Opinion
NUMBER 13-13-00349-CR
01-21-2016
ADRIAN BARRERA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 138th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
Appellant Adrian Barrera appeals his conviction for murder, a first-degree felony, and corresponding sentence of twenty-five years' imprisonment. See TEX. PENAL CODE ANN. § 19.02(b). By eight issues, which we re-order and treat as six issues, Barrera asserts that: (1) the evidence is insufficient to prove that he acted intentionally; (2) the jury charge was erroneous; (3) the trial court erred by not allowing his expert witness to testify; (4) his Sixth Amendment right to an impartial jury was denied because the voir dire panel was improperly informed on the range of punishment; (5) the State committed error during the punishment phase of trial by commenting on his right to remain silent during the guilt-innocence phase of trial; and (6) the trial court erred by not sua sponte recusing itself from this case. We affirm.
I. BACKGROUND
On November 12, 2011, Harlingen police officers were dispatched to a shooting on Knox Avenue. Upon their arrival, officers discovered twenty-seven-year-old Ramiro Barron II's body lying "motionless" and "unresponsive" on the curb of the street. Barron was later pronounced dead at Valley Baptist Medical Center. Forensic pathologist, Elizabeth Miller, M.D., conducted an autopsy and found two gunshot entrance and exit wounds on Barron's body. Dr. Miller further testified that Barron had another wound on his body from a "grazed gunshot." Dr. Miller opined that Barron died from a gunshot wound to the abdomen.
At the scene, police recovered three .40 caliber shell casings. Additionally, police received information that a Chevrolet pickup with a "tool box in the bed" and "aftermarket fog lights on the front" of the vehicle was involved in the shooting. Utilizing traffic cameras in the area, police identified and located a vehicle matching the description at twenty-six-year-old Barrera's residence in Rio Hondo. Harlingen police later obtained a search warrant of Barrera's residence and seized, among other things, a .40 caliber handgun and a Bursa 9-millimeter handgun with two magazines from Barrera's bedroom.
Jesus Hernandez testified that earlier in the day on November 12, 2011, Hernandez and Aurora Garcia, his girlfriend at the time, had been at Garcia's house when Barron stopped to visit. Barron and Garcia were cousins. Hernandez admitted to possessing a 9-millimeter handgun that day, a handgun, which, according to Hernandez belonged to Barrera, his longtime friend. At the Garcia home, Hernandez showed the handgun to Barron, who handled the gun, but never returned it to Hernandez. According to Hernandez, Barron simply took the 9-millimeter handgun and walked out of the Garcia house to an unknown location. Hernandez testified that after that incident, he called Barrera asking Barrera to give him and Garcia a ride back to Hernandez's house. Barrera agreed. Hernandez testified that when Barrera drove up, Jesus Collazo was seated in the front passenger seat of the pickup and that he and Garcia entered the pickup and sat in the rear passenger seats.
Once inside of the truck, Hernandez told Barrera about Barron taking the 9-millimeter pistol, which made Barrera "visibly angry." Hernandez stated that at that point, Barrera demanded that Garcia tell him where he could find her cousin, Barron. After Garcia, who was fourteen years-old at the time, told Barrera where to find Barron, Barrera drove to the Rangerville-area of Harlingen and circled the area for "about 30 to 40 minutes" looking for Barron. Hernandez testified that Barrera eventually found Barron walking down Knox Street, and he confirmed Barron's identity through Garcia. Barrera then pulled up his truck near Barron and lowered his window. According to Hernandez, Barrera asked Barron to help him find his friend's house, but Barron began to walk away. Barrera then pointed the .40-caliber pistol at Barron and demanded that Barron return his 9-millimeter pistol. At that moment, Barron grabbed the 9-millimeter pistol and handed it back to Barrera, who remained seated in the driver's seat of his truck. After receiving the 9-millimeter pistol, Barrera demanded that Barron "get the fuck away" from his truck, but Barron did not move, so Barrera then asked Barron "[didn't] I tell you to get the fuck away from the truck, bitch [?]" Hernandez recalled that at that point, Barron pleaded with Barrera, stating "please don't shoot me, man." Hernandez testified that after Barron's plea to Barrera, Barrera fired one shot at Barron causing Barron to grunt and drop to the street pavement. According to Hernandez, Barrera then fired two more shots before driving away from the scene.
