No. 01-06-01191-CR
Opinion issued March 20, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 1047750.
Panel consists of Justices TAFT, KEYES, and ALCALA.
EVELYN V. KEYES, Justice.
A jury found appellant, Maurice J. Long-Edwards, guilty of murder and assessed his punishment at confinement for life. In two points of error, appellant argues that the trial court erred (1) in refusing to instruct the jury on voluntary conduct and (2) in denying his motion for mistrial based on improper jury argument by the State. We affirm.
Background
On November 19, 2005, appellant bought a cigar from a Valero convenience store. The store clerk, Hassan Elgharib, testified that appellant paid with coins that he took from his pocket. Approximately 45 minutes later, appellant returned to the store and told Elgharib that he had left his wallet. When Elgharib told appellant that he had not seen a wallet, appellant became angry and asked to use the store's phone to call 911. Elgharib allowed appellant to use the phone, but he noted that appellant did not call 911 because he dialed more than three numbers, then went outside to finish his call. Eventually, appellant returned to the store, threw the phone down on the counter, and left. After appellant left the store for the second time, Johnny Ray Davis, the complainant, arrived at the store to help Elgharib arrange the beer cooler. Davis regularly worked at the store as a helper for the clerks. Approximately 20 minutes later, appellant returned to the store for a third time. Appellant, who was carrying a shotgun, walked up to Davis and demanded that Davis return appellant's wallet. Testimony regarding the exact statements varied slightly, but all accounts report that Davis denied having the wallet and that appellant threatened to kill Davis. Appellant then shot and killed Davis with the shotgun. The police did not recover appellant's wallet, and they did not find any wallet on Davis's body. Elgharib was standing behind the counter during the exchange between appellant and Davis. He testified that at first he was too shocked to move, but when he saw that appellant had shot Davis, he decided that he had to "do what [he had] to do." He testified that the store had a .45 caliber handgun for the clerk to use if he ever saw a weapon or felt threatened. He got the handgun from under the counter, but it took "a little while" because it had to be loaded. He testified that he then shot over the counter in appellant's direction. After hearing Elgharib's testimony, appellant's trial counsel responded, "All right. In fact, you shot the gun before [appellant] fired his shotgun, didn't you?" Elgharib answered, "No. After." Appellant established that Elgharib did shoot appellant in the arm and in the abdomen. While questioning Elgharib regarding his motivation for shooting appellant, appellant's trial counsel asked whether appellant had fired a shot at Elgharib where he stood behind the counter. Elgharib answered, "No. There was a person dead in front of me." Appellant's counsel replied, "I understand that. In fact, [appellant] was simply standing there asking all of you in the store to stay where you were until the police got there, right?" Elgharib answered, "Wrong." Elgharib's testimony was substantially corroborated by the testimony of another eyewitness, William Bibbs, a customer. Delores Brown was a store patron who testified that she saw appellant enter the store with a shotgun as she drove up to the store. She and Bibbs both testified that appellant was holding the shotgun down by his side as he entered the store. Brown testified that she heard a louder first shot, which she thought was the shotgun, then she heard a second shot that sounded different. She also testified that she heard the glass on the front door of the store crack, and she heard another gunshot as she was driving away. On cross-examination, appellant's counsel elicited testimony from Brown that obstructions prevented a clerk at the counter from seeing someone approaching the store from outside. Appellant also questioned Officer J. Wood, who investigated the crime scene, regarding how the .45 caliber casings landed on the rug in front of the counter if Elgharib was shooting from behind the counter. Officer Wood testified that it depended on how Elgharib was holding the handgun, but that the casings could bounce off of the counter itself or off of some other surface. Appellant's counsel said, "The position of the spent .45 casing shown in [in the crime scene photographs] is actually inconsistent with somebody crouching down below the counter and holding the handgun up just this far on the counter." Officer Wood answered, "If that was the purported position of the firearm, it's not impossible, but improbable that the [casings] would have ended up where they are." On re-direct examination, Officer Wood testified that if someone shot at an angle, as Elgharib testified that he did, then that would affect the direction of the shell casings and would be consistent with where they were found. After the State rested, appellant also rested without calling any witnesses. During the charge conference that occurred just before both sides rested, appellant argued that he was entitled to an instruction on voluntary conduct. The State argued that there was no evidence on the record that appellant's actions were involuntary. Appellant responded: I think there's ample evidence in the record from the witnesses[,] from the physical evidence. Particularly[,] I'm talking about the two bullet holes in [appellant]. There are hospital records . . . of [appellant] that have been admitted into