Victor Emanuel McGowan v. State

• Court: Court of Appeals of Texas
• Decided: July 23, 2003
• Docket: 10-02-00065-CR
• Status: Published

Opinion

Victor Emanuel McGowan v. State

IN THE

TENTH COURT OF APPEALS

No. 10-02-065-CR

     VICTOR EMANUEL McGOWAN,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 28,761-361

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      A jury convicted Victor Emanuel McGowan of being a felon in possession of a firearm and assessed his punishment at twenty years’ imprisonment.

      McGowan’s attorney has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967). Counsel notified McGowan that he had filed an Anders brief, sent him a copy of the brief, informed him that he had the right to file a pro se brief or other response, and told him how to obtain a copy of the record for preparation of a brief or response. See Sowels v. State, 45 S.W.3d 690, 693 (Tex. App.—Waco 2001, no pet.). Although the Clerk of this Court also notified McGowan that he could review the record and file a brief or response, he has not done so.

POTENTIAL SOURCES OF ERROR

IDENTIFIED BY COUNSEL

      McGowan’s counsel has identified six potential sources of error: (1) whether the indictment is adequate; (2) whether the State presented legally sufficient evidence; (3) whether the trial court improperly ruled on any of McGowan’s pretrial motions; (4) whether the trial court abused its discretion by overruling any of McGowan’s evidentiary objections; (5) whether the prosecutor made improper jury argument at guilt-innocence or punishment; and (6) whether the jury assessed punishment within the proper range. Counsel then concludes that the appeal presents no issues of arguable merit. This Court has conducted an independent review of the record and has reached the same conclusion. See Sowels, 45 S.W.3d at 691-92.

      The indictment adequately alleges the constituent elements of the offense. See Tex. Pen. Code Ann. § 46.04(a)(1) (Vernon 2003); Burleson v. State, 935 S.W.2d 526, 528 (Tex. App.—Waco 1996, no pet.). Thus, it was sufficient to vest the trial court with jurisdiction. Duron v. State, 956 S.W.2d 547, 549-51 (Tex. Crim. App. 1997). Moreover, McGowan made no pretrial objections to the indictment. Therefore, he forfeited any right to challenge the indictment on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2003); Tamez v. State, 27 S.W.3d 668, 670 (Tex. App.—Waco 2000, pet. ref’d).

      The State presented three witnesses who testified that they saw McGowan brandishing a handgun on the occasion in question. McGowan stipulated that he had been previously convicted of a felony. A parole officer testified that McGowan had been paroled from prison less than five years before the occasion in question. Thus, the record contains legally sufficient evidence to support the conviction. See Burleson, 935 S.W.2d at 528 (setting out elements of offense); see also Taulung v. State, 979 S.W.2d 854, 857 (Tex. App.—Waco 1998, no pet.) (legally sufficiency issue can be presented in an Anders brief as a “frivolous” issue).

      The trial court granted McGowan’s only pretrial motion. Thus, he has no basis on which to complain of any pretrial rulings.

      The parties asserted very few objections during the course of the trial. The court’s rulings on these objections do not indicate an abuse of discretion.

      McGowan’s counsel made no objections to the State’s closing argument at guilt-innocence or at punishment. Thus, McGowan has failed to preserve any error in this regard. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002).

      McGowan pleaded “true” to an enhancement allegation. Therefore, the sentence lies within the range provided for the offense. See Tex. Pen. Code Ann. §§ 12.33, 12.42(a)(3) (Vernon 2003); Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, sec. 46.04(b), 1993 Tex. Gen. Laws 3586, 3688 (amended 2001) (current version at Tex. Pen. Code Ann. § 46.04(e) (Vernon 2003)).

OTHER POTENTIAL SOURCES OF ERROR

      The prosecutor discussed several details of McGowan’s prior felony conviction near the beginning of her voir dire examination:

We have to prove the Defendant . . . was a felon. Specifically, he was previously convicted of Possession of a Controlled Substance on August the 27th, 1991; and a conviction—he’s still convicted, meaning he has not been released from parole within five years. And I’ll explain that later.

