Opinion
NUMBERS 13-13-00638-CR
03-10-2016
JACOB MUSICH, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Memorandum Opinion by Justice Perkes
Appellant Jacob Musich appeals his convictions for aggravated kidnapping and aggravated sexual assault of a child, both first-degree felonies. See TEX. PENAL. CODE ANN. §§ 20.04, 22.021 (West, Westlaw through 2015 R.S.). The jury found appellant guilty on both counts, and assessed punishment at ninety-nine years' imprisonment for the aggravated kidnapping count, and life imprisonment for the aggravated sexual assault count, with the sentences to run concurrently. By one issue, appellant argues the trial court erred by refusing to grant appellant's motion for mistrial. We modify the trial court's judgment and affirm the judgment as modified. See TEX. R. APP. P. 43.2(b).
I. BACKGROUND
During the guilt-innocence phase of the trial, appellant pleaded guilty to committing the offenses of aggravated kidnapping and aggravated sexual assault of a child. The jury subsequently found appellant guilty of both offenses and the case proceeded to the punishment phase before the jury.
During the closing arguments in the punishment phase, the prosecutor made references to appellant's race. First, the prosecutor said: "He's white. He doesn't have tattoos, he's not in a gang." Then, the prosecutor said: "And because he's white and he doesn't have tattoos and he doesn't have any official criminal history, it kind of makes things worse." The prosecutor also quoted appellant's co-defendant by saying: "Look at me. I'm so non-threatening. I'm white. I've got blonde hair. I can get away with anything." Appellant did not object to any of the prosecutor's comments.
Appellant first expressed his concerns about the prosecutor's comments after the final arguments had concluded and the jury retired to the jury room to begin deliberations. Specifically, appellant moved for a mistrial complaining that the complainant's father exhibited an emotional outburst during the closing argument, and that the prosecutor referred to appellant's race. The State responded by acknowledging that she mentioned appellant's race, but explaining that she quoted appellant's co-defendant "in order to hit the point home to the jury that these don't look like criminals." She also asserted that her mention of appellant's race was a summation of evidence. The trial court denied appellant's motion for a mistrial.
Appellant only complains about the alleged improper closing argument on appeal. --------
II. MISTRIAL
By his sole issue, appellant argues the trial court committed reversible error when it refused to grant his motion for mistrial. Specifically, appellant alleges the prosecuting attorney engaged in egregious misconduct and repeated race-baiting. The State responds that appellant failed to preserve his complaint for review on appeal.
A. Preservation
Preservation of error is a systemic requirement that a first-level appellate court should ordinarily review on its own motion. See Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007) (citing Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex. Crim. App. 2007)). To preserve error, an appellant must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a); see Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). In accordance with Rule 33.1, a motion for mistrial must be both timely and specific. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (en banc). A motion for mistrial is timely only if it is made as soon as the grounds for it become apparent. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994) (en banc); Williams v. State, 427 S.W.2d 868, 873 (Tex. Crim. App. 1967).
In Griggs v. State, the Texas Court of Criminal Appeals discussed preservation of a motion for mistrial. See Griggs, 213 S.W.3d at 927. There, the grounds for appellant's motion for mistrial first became apparent during a witnesses' testimony, but appellant failed to move for a mistrial until after the conclusion of the testimony. Id. In holding that appellant's motion for mistrial was untimely, the court explained that during the testimony appellant could have (1) asked to approach the bench, (2) asked the trial judge to excuse the jury, (3) objected to the testimony, (4) asked the trial judge to instruct the witnesses not to mention extraneous offenses, (5) requested a curative instruction, and (6) moved for a mistrial if he believed no instruction could be effective. Id. The court further noted that "[i]f a party delays [his] 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 the untimely motion for mistrial than on an untimely objection." Id. (citing Young, 137 S.W.3d at 70).
B. Analysis
Appellant did not move for a mistrial until after the conclusion of the State's closing argument and the jury had retired to deliberate. Moreover, appellant moved for mistrial based on three separate comments from the State that, although they were in close temporal proximity, could have been stopped by a timely objection from appellant and instruction by the trial court. Without an objection to the first mention of appellant's race, the State made two more comments pertaining to race, leading to culmination of the allegedly prejudicial and improper argument. While we acknowledge that the focus of the State's argument may not have been apparent at the first mention of appellant's race, it was apparent soon after, once the State made the two additional comments. Appellant's motion for mistrial was untimely and unpreserved. See Griggs, 213 S.W.3d at 927.
"However, Texas Rule of Evidence 103(d) provides that, '[i]n a criminal case, nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.'" McLean v. State, 312 S.W.3d 912, 915 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting TEX. R. EVID. 103(d)); accord Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (en banc). Even assuming that the State's infusion of race as a factor was erroneous, we cannot conclude that such error was fundamental. In Saldano v. State, which involved the introduction of testimony regarding ethnicity and recidivism in a death penalty case, the court of criminal appeals explained:
That the State refrain from introducing evidence that violates the defendant's rights under the Equal Protection Clause is neither an absolute, systemic requirement nor a right that is waivable only. We have consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. This is true even though the error may concern a constitutional right of the defendant. Specifically, a defendant's failure to object to testimony prevents his raising on appeal a claim that the testimony was offered for the sole purpose of appealing to the potential racial prejudices of the jury.Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (en banc) (citations omitted). Though Saldano involves purported racially biased witness testimony rather than an alleged improper jury argument, its analysis is instructive. See id. Likewise, an improper jury argument that may appeal to potential racial prejudices of the jury must be preserved through an objection. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) ("A defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal."). Therefore, we may not address appellant's issue as fundamental error.
III. REFORMATION OF JUDGMENT
The judgment on appeal incorrectly states that appellant pleaded not guilty. An appellate court may reform a trial court's judgment to make the record speak the truth when it has the necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Torres v. State, 391 S.W.3d 179, 185 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). We hold that the judgment should be modified to reflect that appellant pleaded "guilty."
IV. CONCLUSION
We modify the trial court's judgment as stated herein and affirm the judgment as modified.
GREGORY T. PERKES
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 10th day of March, 2016.