evidence showing that he was transported and treated for two bullet holes received or administered by a gunshot. Those gunshots came from the pistol that was fired by [Elgharib]. [Elgharib] testified that he shot twice inside the store. . . . The inference being that he armed — [Elgharib] arm[ed] himself[,] was ready when [appellant] came in the store. And when the gun or the shotgun [appellant] was carrying was raised, then shots were fired. Now, the jury would be free to believe that the first shot came from [Elgharib's] gun. If it did, and the jury so believed, then the reaction from [appellant] holding the shotgun may well have been an involuntary reaction, that is, he may have involuntarily pulled the trigger as he was pointing the shotgun at [the complainant], thereby caused it to discharge and kill [the complainant]. So there's some evidence in the record, regardless of whether the Court believes that evidence, that it could be an involuntary act on the part of [appellant]. The trial court overruled appellant's objection, refusing to include appellant's proposed instruction on voluntary conduct. During closing arguments, appellant's counsel made arguments regarding the voluntariness of appellant's act even though the jury did not receive an instruction on voluntary conduct. Appellant's counsel argued: The State has the burden of proof beyond a reasonable doubt . . . to prove a voluntary act. And [the State] says that pointing a shotgun and pulling the trigger, you know what you're doing at that point. I would submit to you, that's correct, that's right, you know what you're doing if you point the gun and voluntarily pull the trigger. But if you don't voluntarily pull the trigger, if you don't intend at that moment to cause the result, that is, the death of [the complainant], you're not guilty of an offense. I want to talk to you about what the evidence suggests with regard to intent and with regard to voluntary conduct. We talked about voluntary conduct during voir dire. We talked about the fact that if there was some other intervening factor that caused the pulling of the trigger — now you know the case is about pulling the trigger — that caused [appellant] to pull that trigger, then it was not a voluntary act. And so, you would have to believe beyond a reasonable doubt that there was not other intervening factor or circumstance that caused the pulling of that trigger. Appellant's counsel then argued that appellant was shot in the arm by Elgharib as he was raising the shotgun, before appellant fired a shot. Appellant's counsel argued that Elgharib's shot went through appellant's arm and into his stomach and caused appellant to pull the trigger. Appellant's counsel argued that it was an involuntary act that caused the death of the complainant. During its closing argument, the State urged the jury, "When you go back into that jury room, please don't leave your common sense in here, like the defense counsel is hoping you will do. He did a good job of trying to confuse the facts of this case." Appellant's defense counsel objected and stated, "It's just simply striking out at the defendant through counsel, in counsel's performance. That's just — it's an inaccurate statement of the law." The trial court sustained appellant's objection to this argument as improper and instructed the jury to disregard the State's remark. Appellant also asked for a mistrial, which the trial court denied. Analysis
In two points of error, appellant argues that the trial court erred in refusing to instruct the jury on voluntary conduct and in denying his motion for new trial based on improper jury argument by the State. Instruction on Voluntariness
We review jury charge error in a two-step process. Ngo v. State, 175 S.W.3d 738, 744 (Tex.Crim.App. 2005). First, we determine whether error exists in the charge. Id. If there is error, we then review the record to determine whether sufficient harm was caused by the error to require reversal of conviction. Id. When the charging error is preserved, reversal is required unless the error was harmless. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). When the accused has properly objected to the error in the jury charge, reversal is required when an appellate court finds some harm to his rights. Ngo, 175 S.W.3d at 743. Texas Penal Code section 6.01(a) provides, "A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession." Tex. Pen. Code Ann. § 6.01(a) (Vernon 2005). "Voluntariness" refers to one's own physical body movements. Rogers v. State, 105 S.W.3d 630, 638 (Tex.Crim.App. 2003). "If those physical movements are the nonvolitional result of someone else's act, are set in motion by some independent non-human force, are caused by a physical reflex or convulsion, or are the product of unconsciousness, hypnosis or other nonvolitional impetus, that movement is not voluntary." Id. A criminal defendant is entitled to an instruction on every defensive issue that is raised by the evidence. Pierini v. State, 804 S.W.2d 258, 260 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd) (citing Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App. 1987)); see also Rogers, 105 S.W.3d at 637 (treating voluntariness of conduct as defensive issue and stating, "Under the current penal code . . . there is no `defense of accident.' Now the no-voluntary-conduct aspect of that former defense is addressed by Penal Code Section 6.01(a). . . ."). Here, we have found no evidence that raised the issue of the voluntariness of appellant's action in shooting the complainant. Appellant points to evidence establishing the fact that he was shot in the