McGowan’s counsel did not object to this statement.

      Settled law establishes that “a prosecutor may inform the jury panel of the range of punishment applicable if the State were to prove a prior conviction for enhancement purposes, but it may not inform the jury of any of the specific allegations contained in the enhancement paragraph of a particular defendant’s indictment.” Frausto v. State, 642 S.W.2d 506, 509 (Tex. Crim. App. [Panel Op.] 1982); accord Holloway v. State, 695 S.W.2d 112, 120 (Tex. App.—Fort Worth 1985), aff’d, 751 S.W.2d 866 (Tex. Crim. App. 1988); McGee v. State, 689 S.W.2d 915, 918-19 (Tex. App.—Houston [14th Dist.] 1985, pet. ref’d). However, a defendant forfeits the right to complain of the prosecutor’s conduct in this regard if the defendant fails to object. See Tex. R. App. P. 33.1(a)(1); McGee, 689 S.W.2d at 919.

      At trial, McGowan stipulated that he had been previously convicted as alleged in the indictment. McGowan was apparently attempting to follow the then-somewhat-recent decision of the Court of Criminal Appeals in Tamez v. State. 11 S.W.3d 198 (Tex. Crim. App. 2000). Despite the stipulation however, the State introduced a copy of the judgment of conviction in evidence. Tamez was not clear on the issue of whether this is proper. However, the Court of Criminal Appeals settled this issue two years later in Robles v. State. 85 S.W.3d 211 (Tex. Crim. App. 2002). In Robles, the Court held that the State may not introduce copies of such judgments in evidence if the defendant has stipulated to their existence. Id. at 213-14. However, McGowan did not object to the admission of the judgment in evidence. Thus, this potential issue was not preserved for appellate review. See Tex. R. App. P. 33.1(a)(1).

      Perhaps it could be argued that McGowan received ineffective assistance of counsel with regard to counsel’s failure to object to the voir dire statement noted above or to the admission in evidence of the judgment. However, because the voir dire issue was an isolated event, because the law under Tamez regarding the admissibility of the judgment was unclear at the time of trial, and because “the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions,” we conclude that an ineffective assistance claim would not present an issue “which might arguably support an appeal.” See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (rejecting ineffective assistance claim because “the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions”) (quoting Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001)); Sowels, 45 S.W.3d at 692 (Anders requires review of record for issues “which might arguably support an appeal”); Hardin v. State, 951 S.W.2d 208, 211-12 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (counsel’s failure to object to State’s improper reading of enhancement allegations at guilt-innocence not ineffective assistance); McGee, 689 S.W.2d at 922 (counsel’s failure to object to State’s improper voir dire regarding prior convictions not ineffective assistance).

CONCLUSION

      We agree with counsel that McGowan’s appeal presents no issues “which might arguably support an appeal.” Accordingly, we affirm the judgment. Counsel must advise McGowan of our decision and of his right to file a petition for discretionary review. Sowels, 45 S.W.3d at 694.

                                                                   REX D. DAVIS

                                                                   Chief Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed July 23, 2003

Do not publish

[CR25]

ht: normal'>IN THE

TENTH COURT OF APPEALS

 

No. 10-03-00286-CR

Gregory Barnett Griggs,

  Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 28,466

DISSENTING Opinion

          The majority grasps onto a new statement from Young and drops its prior discussion of Lankston.  Young v. State, 137 S.W.3d 65 (Tex. Crim. App. 2004); Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992).  If the majority would embrace the entirety of what the court said in Young, there is no doubt in my mind that this case would not be reversed.  The majority, however, fails to perform a proper analysis of the manner in which the evidence was admitted and the timing of the motions made by the defense.

          So, if the reader will indulge me, only for a little while, in the second portion of this dissenting opinion I will attempt to explain where the majority errs.  But first I must give the procedural history for the sake of those that follow after us.

