor makes uninvited and unsubstantiated accusations of
improper conduct directed toward a defendant’s attorney, in an attempt to
prejudice the jury against the defendant, courts refer to this as striking a defendant
over the shoulders of his counsel. Phillips v. State, 130 S.W.3d 343, 355 (Tex.
App.—Houston [14th Dist.] 2004, pet. ref’d) (op. on reh’g), aff'd, 193 S.W.3d 904
(Tex. Crim. App. 2006). A prosecutor risks improperly striking at a defendant
over the shoulders of counsel when the argument refers to defense counsel
personally and when the argument explicitly impugns defense counsel’s
25 character. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.
1998); Davis, 268 S.W.3d at 712.
Here, the statement that defense counsel was “afraid” and knew what the
defendant “needs” and “deserves,” does not allege improper conduct by the
attorney or impugn his character. In fact, it is not clear what the prosecutor was
saying that the defense counsel was afraid of. It could be, as the State argues, that
the prosecutor was trying to say the defense counsel was afraid that his client was
going to get a lengthy sentence because that is what he deserved.
Even if we agreed that the comment was a strike at the defendant over the
shoulders of counsel, the statement was not so extreme or manifestly improper that
it could not be cured by an instruction to disregard. See Wesbrook, 29 S.W.3d at
115 (holding that prosecutor’s comment that defendant had to come up two
different stories, “One to [the police] and one to you” was not so flagrant that
instruction to disregard was ineffective); Tilbury v. State, 890 S.W.2d 219, 223
(Tex. App.—Fort Worth 1994, no pet.) (holding that prosecutor’s comment that
defense counsel tried to “muddy the waters” was improper as striking defendant
over shoulder of counsel, but trial court’s instruction to disregard cured error).
And, for the same reasons given in our discussion of point of error five, six, and
seven, the certainty of appellant’s punishment was not affected by any argument
striking at him over the shoulders of counsel
26 Accordingly, we overrule point of error eight.
EXTRANEOUS OFFENSE
In point of error nine, appellant contends the trial court erred in denying his
motion for mistrial after a prosecution witness testified that the pistol appellant
used in this murder was also involved in a shooting on March 14, 2010.
During Officer Miller’s testimony, the following exchange took place:
[Prosecutor]: Now, this murder happens on March 9th of 2008. Can you tell us how long it was until you got a match on the fingerprint?
[Miller]: It was July 30th, 2008.
[Prosecutor]: So, we’ve been---March, April, May, June. You said July?
[Miller]: July 30th, 2008. That’s correct.
[Prosecutor]: So, five months later you had the fingerprint match. When did the gun get recovered?
[Miller]: March 14th, 2008.
[Prosecutor]: So, that was just a few days [after the murder]. What took—
[Miller]: I’m sorry. The shooting involving the gun happened March 14th, 2008; and the gun was recovered—
[Prosecutor]: No, just when the gun—
[Defense Counsel]: I’m sorry, Judge. I’m going to object. May we approach, please?
[Trial Court]: Okay.
27 Defense counsel objected that Miller’s testimony opened an extraneous offense.
The trial court sustained appellant’s objection, instructed the jury to disregard
Miller’s comment, but denied appellant’s motion for a mistrial.
We review a trial court’s ruling on a motion for mistrial for an abuse of
discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wead v.
State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). An appellate court must
uphold the trial court’s ruling if it was within the zone of reasonable disagreement.
Wead, 129 S.W.3d at 129. A mistrial is required only in extreme circumstances
where the prejudice is incurable. Archie, 221 S.W.3d at 699. A mistrial is the trial
court’s remedy for improper conduct that is so prejudicial that expenditure of
further time and expense would be wasteful and futile. Hawkins, 135 S.W.3d at
77.
Appellant argues that a mistrial was required because “it left the clear
impression that the appellant was involved in the shooting, and that the shooting
was without provocation or explanation.” It is well established that testimony
referring to or implying extraneous offenses can be rendered harmless by an
instruction to disregard unless they are so clearly calculated to inflame the minds
of the jury and are of such a nature as to suggest the impossibility of withdrawing
the impression produced. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.
1992). Whether a witness’s improper reference to an extraneous offense warrants a
28 mistrial depends on the particular facts of the case. Ladd v. State, 3 S.W.3d 547,
567 (Tex. Crim. App. 1999). Because a mistrial is an extreme remedy, a trial court
should declare a mistrial only when the error or misconduct is highly prejudicial
and incurable. See Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003);
Hudson v. State, 179 S.W.3d 731, 738 (Tex. App.—Houston [14th Dist.] 2005, no
pet.).
We conclude that Miller’s uninvited reference to a shooting involving the
same gun used in this case was not so inflammatory as to undermine the efficacy of
a motion to disregard. The State did not intentionally elicit the information; the
prosecutor’s question was about when the gun was recovered, not whether it had
been involved in another crime. And, Miller did not state that appellant had used
the gun in another shooting; he mentioned only that the gun was involved in a
shooting. In fact, in this case the same inference could be made that Hudgins had
been involved in another shooting, because, according to appellant, the .40 gun
was not his, but Hudgins’s. Finally, we note that the court’s charge instructed the
jury that it could consider extraneous offense evidence only if it believed beyond a
reasonable doubt that appellant committed such an act, and then only in
determining motive, opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident. We presume the jury followed both the instruction
29 to disregard and the charge. See Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim.
App. 1996).
Accordingly, we overrule point of error nine.
PROSECUTORIAL MISCONDUCT
In point of error ten, appellant contends that he was denied due process of
law because of prosecutorial misconduct. Specifically, appellant complains that
the prosecutor (1) conducted an improper opening statement because it was “not a
roadmap of the evidence to follow, but a final argument;” (2) erroneously solicited
hearsay testimony; (3) erroneously solicited extraneous offense testimony; (4)
mislead the jury regarding why appellant was arrested in New Orleans; (5)
improperly impeached Darryl Pierre; and (6) conducted an improper closing
argument. Appellant argued that, because it cannot be said beyond a reasonable
doubt that the prosecutor’s misconduct did not contribute to his conviction or
punishment, this Court should either reverse his conviction, or grant a new
punishment hearing.”
Some of these complaints were made and sustained at trial, and subsequently
addressed here on appeal. However, appellant never made a due-process objection
or indicated to the trial court that he believed that cumulative effect of the
prosecutor’s actions had deprived him of a fair trial. There is nothing in the record
to show that the trial court was aware that appellant was making a due process
30 claim. Thus, his due process complaint based on prosecutorial misconduct is
waived. See Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (holding
that evidentiary objections at trial did not present trial court with opportunity to
rule on due process claim raised on appeal, thus due process claim was waived).
Accordingly, we overrule point of error ten.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).