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concluding that the severity of the prosecutor's misconduct was neither extreme nor manifestly improper when the prosecutor told the jury to save its sympathy for punishment
Summary of this case from Thompson v. StateOpinion
No. 05-15-01012-CR
07-25-2017
UNDRE JONES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1452314-V
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Lang
Following a plea of not guilty, appellant Undre Jones was convicted by a jury of aggravated assault with a deadly weapon. Punishment was assessed by the jury at seven years' imprisonment, which was suspended by the trial court for seven years. In two issues on appeal, appellant contends (1) the evidence is insufficient to support his conviction because no rational fact finder could have found against him on his claim of self-defense and (2) the trial court abused its discretion by denying his motion for mistrial based on the State's improper closing argument. Additionally, in a "cross-point," the State requests that the trial court's written judgment be modified to accurately reflect what occurred in the trial court.
We decide appellant's two issues against him. Further, we modify the trial court's judgment as described below. As modified, the trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL CONTEXT
The indictment in this case alleged that appellant "intentionally, knowingly, and recklessly cause[d] bodily injured to Barbara Harris" by "slashing and cutting [her] with . . . a deadly weapon, to-wit: a box cutter." At trial, Harris testified that at approximately 3:45 p.m. on the date in question, she went to Creek Bend Condominiums in Dallas to visit her friend Frank Harvey. She stated she and another friend, John, sat outside Harvey's apartment unit and chatted with Harvey while he washed her car and his own in the adjacent parking lot. At some point, Harris saw appellant "coming from his mailbox checking his mail." She had seen appellant at the complex on previous visits and knew his name, but was not otherwise acquainted with him. Harris stated that as appellant passed by them, he spoke briefly with Harvey, but she did not hear what was said.
A short time later, Harris got into her car to go to the store. She saw appellant "still standing in the middle of the parking lot." She stated that as she backed out of the parking space, she heard someone "hollering." She turned toward the driver's side window, which was open, and "got socked upside the left side of my head" by appellant's closed fist. Then, appellant began hitting her car with his walking cane. Harris testified she put the car in "park" and pushed open the door, which "almost shoved [appellant] back." She stated she asked appellant what he was doing and he responded, "I will beat the hell out of you." Harris testified appellant grabbed her car keys from the ignition, then "proceeded to beat me with his walking cane." She stated she attempted to catch the end of the cane as appellant swung it at her. John approached to assist her. She testified that at that point, appellant "pulled out" a box cutter, cut her from her upper shoulder blade on her left side to her left breast, and said, "You didn't see that coming, did you?" She testified that after being cut, she "end[ed] up taking the cane and started beating him back with the cane." Then, appellant cut her again, under her left armpit. She stated John grabbed her and took her into Harvey's apartment. An ambulance arrived a short time later and Harris was transported to a hospital, where she required "about 30-plus staples" for her cuts. Photographs of her injuries and copies of her medical records were admitted into evidence.
John Vinzant testified he visited Harvey's apartment on the date in question and sat outside with Harris as described above. He had not seen or met appellant before the incident in question. Vinzant testified that shortly after appellant walked past them, Harris got into her car to go to the store and Harvey went inside his apartment. Vinzant stated he saw Harris talking with appellant from her car and "all of a sudden, I seen him slap her in the face through the window of her car." According to Vinzant, Harris got out of the car and spoke with appellant, who then began hitting her with his walking stick. Vinzant stated Harris tried to defend herself by blocking the stick with her hands. He approached and grabbed the stick from appellant. He stated that as he held the stick behind his back, Harris took the stick from him and began hitting appellant "over his complete body." Appellant put his hands up to defend himself and tried to get the stick back. At that point, Vinzant backed away "[b]ecause [Harris] was swinging and defending herself with [the stick] and I didn't want to get hit with it." Then, he saw Harris was "bleeding down her arm real bad," so he grabbed her and brought her into Harvey's apartment. While he was doing so, Harvey came out of the apartment and spoke briefly with appellant, but Vinzant did not hear what was said. Vinzant stated he did not see appellant pull out or use a box cutter at any point in time.