Procedural Prelude

In the past we have withdrawn so few opinions that no particular problem was created if the opinion was withdrawn by an order separate from the new opinion being issued.  The problem is that over the past year we have withdrawn numerous opinions, with and without motions for rehearing, and when on motion for rehearing, with and without requesting responses.  Issuing multiple opinions in the same appeal creates confusion.  A person can hold in their hands two opinions from this Court, both certified by the clerk as authentic, which are not the same.  Our past practice has been that the latter normally does not reference the existence of the earlier opinion that is being withdrawn.

          Our past practice did not present a problem when the issuance of another opinion in the same case was rarely done.  At least the problem was manageable.  But due to the greatly increased frequency of the majority issuing multiple opinions, I thought it was an appropriate time to adopt the procedure utilized by the Texas Supreme Court; to include the order, and explanation if needed, withdrawing the prior opinion as the first paragraph of the new opinion.  See e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex. 2000).

          This is a simple procedure for the convenience of anyone reading the opinions to understand and easily determine which opinion is the Court’s final opinion.  This process also allows a researcher, interested in the ultimate disposition, to easily track backwards, if necessary, to see the development of the final opinion.  Because the majority refuses to provide that information in its opinion, I do so in this dissenting opinion.

History of This Court’s Opinion

          The State’s Motion for rehearing is denied.  The Court’s opinion reversing the trial court’s judgment, the judgment, and Chief Justice Gray’s dissenting opinion, all dated February 2, 2005, are withdrawn and the Court’s opinion, Chief Justice Gray’s dissenting opinion, and the judgment of this date are substituted therefore.

      With these comments regarding the history of this appeal, I now proceed to the substance of my dissenting opinion.

Substantive Part

Dissenting Opinion

          We must first address whether an issue is properly preserved for our review.  In its earlier opinion the majority determined the issue was preserved and relied upon Langston as follows:

Under these circumstances, Griggs’s actions were sufficient to preserve the complaint about the mistrial ruling.  See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (“all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial court judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.”)

Griggs v. State, No. 10-03-00286-CR, 2005 Tex. App. LEXIS 866, *8 (Tex. App.—Waco Feb. 2, 2005) (withdrawn, April 13, 2005).  In my original dissent, I pointed out that although the majority quoted Lankston, they then ignored it.

          The majority’s earlier opinion triggered two responses; one predictable, and the other very rare.  In a predictable response to the opinion, the district attorney filed a motion for rehearing.  The district attorney, in an effort to refocus the majority on the operative part of Lankston, forcefully argued that the issue was not preserved for our review because the objection and motion for mistrial were not made “at a time when the trial court [was] in a proper position to do something about it.”  The district attorney pointed out the delay in making the motion for mistrial, which was made long after and separated by time and events from the acts about which complaint was made.

          And in a rare move, the second response to the majority’s earlier opinion was that the State Prosecuting Attorney submitted a friend-of-the-court brief in support of the district attorney’s motion for rehearing.  In addition to supporting the district attorney’s argument, the State Prosecuting Attorney also argued that the majority’s characterization of the purpose for requiring a timely objection was not accurate.  The State Prosecuting Attorney pointed out that if

…the defendant timely objected when the evidence was offered, then any error or prejudice to the defendant could have been avoided by the trial court having sustained the objection and having not allowed the question to be asked.  Or, in some cases, any prejudicial effect could have been removed by an instruction from the trial court to disregard the question and/or answer.  In either of these situations, the radical, disruptive result of granting a mistrial and bringing the trial to a premature conclusion … would have been avoided.

State Prosecuting Attorney’s Brief as Amicus Curiae in Support of State’s Motion for Rehearing, pg. 2.

