HOGG v. STATE

Full title: GARY HOGG, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 12, 2011

No. 05-10-00231-CR (Tex. App. Jul. 12, 2011)

Opinion

No. 05-10-00231-CR

Opinion Filed July 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F09-52326.

Before Justice RICHTER, LANG, and FILLMORE.

OPINION

Opinion By Justice RICHTER.

Appellant was charged with capital murder. A jury found him guilty of the lesser-included offense of murder and assessed punishment at sixty years' imprisonment and a $10,000 fine. In two issues on appeal, appellant argues the trial court erred in denying his motion for a mistrial and he suffered egregious harm when the trial court improperly charged the jury on the culpable mental state required for a murder conviction. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.

I. Background

Appellant, Markivey Watkins, MooMoo, Quasey Bell, and A.J. planned to rob Derrick Alberty, a drug dealer who kept marijuana and large sums of cash in his home. The group planned for appellant and MooMoo to confront Alberty outside and force him inside to open his safe. The remaining three in the group were to arrive thereafter. On the day of the offense, after A.J. informed MooMoo that Alberty was outside, MooMoo and appellant drove to Alberty's house. Before they could exit their vehicle, Alberty pulled out a machine gun and began firing at them. Appellant began firing back, and hit Alberty. When appellant began firing, the other three men in the group pulled up to the house. Alberty's common-law wife opened the door to see what was going on, saw the men, and shut the door just as appellant fired in her direction, hitting the door just below the doorknob. The group took the bag of cash and drugs Alberty had been carrying and the diamond-encrusted chain he was wearing, and drove away. Alberty subsequently died from his gunshot injuries. At trial, videotapes of the shooting captured on Alberty's surveillance system were admitted into evidence. Appellant did not dispute he shot and killed Alberty, but claimed he did not do so intentionally and was not guilty of capital murder. To this end, defense counsel argued the shooting was simply an aggravated robbery "that went horribly wrong." As a result, defense counsel requested that the jury return a verdict on the lesser offense of murder or aggravated robbery. The jury was instructed on the law of the parties, as well as the lesser offenses of murder, aggravated robbery, and manslaughter. The jury ultimately rejected the State's capital murder theory and convicted appellant of the lesser-included offense of murder.

II. Discussion

Motion for Mistrial

During voir dire, the State offered a hypothetical involving five masked men and a home invasion to illustrate the application of party conspiracy to the charged offense, and stated "Burglary plus murder is equal to capital murder, right?" Defense counsel objected that the hypothetical was legally unsupportable because the murder had to be intentional; a knowing murder would not be sufficient for capital murder. The trial court sustained the objection. The complained-of argument occurred later, but referenced this earlier exchange. During the guilt-innocence phase of trial, the prosecutor told the jury, "Your issue is going to boil down to did this defendant . . . intentionally cause the death of Alberty on that day in the course of committing robbery." Then the prosecutor stated:

Remember in voir dire we talked about the home invasion and the five masked men that comes in and the homeowner gets fed up and starts stabbing somebody. And then one of the home invaders-we talked about how that was capital murder. That's this case. . . .

Defense counsel objected and pointed out that his objection to the State's hypothetical had previously been sustained and stated, "that's factually and an illegally incorrect statement of the law unless they can prove it was an intentional murder." The trial court sustained the objection and instructed the jury to disregard the statement, but denied appellant's motion for a mistrial. Appellant contends the State's remarks conveyed a false statement of the law-that the jury could find appellant guilty of capital murder without finding an intentional killing. See Tex. Penal Code Ann. § 19.03(a)(2) (West 2011) (requiring intentional killing when murder committed or attempted in course of robbery and other crimes). According to appellant, the refusal to grant a mistrial mandates reversal because the trial court's curative measure was patently insufficient to ameliorate the harm. The State responds that the motion for mistrial was properly denied. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010), cert. denied, 2011 WL 1481330, 79 USLW 3629 (June 10, 2011). A motion for mistrial will be granted "only in extreme circumstances, where the prejudice is incurable." Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We generally presume that a prompt instruction to disregard will cure any error associated with improper jury argument. Phillips v. State, 130 S.W.3d 343, 356 (Tex. App.-Houston [14th Dist.] 2004) aff'd, 193 S.W.3d 904 (Tex. Crim. App. 2006). "Only offensive or flagrant error warrants reversal when there has been an instruction to disregard." Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000). Further, we are to presume the jury will follow the court's instructions. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). When the refusal to grant a mistrial follows an objection for improper jury argument, we evaluate the trial court's decision using the following factors: (1) the severity of the misconduct; (2) the measure adopted to cure the misconduct; and (3) the certainty of the conviction absent the misconduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). When assessing the severity of an improper jury argument, our primary focus is the prejudicial effect of the misconduct. Id. In deciding whether prejudice was incited, we examine the statement "in light of the facts adduced at trial and in the context of the entire argument." See McGee v. State, 774 S.W.2d 229, 239 (Tex. Crim. App. 1989); see also Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) ("The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case."). Balancing these factors in the present case, we conclude the trial court did not abuse its discretion in refusing to grant a mistrial. Although the State's argument was improper, there is nothing to suggest the State intended to mislead the jury by referencing the earlier hypothetical. More importantly, there is nothing to suggest the jury was actually misled. Immediately prior to the improperly referenced hypothetical, the State told the jury the only issue before them was whether appellant intentionally caused the death of Alberty. Subsequent arguments by both the State and the defense focused on the evidence of appellant's intent to kill. Similarly, there is also nothing to suggest the jury did not follow the court's instruction to disregard the argument. See Colburn, 966 S.W.2d at 520 (jury presumed to follow court's instruction). Finally, consideration of the "certainty of conviction" also does not establish the requisite degree of prejudice. Appellant complains that the jury was confused about the culpable mental state required for a capital murder conviction. Significantly, however, the jury did not convict appellant of capital murder; appellant was found guilty of the lesser-included offense of murder.¹ Thus, it is reasonable to infer the jury was not misled by the State's improper argument, and understood that in the absence of an intentional killing, appellant could not be convicted of capital murder. Appellant's first issue is overruled.