Karen Peete testified she works as a school bus driver for Dallas County Transportation and her bus route includes Creek Bend Condominiums. She stated that while driving through that complex on the date in question, she had to stop because "[t]here was a woman in a car and a man who wouldn't move." Peete identified appellant in open court as the man she saw. After honking several times, she radioed "dispatch" to "ask for an officer to come ask the people to move." While waiting for an officer to arrive, she saw appellant reach into the woman's car. The woman "push[ed] him away" and he then began hitting the car with his cane. Peete stated (1) after "a little bit of time," the woman swung open the car door, which "push[ed] [appellant] backwards"; (2) the woman came out of the car and "pop[ped] him in the face with her hand"; and (3) at that point, the struggle became "more and more physical of blows going back and forth between the lady and the man." Specifically, Peete stated appellant was "beating the tar out of her" with "[h]is cane and his hand" and the woman was "[t]rying to hit back" with her hands. Peete stated she saw another man approach the two and attempt to get the cane away from appellant. Then, Peete looked away to attend to a student on the bus. When she looked toward the altercation again, the woman had the cane and was hitting appellant "around his shoulder, chest area" and he was "swinging" and "hitting her." Peete stated that soon after that, she saw the woman was bleeding. The man who had approached earlier and another man pulled the woman away and helped her into a nearby apartment. Peete testified she did not see any type of cutting instrument and did not see anything cut the woman. Also, she stated the two men who helped the woman into the apartment did not at any time do "anything physical" other than trying to get appellant and the woman to "separate" and "break it up."
Harvey testified that on the date in question, appellant lived in an apartment across the parking lot from him and they were acquainted. He stated that as appellant passed by the area where he was washing cars as described above, appellant said to him, "I don't like that bitch there," which Harvey understood as referring to Harris. When Harris left to go to the store a short time later, Harvey went into his apartment. While he was inside, he heard Vinzant "holler" at him to come back outside. As he came outside, he saw Harris and appellant "physically fighting" near Harris's car. Harvey stated Harris had appellant's cane and was hitting him with it and appellant was "wrestling and fighting with her." Harris's car keys were on the ground near her car and she called to Harvey to get her keys. Harvey stated he "tried to get the keys," but appellant told him "if you don't get away, I'll cut you too." Harvey testified he did not realize anyone had been cut until Vinzant subsequently told him Harris was cut and brought her into the apartment.
Officer David Kim of the Dallas Police Department testified he responded to a call on the date in question respecting the events described above. When Kim arrived at the scene, he saw a man standing in the parking area who matched the description of the suspect on the call sheet. Kim handcuffed that person, who was appellant. Further, Kim stated he saw "a blue knife—actually, the box cutter" on the ground "[p]retty much directly right next to where [appellant] was standing." Kim asked appellant if that belonged to him and appellant said "yes, I just put that down." Kim stated appellant told him (1) Harris started the altercation; (2) he pulled out the box cutter and opened the blade "to keep her away"; and (3) he did not know how Harris got cut. Also, appellant told Kim his head hurt, so Kim called an ambulance for appellant. Kim stated he "did not see any visible injury" on appellant. The box cutter was admitted into evidence over appellant's objection and Kim testified that "a box cutter such as this" can "be used in a manner consistent with a deadly weapon."
After the State rested its case, the defense called Peete for cross-examination. Peete testified that approximately several days after the events in question, she spoke by phone with a police detective. She stated she told the detective that the first thing she saw was "the woman get out of the car and cold-cock the gentleman or punch him." She stated she did not tell the detective she saw appellant reach into the car and then hit the car with a cane or stick. Also, Peete stated she did not recall telling an investigator for the defense that the first physical contact she saw was the woman hitting the man.
Gary Traylor, an investigator for the defense, testified he interviewed Peete by phone approximately four months before trial. Traylor stated Peete told him "the first thing that she saw physical confrontation-wise was Ms. Harris slamming the door open and cold-cocking Mr. Jones." Additionally, Traylor stated he asked Peete (1) whether she saw anything prior to the woman getting out of the car and striking appellant and (2) whether she saw appellant strike the car or strike the woman sitting in the car. Traylor testified Peete answered "no" to those questions.