Hernandez testified that as the four drove away from the scene of the shooting, Barrera threatened Collazo, Garcia, and Hernandez and instructed the three of them not to say anything about what had happened to Barron. After receiving Barrera's threats, Hernandez described himself as "scared" and not knowing what to do after witnessing Barrera shoot Barron. "I just froze. I was scared," Hernandez testified. Later that night, the group split up and left to their respective homes. Hernandez denied that he had any knowledge that Barrera was going to shoot Barron, but also admitted that he did not alert the police about the shooting. Hernandez also admitted that when he was initially questioned by police about this incident, he lied to them because he was "scared for [his] life" because Barrera had not yet been arrested for the incident. Finally, Hernandez testified that he was arrested for murder in this case, spent one year in jail, but after he pleaded guilty to another unrelated charge, the murder charge was dismissed.
In her testimony, Garcia, who was sixteen years old at the time of trial, recounted substantially similar events to those testified to by Hernandez. She stated, however, that she did not know that Hernandez possessed the 9-millimeter pistol that day or that Barron had taken the pistol from Hernandez until after she and Hernandez were inside of Barrera's truck and Hernandez told Barrera about it being taken away from him. Garcia recalled that Barrera demanded that she tell him where to find her cousin, Barron, or "he was going to kill me and my family." Garcia testified that she did not know why Barrera shot Barron because Barron had returned the pistol to Barrera. She also testified that Barron never threatened Barrera, and she observed that Barron was "scared for his life" because "he had a gun pointed to his head" despite the fact that he had returned Barrera's gun. Like Hernandez, Garcia admitted she had lied to the police during initial questioning because she was scared. Finally, Garcia was also charged with murder related to this case, but the charge was dropped.
Collazo admitted that he was a passenger in Barrera's truck at the time of the shooting, along with Barrera, Hernandez, and Garcia. Collazo also testified that he heard Hernandez accuse Barron of stealing Barrera's handgun. Collazo recalled that Barrera located Barron on the street, Barron returned Barrera's 9-millimeter pistol upon Barrera's demand, and then Barron pleaded with Barrera to not kill him. Collazo testified that Barron was walking away from the truck when Barrera fired a shot at him. Collazo labeled the shooting as a "rage shooting" because Barrera was "angry." Like the other passengers, Collazo stated that he was charged with murder, but the charge was dismissed.
The jury ultimately found Barrera guilty of Barron's murder and sentenced him to twenty-five years' imprisonment with the Texas Department of Criminal Justice's Institutional Division. This appeal followed.
II. SUFFICIENCY CHALLENGE
By his fourth issue, which we address first, Barrera contends that the evidence is insufficient to establish that he acted intentionally because the basis for this finding is opinion testimony offered by Garcia and Collazo.
A. Standard of Review and Applicable Law
In reviewing sufficiency of evidence to support a conviction, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the evidence in the light most favorable to the verdict, we defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. Brooks, 323 S.W.3d at 899. It is unnecessary for every fact to point directly and independently to the guilt of the accused; it is enough if the finding of guilty is warranted by the cumulative force of all incriminating evidence. Winfrey, 393 S.W.3d at 768.
The elements of the offense are measured as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. Under a hypothetically correct jury charge, Barrera is guilty of murder if he intentionally or knowingly caused Barron's death. See TEX. PENAL CODE ANN. § 19.02(b).
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. TEX. PENAL CODE ANN. § 6.03 (West, Westlaw through 2015 R.S.). Intent is most often proven through the circumstantial evidence surrounding the crime, and the jury may infer the requisite intent from the acts, words, conduct of the accused, the method of committing the crime, and the nature of the wounds inflicted on the victim. Zuniga v. State, 393 S.W.3d 404, 412 (Tex. App.—San Antonio 2012, pet. ref'd). Furthermore, if a deadly weapon is used in a deadly manner, the inference of intent to kill is almost conclusive. Watkins v. State, 333 S.W.3d 771, 781 (Tex. App.—Waco 2010, pet. ref'd) (citing Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993)). Evidence that the defendant arrived at the scene of a crime carrying a loaded weapon is probative of deliberate conduct. Adanandus, 866 S.W.2d at 216. Finally, when a deadly weapon is fired at close range and death results, the law presumes an intent to kill. Watkins, 333 S.W.3d at 781.
B. Discussion
Barrera argues that the State's only evidence to establish intent was through legal conclusions elicited from Collazo and Garcia's testimony. He directs us to our holding in Klein v. State for support. See 662 S.W.2d 166, 168 (Tex. App.—Corpus Christi 1983, no pet.). In Klein, we held that an objected-to witness's opinion testimony regarding the defendant's culpable mental state was an ultimate fact question for the jury's determination. Id. Nevertheless, we concluded that any error was harmless because the conclusion expressed by the witness was a reasonable inference from his prior testimony regarding the defendant's conduct and the jury could not have logically reached a different conclusion. Id.