Charge Error

In his second issue, appellant maintains the trial court committed charge error by failing to limit the culpable mental state of murder to the results of appellant's conduct. When reviewing claims of jury-charge error, we first determine whether an error actually exists in the charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). In the absence of an objection, we will not reverse for jury charge error unless the record shows "egregious harm." Id. at 743-44. Here, there was no objection to the charge, so we are tasked with determining whether the record shows egregious harm. See id. In determining whether appellant suffered egregious harm, we consider (1) the entire jury charge; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) arguments made by counsel; and (4) any other relevant information revealed by the record as a whole. See Oursbourn v. State, 288 S.W.3d 65, 69 (Tex. App-Houston [1st Dist.] 2009, no pet.) (citing Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)). Before we can find egregious harm, the record must show that appellant suffered actual, rather than merely theoretical harm from the jury charge error. Id. (citing Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984)). Murder is a "result of conduct offense," which means the culpable mental state must relate to the result of the conduct — i.e. the causing of the death — and not the nature of the conduct. See Roberts v. State, 273 S.W.3d 322, 328-29 (Tex. Crim. App. 2008). Thus, a charge that contains the full statutory definitions of "intentionally" and "knowingly" is erroneous. See Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). The court of criminal appeals has stated that where the application paragraph in a charge correctly instructs the jury, an error in the abstract paragraph is not egregious. See Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999). But in a per curium, unpublished opinion, the court subsequently held that an appellate court improperly limits its harm analysis when it does so without addressing the other Almanza factors. See Dougherty v. State, No. PD-1411-05, 2006 WL 475802 at *1 (Tex. Crim. App. March 1, 2006) (per curium) (not designated for publication) (citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)). In Dougherty, the appellate court determined that the abstract portion of the charge did not cause egregious harm because the application paragraph was correct. Although the court had correctly set forth the standard for assessing harm, the high court determined that a harm analysis based on charge error could not be based solely on the jury charge but must instead include consideration of all four Almanza factors. Id. But see Dougherty v. State, 188 S.W.3d 670, 670-71 (Tex. Crim. App. 2006) (Keller, P. J., dissenting) (concluding erroneous abstract paragraph remedied by proper application paragraph without necessity of considering all Almanza factors). Therefore, our analysis includes consideration of all four Almanza factors. See Almanza, 886 S.W.2d at 171. The first Almanza factor requires consideration of the entire jury charge. Almanza, 686 S.W.2d at 171. Here, the charge was multifarious, and included the lesser-included offenses of murder, aggravated robbery, and manslaughter. Although the abstract portion of the charge erroneously included the full statutory definitions of "intentional" and "knowing," the application paragraph correctly limited the culpable mental state to the result of appellant's conduct. See Medina, 7 S.W.3d at 640. Specifically, the jury was instructed to find appellant guilty of murder if it found from the evidence, beyond a reasonable doubt, that appellant "did then and there intentionally or knowingly cause the death of [Alberty] . . . by shooting [him] with a firearm." Therefore, the charge does not weigh in favor of egregious harm. With respect to the second Almanza factor to be considered, the "state of the evidence," appellant's reliance on the absence of proof that the group agreed to or contemplated killing Alberty is misplaced. We find no evidence in the record suggesting that when appellant shot at Alberty at relatively close range he did not intend the result of his conduct or know that his conduct was reasonably certain to cause death.² See e.g., Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993) (intent to kill may be inferred from use of a deadly weapon in a deadly manner); Godsey v. State, 719 S.W.2d 578, 580-81 (Tex. Crim. App. 1986) (holding specific intent to kill may be inferred where defendant used firearm and fired or attempted to fire at person). The jury viewed the videotape of the shooting and could infer that appellant acted with the required mental state at the time of the shooting. See e.g., Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) (stating jury may infer intent to kill from use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from use of weapon). As to the third Almanza factor, "arguments of counsel," although the State initially made an improper argument, subsequent references to the requisite mental state by both the State and the defense focused on appellant's intent to kill. Indeed, during closing argument, defense counsel argued, "Capital murder is when you intentionally take someone's life because you want no other result but for them to be dead when you finish doing what you've done." Another prosecutor argued, "If you do an intentional killing during a `burg hab,' it's capital murder, okay?" Finally, with regard to the final Almanza factor, appellant has not identified and we are not aware of any "other relevant information" we should consider. Thus, in light of the Almanza factors, we are unable to conclude appellant suffered egregious harm. Appellant's second issue is overruled. Having resolved all of appellant's issues against him, we affirm the trial court's judgment.