Appellant testified he suffers from multiple ailments, including arthritis, post-traumatic stress disorder ("PTSD"), and depression. He stated that prior to the events in question, (1) Harvey had called him derogatory names on multiple occasions and (2) he had seen Harris and Vinzant sitting outside Harvey's apartment drinking alcohol, but he was not otherwise acquainted with them. None of the three had ever hit or physically assaulted appellant. On the date in question, appellant was walking back to his apartment after checking his mail and saw Harris in her car backing out of a parking space. According to appellant, Harris rolled down the car window and said to him, "Undre, you faggot. I can come out here anytime I want." He responded, "Bitch, get off the property. You always out here starting shit." He stated he then started to "walk off" toward his apartment. He was carrying his mail, his phone, and his walking stick. According to appellant, Harris "pulled her car around," "put it in park," opened the door, and got out. He stated she did not hit him with the car door. Appellant testified that immediately after getting out of the car, Harris "charges me up and she started swinging on me." He stated he threw his arms up to block her and "kept telling her to stop, stop." He smelled the odor of alcohol on her. He stated he started swinging his walking stick "around her" and then "it got real intense and she just got [the walking stick] and she started whacking me with it." He testified Harris "kept hitting me in the head and stuff" and Vinzant "was standing there holding her shoulders" while she did so. According to appellant, Harris was "the aggressor" and he was just trying to defend himself. He stated that at some point after Harris grabbed the walking stick, he jumped into her car, pulled the keys from the ignition, and threw the keys out of the car "to keep her from getting away." He testified (1) he was in fear for his life and (2) "it got to be three people on me." Photographs of appellant's head and arm taken immediately after the altercation were admitted into evidence and published to the jury.
Additionally, appellant testified that at the time of the events in question, he had a box cutter with him for "protection," but he does not recall whether or not he pulled out the box cutter at any point. He stated that as a result of his PTSD, he is sometimes not able to recall events. He testified he is not disputing that Harris was cut by him, but he does not remember cutting her.
On cross-examination, appellant testified he no longer has the cane involved in the incident in question, but the cane he currently uses is basically the same. Appellant's current cane was published to the jury for demonstrative purposes.
Katrina Davis testified she is appellant's niece and works as a vocational nurse. On the date in question, she was temporarily living with appellant because she was worried about his safety and had heard Harvey and "his crew" harassing and "bullying" appellant. She stated appellant began carrying a box cutter with him after his nephew was robbed in the same neighborhood. She testified she did not witness the altercation described above, but saw appellant immediately afterward and asked police to take him to the hospital because his head was bleeding. Appellant was "shaken up" and told her Harris "was beating him in the head." Further, Davis testified she believed a cane like appellant's could cause death "[w]hen you're beating someone in the head."
Dr. Sharon Kirven testified she practices family medicine and has treated appellant for more than ten years. She stated appellant suffers from several medical conditions, including type 2 diabetes, anxiety, depression, and peripheral neuropathy, which is a degeneration of nerves in the hands and feet. Also, she testified appellant reported to her that he was assaulted in 2010 and it is her opinion that that he suffers from PTSD. She stated she does not believe PTSD would cause appellant to have memory lapses, but "short term memory defect" is a symptom of depression. Kirven testified she treated appellant for "headaches, dizziness and nausea" approximately two weeks after the incident in question. Based on what appellant told her respecting that incident and "how he was struck in the head," she concluded he had a mild concussion. Further, Kirven testified (1) a cane similar to appellant's is capable of causing serious bodily injury or death to an individual "if you hit them in the right place on their skull" and (2) a person who has limited mobility, chronic illness, and a feeling of vulnerability and who is in an altercation like the one described to her could have "a reasonable belief that they had to defend themselves."
On cross-examination, Kirven testified appellant's hospital records from his visit to the emergency room on the date in question state there was "no bleeding noted" and his CT scan and x-rays were "normal" and showed no swelling. Also, she stated that a person with PTSD can be "hypervigilant" and "more reactive" than a reasonable person.
During closing argument, the prosecution stated in part,
Just because [appellant] hobbles up to this witness stand, just because he's a pitiful sight, that has no place in guilt and innocence. You want to feel sorry for him because of the condition that he's in today, we save that for punishment. Remember the punishment range in this case can be anywhere—At that point, counsel for appellant objected on the ground that "[t]his is inappropriate to be talking about punishment during the guilt and innocence." The trial court sustained that objection and instructed the jury to "disregard, please, the last comments." Also, counsel for appellant moved for a mistrial and the trial court denied that motion. Then, the prosecution continued as follows:
No time for that right now. Your decision is to be based on the evidence that you heard from this witness stand yesterday. Save sympathy for later. Render a true verdict and hold—At that point, counsel for appellant stated, "That's still improper. You already sustained my objection and it's very prejudicial." The trial court sustained that additional objection and again instructed the jury to "disregard." Further, counsel for appellant again moved for a mistrial, which motion was denied by the trial court.