          Undaunted, the majority finds new hope in Young.  Young v. State, 137 S.W.3d 65 (Tex. Crim. App. 2004).  The majority now lays down Lankston and picks up Young and hangs its hope of reversing this conviction on the following discussion in their new opinion:

However, an objection after an event occurs cannot fulfill the purpose of the objection, which is to prevent the occurrence of the event.  Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004).  At the conclusion of the two witnesses’ testimony, Griggs made a motion for mistrial and requested an instruction.  The trial court denied the motion for mistrial and instructed the jury before the next witness was called.  Under these circumstances, Griggs’s actions were sufficient to preserve the complaint about the mistrial ruling.  See id.  (If an instruction could not have enabled the continuation of the trial by an impartial jury, “the only suitable remedy is a mistrial, and a motion for mistrial is the only essential prerequisite to presenting the complaint on appeal.”)

Majority op. at pg. 6.

          The majority goes on to the conclusory statement that the “impression produced in the minds of the jurors — that Griggs might be a serial rapist of elderly women — was highly prejudicial and could not be cured by an instruction to disregard.”  Of course, this is the necessary conclusion of the harm analysis to reverse the conviction.  The majority offers the reader no analysis to support this conclusion.  I find no support for this conclusion in the case law, this record, or the majority opinion.  I will briefly comment on this analysis but must first focus on preservation of the issue for our review.

          The majority’s analysis of preservation is fundamentally flawed.  What the majority has to do is base its determination of preservation of the issue for our review on the motion for mistrial.  The motion for mistrial was made after several statements were made during testimony received from multiple witnesses, and the motion was not made until after the court raised the issue.

          So before we accept the majority’s preservation analysis, maybe we need to do two things.  First, we need to revisit the record.  Second, we need to revisit Young and Lankston.

          Please forgive the length of the record excerpts but to even begin to place the insignificance of this evidence in its proper light, a reader is entitled to see the manner in which the issue arose at trial.  The following excerpts will give the reader the context in which four statements regarding multiple rapes were made.  And remember these excerpts are from a lengthy record of other evidence.  Please pay particular attention to the page numbers from the record on which these statements were made.

          The first two statements were by Mr. Gravitt.  Gravitt was a cellmate of Griggs for a period of time.

Q.                What did you do – or what did you do with regards to Mr. Nichols, we were talking about that earlier?

A.                I just, I put in a request to speak to Mr. Nichols about Griggs –

Q.                Okay.

A.                -- and the statements he gave to me.

Q.                All right.  Now, what statement did Mr. Griggs give to you?  Amongst other things tell the jury what Mr. Griggs told you.

A.                That he raped some older women, and it went on quite a bit farther than that, you know, that –

Q.                Did he make a statement to you that he raped an old woman?

A.                Yes, sir.

Q.                What else did he say?

A.                And that the cops was trying to get him and they wasn’t going to get him, they – they didn’t have nothing on him, he was going to win.  I mean, be brugged – he bragged about it quite regularly.

Q.                Did he do this one time or many times?

A.                Many times.

Q.                Did or did not Mr. Griggs say anything about where he had done this, this alleged rape?

A.                Yes.

Q.                And what did he say?

A.                He said around where he lived.

(RR Vol. 10, page 57, line 3 to page 58, line 3)

Note that no objection, request, or motion for mistrial was made.  Then the following testimony was elicited.  In this passage, note the District Attorney’s effort to avoid the complained of testimony.

Q.                And tell the jury again what Mr. Griggs told you with respect to, amongst – leaving out the other things, about the rape of a lady?

A.                Mr. Griggs –

Mr. Dunn:  Your Honor, we object.  I’m afraid that is a coaching, a leading.  Your Honor, I have no way to protect the record in this case, and before this evidence is submitted, so I can protect the record, I’d like to take it out of the presence of the jury.

Mr. Keathley:  Well, Your Honor, I’m trying to operate under the perimeters of the Motion in Limine with respect to what can be admitted and what cannot be.

The Court:  I’ll tell you what, why don’t you ask specific questions with respect to this witness, and we’ll proceed in that fashion.  If I perceive that there’s a difficulty with it, then I may take the rest of the testimony out of the presence of the jury, but I see no need to do it at this time.

Mr. Keathley:  Okay.  Thank you.

