Laningham v. State

Full title: D.J. LANINGHAM, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Jul 11, 2007

No. 10-06-00099-CR (Tex. App. Jul. 11, 2007)

Opinion

No. 10-06-00099-CR

Opinion delivered and filed July 11, 2007. DO NOT PUBLISH.

Appeal from the 278th District Court Leon County, Texas, Trial Court No. CM-05-400.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

BILL VANCE, Justice.

A jury found Appellant D. J. Laningham guilty of the felony offense of failure to verify sex-offender registration within a ninety-day period and assessed a 99-year prison sentence. Laningham appeals, asserting three issues. We will affirm. His first issue asserts that the trial court erred in denying a mistrial motion after the prosecutor's alleged comment on the failure to testify. When the trial court sustains an objection and instructs the jury to disregard but denies a defendant's motion for a mistrial, the issue is whether the trial court abused its discretion in denying the mistrial. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App. 2004). Proper closing arguments consist of: (1) summations of the evidence, (2) reasonable deductions from the evidence, (3) answers to argument of opposing counsel, and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). "A comment on an accused's failure to testify violates the accused's state and federal constitutional privileges against self-incrimination." Smith v. State, 65 S.W.3d 332, 339 (Tex.App.-Waco 2001, no pet.).

It is well settled that a prosecutor's comment amounts to a comment on a defendant's failure to testify only if the prosecutor manifestly intends the comment to be, or the comment is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant's failure to testify. United States v. Jefferson, 258 F.3d 405, 414 (5th Cir. 2001); Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001). It is not sufficient that the comment might be construed as an implied or indirect allusion to the defendant's failure to testify. Bustamante, 48 S.W.3d at 765.

Wead v. State, 129 S.W.3d 126, 130 (Tex.Crim.App. 2004). During argument in the guilt-innocence phase, the prosecutor stated:

You know, I remember going to register for the draft with my dad. I went there, I put my information on the table and I filled it out. Mr. Laningham wants to sit up here today and tell you that he doesn't know if he's the person on these pages here.¹

Upon sustaining Laningham's Fifth Amendment objection, the trial court instructed the jury to disregard the prosecutor's comment. Based on the context of the prosecutor's comment, we agree with the State that the prosecutor's intention was to respond to defense counsel's argument — not to Laningham's testimony or lack thereof. We cannot conclude that a jury would naturally and necessarily have taken it as a comment on Laningham's failure to testify. See Canales v. State, 98 S.W.3d 690, 694-95 (Tex.Crim.App. 2003). The trial court properly denied the motion for mistrial. We overrule issue one. Laningham's second issue asserts that the evidence is legally and factually insufficient to support the jury's finding of "true" that he had a prior felony conviction in Colorado for sexual assault, as alleged in the enhancement paragraph.² The amended indictment alleges:

And it further presented in and to said Court that, prior to the commission of the aforesaid (hereafter styled the primary offense), on the 23^rd day of June 1992, in cause #91CR1975 in the District Court in Adams County, Colorado, the defendant, D J Laningham, was convicted of the felony offense of Criminal Attempt to Commit 3^rd Degree Sexual Assault, a 5^th Degree Felony;