The charge of the court stated in part, "Your sole duty at this time is to determine the guilt or innocence of the defendant under the indictment in this cause and restrict your deliberations solely to the issue of guilt or innocence of the defendant." Further, as to self-defense, the application paragraph of charge of the court stated as follows:
Additionally, the charge of the court included the following instruction respecting self-defense:
[A] person has a right to defend his life from apparent danger as fully and to the same extent as he would had the danger been real, provided that he acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force was immediately necessary to protect himself against the attacker's or attackers' use or attempted use of unlawful deadly force.
. . . .
In determining the existence of real or apparent danger, you should consider all the facts and circumstances in evidence before you; all relevant facts and circumstances surrounding the use of force or deadly force, if any; the previous relationship existing between the Defendant and the alleged injured party or the other person or persons with the alleged injured party; together with all relevant facts and circumstances going to show the condition of the mind of the Defendant at the time of the alleged offense, including any and all threats previously communicated to the Defendant from the alleged injured party or the other person or persons with the alleged injured party. In considering such circumstances, you should place yourselves in the Defendant's position at that time and view them from his standpoint alone.
If you find from the evidence, or you have a reasonable doubt thereof, that, at the time of the alleged offense, the defendant reasonably believed that he was under attack or attempted attack with unlawful deadly force from Barbara Harris, or John Vinzant, or Frank Harvey, or any combination thereof, and that the defendant reasonably believed, as viewed from his standpoint, that such deadly force as he used, if any, was immediately necessary to protect himself against such attack or attempted attack, and so believing, he slashed and cut Barbara Harris with a box cutter, a deadly weapon, then you shall acquit the Defendant and say by your verdict "not guilty."
Only if you find beyond a reasonable doubt that the Defendant's conduct was not justified as self-defense as explained herein, may you find the Defendant "guilty" of the offense of aggravated assault as charged in the indictment.
Following the jury's verdict and assessment of punishment described above, this appeal was timely filed.
II. REJECTION OF SELF-DEFENSE
A. Standard of Review
We review the legal sufficiency of the evidence to support a jury's rejection of a self-defense claim under the standard in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). In self-defense cases, this requires a court to review all the evidence presented at trial in the light most favorable to the prosecution to determine if any rational trier of fact would have found the essential elements of the charged offense beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). We are required to defer to the fact finder's credibility and weight determinations because the fact finder is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.
B. Applicable Law
The Texas Penal Code provides in part that a person commits aggravated assault if he intentionally or knowingly causes bodily injury to another while using or exhibiting a deadly weapon. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). A deadly weapon includes "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(a)(17)(B) (West Supp. 2016).
With certain exceptions, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Id . § 9.31(a). A person is justified in using deadly force against another (1) if he would be justified in using force against another under section 9.31 and (2) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Id. § 9.32(a); see also Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996) (term "reasonably believes" in section 9.32 encompasses traditional holding that suspect is justified in defending against danger as he reasonably apprehends it). "Deadly force" means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. PENAL CODE § 9.01(3). "Reasonable belief" means a belief that would be held by an ordinary and prudent person in the same circumstances as the actor. Id . § 1.07(a)(42).
A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant does so, the State then bears the burden of persuasion to disprove the raised defense. Id.; Saxton, 804 S.W.2d at 913-14. The burden of persuasion does not require the State to produce evidence, but rather requires only that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594. The issue of self-defense is a fact issue to be determined by the fact finder, who is free to accept or reject the defensive issue. Saxton, 804 S.W.2d at 913-14. A determination of guilt by the fact finder implies a finding against the defensive theory. Zuliani, 97 S.W.3d at 594. As the sole judge of the weight and credibility accorded any witness's testimony, the fact finder is free to believe or disbelieve the testimony of all witnesses, and to accept or reject any or all of the evidence produced by the respective parties. Cleveland v. State, 177 S.W.3d 374, 380 (Tex. Crim. App. 2005).