Turning to the evidence in this case, the State questioned Collazo regarding Barrera's intent as shown by the following exchange:
Q. Okay. In fact, it was intentionally, right?A similar exchange took place between the State and Garcia:
A. Yes.
Q. He knew what he was doing?
A. He knew exactly what he was doing.
Q. He didn't shoot just one time, right?
A. No.
Q. You heard multiple shots?
A. Yes.
Q. [Once] is an accident. More than once is obviously on purpose?
A. Yes.
Q. Did he shoot him intentionally?
A. Yes.
Q. Did he know what he was doing?
A. Yes.
Q. Okay. He didn't think he was shooting something else, right?
A. No.
Q. And at the time of the shooting happened, do you remember how Adrian's mental—how he was acting? What was he his emotions like?
A. Upset. Angry.
Q. Was he yelling?
A. At [Barron].
First, we note that unlike in Klein, Barrera's counsel failed to object to the State's questioning, and a failure to object to erroneously admitted evidence amounts to the waiver of the issue on appeal. See TEX. R. APP. P. 33.1; Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003).
However, even assuming that Barrera objected to the complained-of testimony and it was erroneous, we would hold such error harmless. The evidence shows that Barrera was enraged at Barron for taking his 9-millimeter pistol from Hernandez and that he demanded to know Barron's whereabouts from Garcia. After driving around Harlingen for approximately half an hour, Barrera located Barron and demanded that Barron return his 9-millimeter pistol by pointing a loaded .40 caliber firearm at him. After Barron complied and returned the pistol to Barrera, Barrera instructed Barron to get away from his vehicle, shot Barron twice in the back, and fired a third round that missed Barron. We hold that this evidence was sufficient to allow the jury to infer Barrera's requisite intent from his acts, words, and conduct, the method of committing the crime, and the nature of the wounds inflicted on the victim. See Zuniga, 393 S.W.3d at 412; Watkins, 333 S.W.3d at 781. Barrera's fourth issue is overruled.
III. JURY CHARGE
By his first, third, and sixth issues, which we address together, Barrera complains that the trial court's jury charge amounted to reversible error.
A. Standard of Review
Our first duty in analyzing a jury-charge issue is to determine whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). If we find error, we analyze it for harm. Id. The degree of harm necessary for reversal depends on whether the error was preserved by requesting the proposed jury instruction. See Oursbourn v. State, 259 S.W.3d 159, 168-69 (Tex. Crim. App. 2008) ("[T]he defense must request a jury instruction before any error can result."). If the error was preserved by objection, we will reverse if we find "some harm" to the defendant's rights. "Some harm" means any harm, regardless of degree. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (en banc); see Atkinson v. State, 934 S.W.2d 896, 897 (Tex. App.—Fort Worth 1996, no pet.). Under a "some-harm" analysis, we are obligated to determine whether the error was "calculated to injure the rights of the defendant." See Arline, 721 S.W.2d at 352. We consider the harmfulness of the error in the context of the entire record. Id. If no objection was made, we will reverse only if the record shows "egregious harm" to the defendant. Ngo, 175 S.W.3d at 743.
B. Discussion
1. Accomplice Instruction
By his first issue, Barrera argues that the trial court erred by failing to provide the jury with an accomplice witness instruction because Hernandez, Collazo, and Garcia were accomplice witnesses as a matter of law due to their prior indictments for murder related to this case. We disagree.
An accomplice is a person who participates in the offense before, during, or after its commission with the requisite mental state. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). Presence at the crime scene does not make a person an accomplice; an accomplice must have engaged in an affirmative act that promotes the commission of the offense that the accused committed. Id. The evidence in each case will dictate whether an accomplice as a matter of law or fact instruction is required. Id. When the evidence clearly shows (i.e., there is no doubt) that a witness is an accomplice as a matter of law, the trial judge must instruct the jury accordingly. Id. (citing Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987)); see Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006) ("If a witness is an accomplice as a matter of law, the trial court is required to provide an accomplice-witness instruction to the jury.").