Laningham was found guilty of violating former article 62.10, section (b)(3), a second-degree felony. See Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 18, 1999 Tex. Gen. Laws 4831, 4839-40 (amended 2005) (current version at TEX. CODE CRIM. PROC. ANN. art. 62.102(b)(3) (Vernon 2006)). Proof of a prior felony conviction enhances a second-degree felony to a first-degree felony. See TEX. PEN. CODE ANN. § 12.42(b) (Vernon Supp. 2006). Laningham argues that the State failed to prove that the Colorado conviction was a felony. Specifically, he asserts that the Colorado pen packet does not reveal that the conviction was for a felony.³ That exhibit reveals a Colorado judgment of conviction for "criminal attempt to commit third degree sexual assault (C.R.S. 18-2-101 18-3-404) F-5." The State posits that "F-5" refers to a fifth-degree felony and cites Colorado law,⁴ which we may take judicial notice of. See TEX. R. EVID. 202. Moreover, the judgment reflects a four-year sentence in the Colorado Department of Corrections, indicating a felony conviction. See TEX. PEN. CODE ANN. § 1.07(a)(23) (Vernon Supp. 2006). For these reasons, the Colorado pen packet is legally and factually sufficient evidence that the Colorado conviction was a felony. We overrule issue two. The third issue asserts that the State did not timely read the indictment's enhancement paragraph and that Laningham did not enter his "not true" plea until after the punishment evidence had been presented. In this case, the trial court proceeded to the punishment phase without reading the indictment's enhancement paragraph. After the State presented its last punishment witness, but before it rested, counsel and the trial court had a bench conference. Thereafter, over Laningham's untimeliness objection, the State read the enhancement allegation, and Laningham pled "not true." No further objection was made, and both sides rested. The mandatory reading of an indictment's enhancement portion is not done until the punishment phase. See TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(1) (Vernon 2007); Warren v. State, 693 S.W.2d 414, 415 (Tex.Crim.App. 1985). Citing Warren, Laningham argues that because the State did not reintroduce its punishment evidence — particularly the prior Colorado conviction — the issue of punishment was not joined. See Warren, 693 S.W.2d at 416; see also Turner v. State, 892 S.W.2d 786, 789 n. 5 (Tex.Crim.App. 1995) ("We also note when an error like the one here is discovered the State can cure it by reading the enhancement paragraph, having the defendant plead to it, and reintroducing the evidence."). But Warren is distinguishable because the reading of the enhancement was entirely omitted and the defendant never entered a plea. Moreover, Laningham did not object on the specific ground that the issue of punishment was not joined because the State had failed to reintroduce its punishment evidence, nor did he object to the State's punishment evidence or move the trial court to strike it. Thus, Laningham did not preserve his specific complaint for appellate review. See TEX. R. APP. P. 33.1(a)(1)(A); Meadows v. State, 2007 WL 1651324, at *6-9 (Tex.App.-El Paso June 7, 2007, no pet. h.) (not designated for publication) (holding that by not objecting to State's failure to reintroduce evidence nor requesting that evidence be stricken, defendant failed to preserve complaint); Castillo v. State, 530 S.W.2d 952, 954 (Tex.Crim.App. 1976) ("However, in the absence of an objection directing the court to the correct procedure, we hold that the error was not preserved, under the circumstances here presented." Defendant moved only for a mistrial and did not object to State's failure to reintroduce the evidence, so complaint was not preserved and any error was waived); Manuel v. State, 2005 WL 1111247, at *2 (Tex.App.-Houston [1st Dist.] May 5, 2005, pet. ref'd) (mem. op.) (not designated for publication) (same); cf. Welch v. State, 645 S.W.2d 284, 285-86 (Tex.Crim.App. 1983) (holding that trial court erred in overruling defendant's proper request to strike the State's evidence). We overrule issue three. Having overruled all of Laningham's issues, we affirm the trial court's judgment.

1 The State contends — reasonably — that the draft registration analogy was in response to defense counsel's argument that Laningham could not have known what convictions he had and when he was to report as a sex offender. While we find that the prosecutor's argument was not a comment on Laningham's failure to testify, we also note that it was a fair response to defense counsel's argument.

2 When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to determine if the finding of the trier of fact is rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex.Crim.App. 1992). In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).
In a factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). "The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact." Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996)). The appellate court "does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . ." Id. (quoting William Powers and Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 TEXAS L. REV. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called "thirteenth juror" to review the factfinder's weighing of the evidence and disagree with the factfinder's determination. Watson, 204 S.W.3d at 416-17.

3 To the extent Laningham is also arguing that a variance exists between the indictment and the evidence, we disagree. See Sims v. State, 84 S.W.3d 768, 779 (Tex.App.-Dallas 2002, pet. ref'd).

4 See COLO. REV. STAT. § 18-1.3-401 (providing for five felony classes); id. § 18-3-401(2) (providing for class 4 felony sexual assault); id. § 18-2-101(4) (providing that criminal attempt to commit class 4 felony is class 5 felony).