C. Application of Law to Facts
In his first issue, appellant contends the evidence is insufficient to support his conviction for aggravated assault because no rational fact finder could have found against him beyond a reasonable doubt on his claim of self-defense. According to appellant, (1) "[Harris's] physical aggression towards [appellant] coupled with her past history of bullying [appellant] fostered [appellant's] justifiable need to use self-defense to protect himself"; (2) "[appellant] was justified in using deadly force to defend himself against [Harris's] physical attack of him"; and (3) "[t]he testimony and evidence presented at trial did not undermine [appellant's] claim of self-defense."
The State responds that the jury was entitled to reject appellant's self-defense claim as lacking in credibility and find that appellant's use of deadly force against Harris was not justified. The State asserts (1) "[t]he evidence, viewed in the light most favorable to the verdict, shows appellant cut [Harris] with a deadly weapon—a box cutter—in response to [Harris's] use of a walking cane against him"; (2) "[t]he jury, who had examined a cane almost identical to the one used in the attack, could have reasonably determined that the complainant did not use deadly force against appellant and that appellant's belief about the need for deadly force was unreasonable"; and (3) "[m]oreover, appellant's testimony on the issue of self-defense was inconsistent."
In support of his argument, appellant asserts the evidence shows (1) Peete and appellant "both established that Harris was the initial aggressor when she punched [appellant] in the face upon exiting her vehicle"; (2) "Harris then proceeded to use [appellant's] cane to beat him all over his body, including his head"; (3) "[s]he hit him so hard that he suffered a concussion"; (4) appellant "did not pull out the box cutter until after Harris started hitting him with his cane"; (5) "Harris, Harvey, and Vinzant had a history of antagonizing [appellant] with numerous derogatory slurs and hateful bullying"; (6) "Vinzant's involvement in the physical altercation exacerbated the situation because although he was holding Harris's shoulders he allowed her to continue hitting [appellant] with the cane"; and (7) Davis and Kirven testified that "hitting a person's head with a cane can cause bodily injury or death." Therefore, according to appellant, (1) "[i]t was reasonable for [appellant] to feel that these people who had bullied him on previous occasions were joining forces to physically attack him"; and (2) "[b]ased on her demonstrated physical aggression, [appellant's] belief that Harris would use deadly force against him was not unreasonable."
However, the record also shows (1) Harris, Peete, and Vinzant testified that the initial physical contact in the altercation was appellant reaching into Harris's car and/or hitting her while she was inside the car; (2) Harris testified that at the time appellant first cut her, appellant had the cane; (3) Vinzant stated that when Harris took the cane from him, he backed away "[b]ecause [Harris] was swinging and defending herself with [the stick] and I didn't want to get hit with it"; (4) Peete testified the portion of appellant's body Harris hit with the cane was "around his shoulder, chest area"; (5) Kim stated he "did not see any visible injury" on appellant; (6) Kirven testified appellant's hospital records from his visit to the emergency room on the date in question state there was "no bleeding noted" and his CT scan and x-rays were "normal" and showed no swelling; (7) Kirven stated she diagnosed appellant with a concussion two weeks later based solely on what appellant told her; (8) Peete stated the two men who helped Harris into the apartment did not at any time do "anything physical" other than trying to get appellant and Harris to "separate" and "break it up"; and (9) a cane that appellant testified is "basically the same" as the cane used in the altercation was published to the jury. As described above, the jury was free to believe or disbelieve the testimony of all witnesses and to accept or reject any or all of the evidence produced by the respective parties. See Cleveland, 177 S.W.3d at 380.
On this record, we conclude the evidence is sufficient to support a finding by the jury that appellant could not have reasonably believed deadly force was immediately necessary to protect him against the use or attempted use of deadly force by Harris. See PENAL CODE § 9.32(a). Therefore, we conclude a rational jury could have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914.
We decide against appellant on his first issue.
III. DENIAL OF MOTION FOR MISTRIAL
A. Standard of Review
We review the denial of a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). We view the evidence in the light most favorable to the trial court's ruling, considering only those arguments before the court at the time of the ruling. Ocon v. State, 284 S.W.3d 880, 885 (Tex. Crim. App. 2009). The ruling must be upheld if it was within the zone of reasonable disagreement. Id.; Archie, 221 S.W.3d at 699.