Q.                (By Mr. Keathley)  Did he or did he not admit to raping an elderly lady to you?

Q.                What did he say with regards to just that – that point?

A.                Just as I said in the statement, that he had raped older women –

Q.                No, no.  I said –

A.                An older lady and that they – they was trying to catch him and they didn’t have nothing on him, he had it beat, I mean, and it went on and on, and you really got tired of hearing it.

(RR Vol. 10, page 59, line 22 to page 61, line 2)  Note that no objection, request, or motion for mistrial was made after the portion of the testimony about which a complaint is now being made.

          The next witness was Jason Grant.  Officer Grant also made two references during his testimony that are at issue.

Q.                What did Mr. Gravitt tell you in respect to the investigation of the rape...?

A.                He told me that he was in the cell with Greg Griggs and Greg had told him that he had raped three elderly –

Q.                Hold on.  Mr. – Mr. Grant, with specifics as to Mr. Griggs only, what did Mr. Gravitt tell you?

A.                That Griggs told him that he had raped three elderly women in his neighborhood and that he – he had told him about a towel and a screwdriver and that he was paranoid that we were trying to get his DNA so we could catch him.

          Q.      Okay.  Did he use the actual term neighborhood?

          A.      I believe so.

          Q.      And did he use the actual term elderly?

          A.      Yes.

          Q.      What did that lead you to conclude?

          A.      Well, it led me to believe that Griggs was a suspect in this case.

          Q.      Did you know where Mr. Griggs lived prior to this?

          Q.      And where was that?

          A.      On Ficklin.

Q.      I show you State’s Exhibit No. 45.  Again, would you point out Mr. Griggs’ home?

          A.      Right here.  (Pointing)

          Q.      And would you point out [the victim’s] home?

          A.      Right there.

Q.      Just to refresh the jury’s memory.  How far away are they in proximate distance?

          A.      Maybe half a mile.

(RR Vol. 10, page 80, line 21 to page 81, line 24)  Note that no objection, request, or motion for mistrial was made.

          Another witness was then called.  But before the witness was sworn, the jury was excused.  And then the issue was raised by the trial court as to whether a limiting instruction should be given regarding extraneous offense evidence.

                   The Court:  Mr. Dunn, how do you feel about that?

Mr. Dunn:  Your Honor, I think in order to protect the record I need to make a motion for a mistrial --

(RR Vol. 10, page 95, lines 11-14).

          This was the first time defense counsel requested a motion for mistrial, and he did not request an instruction to disregard until page 96, lines 5-7. 

          The trial court gave the following instruction to the jury:

The Court:  Be seated.  Members of the jury, before we resume the testimony in this case there’s a brief instruction that I would like to give you.  That instruction applies to all the evidence in this case and all the witnesses who have testified, but specifically the last two witnesses who have testified.  The instruction of the Court is as follows:  You shall not consider any testimony or evidence of alleged crimes or acts other than those which may relate to the alleged assault upon [the victim].  That is the Court’s instruction at this time.

(RR Vol. 10, page 97, lines 9-18)

To summarize:

1.       Witness uses the term “women” in reference to the victims.  No objection, request, or motion.  Pg. 57.

2.       Witness uses the term “women” in reference to the victims.  No objection, request, or motion.  Pg. 60.

3.       Second witness references “three elderly women” as victims.  No objection, request, or motion.  Pg. 80.

4.       Second witness references “three elderly women” as victims.  No objection, request, or motion.  Pg. 81.

5.       The trial court raises the issue out of the presence of the jury.  Pg. 92.

          6.       Motion for mistrial made for the first time.  Pg. 95.

7.       Request for instruction to disregard made for the first time.  Pg. 96.

8.       Trial court gives instruction to disregard.  Pg. 97.

9.       The trial court also gave an instruction to disregard in the charge.  CR 151.

With this foundation of what the record shows, let us revisit Young and Lankston.  Remember the majority relies upon Young as the basis that Griggs preserved this issue for review because he moved for a mistrial 40 pages (and two witnesses) after the first potentially objectionable evidence was introduced, and during these 40 pages, four potentially objectionable references were made.  The last potentially objectionable evidence occurred in the record 14 pages before the motion for mistrial.