arm. He also points to the testimony of Brown and Bibbs suggesting that the shotgun was down by his side when he walked into the store and Elgharib's testimony that the store kept a handgun under the counter for the clerk to use if he ever saw a weapon or felt threatened. Appellant argues that this evidence taken together could allow the jury to believe that Elgharib actually fired the first shot, causing appellant to pull the trigger involuntarily. However, appellant presented no evidence that Elgharib fired the first shot — all of the witnesses at trial testified that the first shot came from the shotgun fired by appellant and was followed several seconds later by two shots from a handgun fired by Elgharib. The medical evidence did establish that appellant was shot in the arm, but no testimony or forensic evidence suggested that the wound sustained by appellant could have caused any kind of involuntary movement that would have caused appellant to pull the trigger of the shotgun. Thus, no reasonable inference about the voluntariness of the physical movement could be drawn from the mere existence of injury to appellant's arm. Therefore, no jury instruction on voluntary conduct was required. See Pierini, 804 S.W.2d at 260. We overrule appellant's first point of error. Motion for Mistrial
In his second point of error, appellant argues that the trial court erred in denying his motion for mistrial. During jury argument, the State commented, "When you go back into that jury room, please don't leave your common sense in here, like the defense counsel is hoping you will do. He did a good job of trying to confuse the facts of this case." Appellant objected, and the trial court sustained the objection and instructed the jury to disregard the prosecutor's comments. Appellant also requested a mistrial, which the trial court denied. Appellant argues that the State's comments were an attempt to strike at appellant through his counsel. We review a trial court's denial of a motion for mistrial for an abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). A mistrial is proper when the improper conduct is so harmful that the case must be redone. Id. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required. Id. The Court of Criminal Appeals has held that we must balance three factors when analyzing a trial court's denial of a motion for mistrial: (1) the severity of the misconduct, (2) the curative measures, and (3) the certainty of conviction absent the misconduct. Id. at 75, 77 (referring to factors in Mosely v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998), cert. denied, 526 U.S. 1070, 119 S. Ct. 1466 (1999)). Severity of Misconduct
The Court of Criminal Appeals has equated the "severity of the misconduct" with the prejudicial effect of the prosecutor's remarks. Id. at 77 (quoting Mosely, 983 S.W.2d at 259). The Court of Criminal Appeals has cautioned that "a prosecutor runs a risk of improperly striking at a defendant over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel's character." Cole v. State, 194 S.W.3d 538, 544 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (quoting Mosely, 983 S.W.2d at 259). Here, the State commented that appellant's counsel "did a good job of trying to confuse the facts of this case." While this comment does seem to imply that appellant's counsel might have been trying to mislead or trick the jury, we conclude that the comments in this case were only mildly inappropriate. The comments did not directly accuse appellant's counsel of lying, nor did they suggest that any evidence was manufactured. See Mosely, 983 S.W.2d at 260. Curative Measures
In general, an instruction to disregard will cure the error of improper jury argument by the State, unless the State's remark was so inflammatory that its prejudicial effect could not reasonably be overcome by such an instruction. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex.Crim.App. 1994) (citing Kinnamon v. State, 791 S.W.2d 84, 89 (Tex.Crim.App. 1990)). In order for improper argument to absolutely mandate reversal it must be extreme or inject new and harmful facts into the record. Id. As we have already stated, the State's comments here were only mildly inappropriate. Therefore, the trial court's instruction to disregard the State's comments was sufficient to cure the error. See id. Certainty of Conviction
Here, the State had a compelling case against appellant absent the improper comments. Two eyewitnesses testified that appellant entered the convenience store holding a shotgun, demanded that the complainant return appellant's wallet, then shot the complainant. Those two eyewitnesses also testified that Elgharib did not shoot at appellant until after appellant killed the complainant. Another witness, who had pulled up outside the store, testified that she saw appellant enter the store carrying a shotgun, then she heard one loud gunshot followed several seconds later by a different gunshot. She testified that she heard a third gunshot that was similar to the second as she drove away from the store. There is no indication that the jury disbelieved appellant's theory because of the prosecutor's statement that appellant's counsel was attempting to confuse them. In balancing these three factors, we conclude that the misconduct was not so prejudicial that the instruction to disregard was insufficient to cure it and that the State presented abundant evidence for the jury to rely on in convicting appellant absent the improper comments. See Hawkins, 135 S.W.3d at 77. We overrule appellant's second point of error. Conclusion
We affirm the judgment of the trial court.