A witness who is indicted for the same offense or a lesser-included offense as the accused is an accomplice as a matter of law. Id. But if the State dismisses the indictment before the witness testifies, the witness is no longer deemed an accomplice as a matter of law. Id. A witness continues to be regarded as an accomplice, however, if the witness agrees to testify against the accused in exchange for the dismissal of the charge. Id. When there is doubt as to whether a witness is an accomplice (i.e., the evidence is conflicting), then the trial judge may instruct the jury to determine a witness's status as a fact issue. Smith, 332 S.W.3d at 439-40. Finally, when the evidence clearly shows that a witness is not an accomplice, the trial judge is not obliged to instruct the jury on the accomplice witness rule—as a matter of law or fact. Id. at 440. The charge of the court must distinctly set forth the law applicable to the case, not express any opinion as to the weight of the evidence, not summarize the testimony, or discuss the facts or use any argument calculated to arouse the sympathy or excite the passions of the jury. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw through 2015 R.S.).
Here, Hernandez, Collazo, and Garcia each admitted that they were respectively indicted for murder in this case. However, each witness also testified that their respective murder charges were dismissed and that nothing was promised to them in exchange for the dismissal. See Smith, 332 S.W.3d at 439. Furthermore, nothing in the evidence conflicts with these facts to cast doubt on either witness's status. See id. Therefore, we hold that the trial court did not err in denying Barrera's proposed accomplice-witness instruction. See id.
In the alternative, Barrera argues that the trial court violated his rights under the Confrontation Clause by denying his counsel the right to impeach Hernandez, Collazo, and Garcia regarding their previous charges in this case. In support of this argument, Barrera cites Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986), Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997), and Alexander v. State, 949 S.W.2d 772, 774 (Tex. App.—Dallas 1997, pet. ref'd). Assuming this argument was preserved for our review, we find Barrera's argument unpersuasive and the cases he cites distinguishable. Van Arsdall dealt with a situation in which the trial court prohibited "all inquiry" into the possibility that the witness would be biased as a result of the State's dismissal of a public drunkenness charge. See 475 U.S. at 679. Such a situation was not present in this case because the trial court allowed Barrera to question Hernandez, Collazo, and Garcia about the previous charges and dismissals in this case. In Lagrone, the trial court denied the defendant's counsel the ability to cross-examine a witness about specific-conduct evidence related to drug use, but the instant case does not deal with specific-conduct evidence to attack a witness's credibility. See S.W.2d at 613-14. Finally, in Alexander, the Dallas Court held that the trial court committed harmful error by not allowing the defense to question a police-officer witness about the witness's motive to falsely accuse the defendant of driving while intoxicated based on a directive issued by the police department related to a quota system for DWI arrests. See 949 S.W.2d at 774-77. In this case, however, the trial court did not prevent Barrera from cross-examining Hernandez, Collazo, or Garcia about the previous charges and whether anything was offered in exchange for their testimony. Barrera's first issue is overruled.
2. Manslaughter Instruction
Barrera next argues that the trial court erred by denying a charge on the lesser-included offense of manslaughter. See TEX. PENAL CODE ANN. § 19.04(a) (West, Westlaw through 2015 R.S.).
Determining whether a defendant is entitled to a lesser-included-offense instruction requires a two-part analysis. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). First, we decide whether the offense contained in the requested instruction is a lesser-included offense of the charged offense. Id. If it is, then we decide whether the admitted evidence supports the instruction. Id. Here, the State concedes that manslaughter is a lesser-included offense of murder, so we now turn to the evidence and determine whether it supports the instruction.
A person commits manslaughter if he recklessly causes the death of an individual. TEX. PENAL CODE ANN. § 19.04(a). A person acts recklessly or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. Id. § 6.03(c). The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. Id.
Barrera argues that based on the definition of reckless, the evidence supported a manslaughter instruction because Collazo specifically testified that Barrera "got mad" and "went off" on Barron for not moving away from Barrera's truck. We disagree. As discussed previously, use of a deadly weapon in a deadly manner provides for a conclusive inference of intent, see Watkins, 333 S.W.3d at 781, and evidence that the defendant arrived at the scene of a crime carrying a loaded weapon is also probative of deliberate conduct. See Adanandus, 866 S.W.2d at 216. Furthermore, when firing a deadly weapon at close range and death results, the law presumes an intent to kill. Watkins, 333 S.W.3d at 781. All of these factors are present in the evidence of this case. Therefore, we conclude that the evidence in this case does not support a manslaughter instruction. Barrera's third issue is overruled.
3. Sudden-Passion Instruction
By his sixth issue, Barrera argues that the trial court erred by not instructing the jury during the punishment phase of trial as to sudden passion.