          Does Young speak to this?  You bet it does.  Does the majority ignore this part of Young?  You bet it does.

          The Court of Criminal Appeals in Young anticipated the very problem the majority is exploiting to reverse this case.  The Court of Criminal Appeals stated:

We recognize the potential for abuse of a ruling allowing a motion for mistrial without a preceding objection or request for instruction to disregard.  If a party delays [making the] motion for mistrial and by failing to object allows for the introduction of further objectionable testimony or comments and greater accumulation of harm, the party could no more rely on this untimely motion for mistrial than on an untimely objection.  This appellant’s [Young’s] motion for mistrial was not so delayed.

Id. at 70.

          Griggs’s motion for mistrial was delayed.  Therefore, Griggs “could no more rely on the untimely motion for mistrial than on an untimely objection.”  See id.  For this reason, I would not reach the issue used by the majority to reverse this case.  Without preservation of the issue, nothing is presented for review.

          And by its failure to now cite or discuss Lankston, the case relied upon in the earlier opinion, the reader may assume the majority believes the Court of Criminal Appeals has changed the rule in Young.  This assumption would be wrong for two reasons:

1.       The rule in Lankston and Young are essentially the same rule, and

2.       Young does not mention Lankston and does not overrule it.

We do not have to put Lankston down to pick up Young.  These two opinions are not inconsistent and Young does not “change the rule” regarding preservation.  Even after Young,

(“all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial court judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.”).

Griggs v. State, No. 10-03-00286-CR, 2005 Tex. App. LEXIS 866, *8 (Tex. App.—Waco Feb. 2, 2005) (withdrawn, April 13, 2005).

          What the majority’s holding supports, is that if the trial court had done nothing, there would be no preservation; but, because the trial court on its own raised the issue, there is reversible error.  Am I the only one confused by that?

          But let us assume for a moment that the issue was preserved for review.  We must then ask whether the comments were such that an instruction to disregard would have cured the prejudice, if any.  Young at 71.  Without unnecessarily lengthening this dissenting opinion, when I consider the same factors and surrounding circumstances as the Court of Criminal Appeals did in Young, I reach the same conclusion in this case that they did in Young.  Id. at 71-72.  A timely instruction could have cured the prejudicial effect, if any.

          This is particularly true if the request and instruction had been made after the first potentially objectionable comment, or even the second.  Indeed, I believe the instruction could remove the prejudicial effect, if any, even when given, as it was, after the testimony of the two witnesses and again in the charge.

          The majority makes no real analysis of whether this is the type comment, in the context of this entire trial, for which an instruction could have been effective in removing the prejudicial effect, if any, so that the defendant could still receive a fair trial.  The majority seems to assume the jury would have been more interested in convicting someone, anyone, for the rape of multiple women, rather than the actual perpetrator.  Balderdash.  For obvious reasons, the jury would have no interest in convicting anyone other than the actual perpetrator, especially if the concern was a serial criminal.  Conviction of anyone else would not stop future crime by the actual perpetrator and would cause the investigation to find the actual perpetrator to stop, thus leaving the actual perpetrator free to roam the streets.

          In this case, a conscientious trial court judge made sure the defendant obtained a fair trial.  As a result of the trial court’s action, including raising the issue and instructing the jury, a fair trial, possibly not a perfect trial, was obtained.  The trial court weighed all the facts and circumstances regarding whether a mistrial was warranted, denied the late request, and gave an instruction.  If the majority was present for the entire trial, maybe they would come to the same conclusion the trial court did, that a mistrial was unnecessary. 

          I was not there.  On this record, the issue was not preserved, and the trial court certainly did not abuse its discretion in denying the motion for mistrial.

          I dissent.

                                                                   TOM GRAY

                                                                   Chief Justice

Dissenting opinion delivered and filed April 13, 2005

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