B. Applicable Law
The law provides for, and presumes, a fair trial, free from improper argument by the prosecuting attorney. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991); Brown v. State, 498 S.W.3d 666, 673 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd). Proper jury argument falls within one of four distinct categories: (1) summary of the evidence, (2) reasonable deduction from the evidence, (3) response to argument of opposing counsel, and (4) plea for law enforcement. Long, 823 S.W.2d at 267. It is generally improper for the State to comment on punishment during the guilt/innocence stage of the trial. Wright v. State, 178 S.W.3d 905, 930 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).
In determining whether improper jury argument during the guilt/innocence phase of a trial warrants a mistrial, we balance three factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2) curative measures (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Archie v. State, 340 S.W.3d 734, 739, 740-41 (Tex. Crim. App. 2011). This analysis is "conducted in light of the trial court's curative instruction." Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Id.; see also Long, 823 S.W.2d at 267 ("Reversible error results from improper prosecutorial argument only when the argument is 'extreme, manifestly improper, injects new and harmful facts into [the] case or violates a mandatory statutory provision and is thus so inflammatory that its prejudicial effect cannot reasonably be cured by judicial instruction to disregard argument.'" (quoting Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991)).
C. Application of Law to Facts
In his second issue, appellant contends the trial court abused its discretion when it denied his motion for mistrial after the prosecutor's improper closing argument during the guilt/ innocence phase of trial. According to appellant, the prosecutor's argument in question (1) "advised the jury to ignore the facts of this case and find [appellant] guilty while saving their sympathy for punishment"; (2) "impermissibly injected punishment into the guilt/innocence phase of trial"; and (3) "was severe and emphasized even after the trial court sustained [appellant's] objection to it, and no curative measures could have removed the resulting inflammatory and prejudicial impact."
The State responds that although appellant claims the State told the jury to "ignore the facts of this case" in reaching its verdict, "the record shows the prosecutor made the complained-of comments about punishment while telling the jury to focus on the facts of the case." Further, the State asserts the record "also shows that any reference to punishment was brief and cured by the [trial] court's instruction to disregard." Therefore, the State argues, "[t]he trial court properly denied appellant's requests for a mistrial under these circumstances."
As described above, the complained-of argument consists of the following statements by the prosecution:
Just because [appellant] hobbles up to this witness stand, just because he's a pitiful sight, that has no place in guilt and innocence. You want to feel sorry for him because of the condition that he's in today, we save that for punishment. Remember the punishment range in this case can be anywhere— . . . . No time for that right now. Your decision is to be based on the evidence that you heard from this witness stand yesterday. Save sympathy for later. Render a true verdict and hold
Even assuming without deciding that this argument was improper, we disagree with appellant's position that the trial court's curative measures were "overwhelmed" by the other two relevant factors, i.e., the severity of the misconduct and the certainty of conviction absent the misconduct. See Archie, 340 S.W.3d at 739. Appellant contends the improper argument was severe because the prosecutor (1) "invited the jury to find [appellant] guilty because they could simply sentence him to a lesser punishment to make up for any bad feelings the jury might have about convicting him"; (2) "asked the jury to disregard the jury charge instructions about finding someone guilty beyond a reasonable doubt and instead asked the jury to consider punishment rather than the facts of the alleged offense"; and (3) made the complained-of point "more than once."
In determining the severity of the misconduct, we look at the magnitude of the prejudicial effect and whether the misconduct was extreme or manifestly improper. Rice v. State, Nos. 05-15-01427-CR & 05-15-01428-CR, 2017 WL 359755, at *8 (Tex. App.—Dallas Jan. 19, 2017, pet. ref'd) (mem. op., not designated for publication) (citing Hawkins, 135 S.W.3d at 77). In the case before us, the prosecutor's complained-of argument, on its face, did not suggest that the jury should disregard the facts of the case. Further, in the second statement, the prosecutor specifically stated in part, "Your decision is to be based on the evidence that you heard from this witness stand yesterday." On this record, we conclude the severity of the misconduct was neither extreme nor manifestly improper. See Horne v. State, 228 S.W.3d 442, 450 (Tex. App.—Texarkana 2007, no pet.) (concluding mistrial was not warranted by State's improper argument, "Let's hold him responsible and find him guilty . . . . Punishment is later, guilt-innocence is now. If you don't want to hold him to the highest punishment, that's up to you.").
As to the certainty of conviction absent the misconduct, appellant argues, "Given the facts in this case establishing mutual combat and self-defense, this Court cannot be certain that the jury would have convicted Appellant absent the prosecutor's insistence that the jury counter their guilty verdict with a more compassionate sentence." However, as described above, the evidence included testimony from several eyewitnesses, as well as appellant's testimony that he did not deny cutting Harris. See Archie, 340 S.W.3d at 739 (factor respecting certainty of conviction absent misconduct requires consideration of strength of evidence supporting the conviction). Further, we disagree with appellant's position that the record shows "insistence" by the prosecutor that "the jury counter their guilty verdict with a more compassionate sentence."
Finally, the trial court's curative measures included two specific instructions to disregard the argument in question. Ordinarily, an instruction to disregard will sufficiently relieve harm, except with respect to the most inflammatory statements. See Rice, 2017 WL 359755, at *8 (citing Freeman v. State, 340 S.W.3d 717, 727-28 (Tex. Crim. App. 2011)). Additionally, the jury charge for the guilt/innocence phase of trial stated in part, "Your sole duty at this time is to determine the guilt or innocence of the defendant under the indictment in this cause and restrict your deliberations solely to the issue of guilt or innocence of the defendant." Nothing in the record suggests the jury failed to follow the trial court's instruction. Id.; see also Jenkins v. State, 493 S.W.3d 583, 616 (Tex. Crim. App. 2016) (jury is presumed to have understood and followed trial court's instructions absent evidence to the contrary). On this record, we conclude the trial court did not abuse its discretion by denying appellant's motion for mistrial. See Archie, 340 S.W.3d at 739; Horne, 228 S.W.3d at 450.
We decide appellant's second issue against him.
IV. MODIFICATION OF TRIAL COURT'S JUDGMENT
In a "cross-point," the State asserts the trial court's written judgment "should be modified to correctly reflect that appellant was convicted by a jury on his plea of 'not guilty' and that he was placed on seven years' regular—not deferred—community supervision." The record shows the trial court's judgment incorrectly states appellant entered a plea of guilty to the charged offense and was placed on seven years' deferred adjudication community supervision in accordance with the terms of a plea agreement.
Pursuant to the Texas Code of Criminal Procedure, "when in the judge's opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision." TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West Supp. 2016).
An appellate court has the power to modify an incorrect judgment to make the record speak the truth when it has the necessary information before it to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991 pet. ref'd). Because we have the necessary information in the record, we modify the trial court's judgment in this case as follows: (1) under the heading "Plea to the Offense," the term "GUILTY" is changed to "NOT GUILTY"; (2) the portion of the judgment stating "Terms of Plea Bargain: 7 YEARS DEFERRED" is changed to "Verdict of Jury: GUILTY"; (3) the portions of the judgment stating appellant was placed on deferred adjudication community supervision are deleted; and (4) the judgment is changed to show punishment was assessed by the jury at seven years' confinement, the imposition of the sentence of confinement was suspended by the trial court, and appellant was placed on community supervision for seven years.
V. CONCLUSION
We decide appellant's two issues against him. Additionally, we modify the trial court's judgment in this case as follows: (1) under the heading "Plea to the Offense," the term "GUILTY" is changed to "NOT GUILTY"; (2) the portion of the judgment stating "Terms of Plea Bargain: 7 YEARS DEFERRED" is changed to "Verdict of Jury: GUILTY"; (3) the portions of the judgment stating appellant was placed on deferred adjudication community supervision are deleted; and (4) the judgment is changed to show punishment was assessed by the jury at seven years' confinement, the imposition of the sentence of confinement was suspended by the trial court, and appellant was placed on community supervision for seven years.
As modified, the trial court's judgment is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2
151012F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1452314-V.
Opinion delivered by Justice Lang, Justices Fillmore and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: (1) under the heading "Plea to the Offense," the term "GUILTY" is changed to "NOT GUILTY"; (2) the portion of the judgment stating "Terms of Plea Bargain: 7 YEARS DEFERRED" is changed to "Verdict of Jury: GUILTY"; (3) the portions of the judgment stating appellant was placed on deferred adjudication community supervision are deleted; and (4) the judgment is changed to show punishment was assessed by the jury at seven years' confinement, the imposition of the sentence of confinement was suspended by the trial court, and appellant was placed on community supervision for seven years.
As MODIFIED, the judgment is AFFIRMED. Judgment entered this 25th day of July, 2017.