At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.TEX. PENAL CODE ANN. § 19.02(d). An appellate court's duty is to look at the evidence supporting the charge of sudden passion, not the evidence refuting it. Beltran v. State, ___S.W.3d___, 2015 WL 5955015, at *7 (Tex. Crim. App. Oct. 14, 2015). Even if the evidence is weak or impeached, a defendant is entitled to the sudden-passion charge even if it is contradicted by the State's evidence. Id. If there is "some" evidence that a defendant acts with sudden passion, he is entitled to the charge. Id. To justify a jury instruction on the issue of sudden passion at the punishment phase, the record must at least minimally support an inference: (1) that the defendant in fact acted under the immediate influence of a passion such as terror, anger, rage, or resentment; (2) that his sudden passion was in fact induced by some provocation by the deceased or another acting with him, which provocation would commonly produce such a passion in a person of ordinary temper; (3) that he committed the murder before regaining his capacity for cool reflection; and (4) that a causal connection existed between the provocation, passion, and homicide. Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013).
We look to Barrera's own testimony during his punishment trial to determine whether he met his burden to include a sudden-passion instruction. Barrera testified that Barron was "jumpy" and "fidgety" when Barrera pulled up his truck next to him. Barrera also testified that Barron began reaching into his waistline, which made Barrera "scared" and caused him to reach for his own loaded .40 caliber pistol and point it at Barron. Barrera further testified that Barron eventually returned the 9-millimeter pistol to Barrera and stepped away from Barrera's truck, but then made a quick movement as Barrera continued to point his .40-caliber pistol at him. Barrera told jurors that he interpreted Barron's movement as an attempt to grab another pistol in his possession, which caused Barrera to fire shots at Barron.
When weighing this evidence against the Wooten factors, we conclude that Barrera failed to meet his burden to entitle him to a sudden-passion instruction. See id. Although there is some evidence showing that Barrera potentially acted under "terror" because he was scared of Barron and that Barrera killed Barron before regaining a capacity for cool reflection, nothing in the record shows that Barron provoked Barrera to shoot him or that a causal connection existed between the provocation and the homicide. Seeid. As a result, we hold that the trial court did not err by denying Barrera's request for a sudden-passion instruction in the punishment trial's jury charge. Barrera's sixth issue is overruled.
4. Summary
In summary, the trial court did not err in the charges it provided to jurors in either phase of Barrera's bifurcated trial. We overrule Barrera's first, third, and sixth issues.
IV. ADMISSIBILITY OF EXPERT TESTIMONY
By his second issue, Barrera asserts that the trial court erred by denying his counsel's request to allow expert witness Thomas Gonzalez to testify as to Barrera's state of mind pursuant to article 38.36 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.36. A.Standard of Review
We review a trial court's decision regarding the admissibility of evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). We will uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Id. We may not reverse a trial court's admissibility ruling solely because we disagree with the decision. Id.
B. Discussion
Barrera argues that the trial court erred by not allowing his expert witness to testify during the guilt-innocence phase of trial and cites article 38.36 of the code of criminal procedure to support his argument.
The relevant portion of article 38.36 states the following:
(b) In a prosecution for murder, if a defendant raises as a defense a justification provided by Section 9.31, 9.32, or 9.33, Penal Code, the defendant, in order to establish the defendant's reasonable belief that use of force or deadly force was immediately necessary, shall be permitted to offer:TEX. CRIM. PROC. CODE ANN. art. 38.36 (West, Westlaw through 2015 R.S.).
(1) relevant evidence that the defendant had been the victim of acts of family violence committed by the deceased, as family violence is defined by Section 71.004, Family Code; and
(2) relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense, including those relevant facts and circumstances relating to family violence that are the basis of the expert's opinion.
In making its ruling, the trial court concluded that article 38.36 was inapplicable to this case. We agree. In order for expert testimony concerning the mental state of the accused at the time of the offense to be admissible, the expert must base his opinion in large part on the history of domestic violence between the defendant and the decedent. Avila v. State, 954 S.W.2d 830, 841 (Tex. App.—El Paso 1997, pet. ref'd). The record in this case is devoid of any evidence of any domestic violence taking place between Barrera and Barron. Therefore, Gonzalez's testimony regarding Barrera's state of mind is inadmissible, and the trial court did not err in making such a ruling. Barrera's second issue is overruled.
V. RIGHT TO AN IMPARTIAL JURY
By his fifth issue, Barrera asserts that the trial court erred by denying his motion for mistrial because the State's prosecutor and defense attorney misstated the range of punishment available in this case. A. Standard of Review
We utilize the motion-for-mistrial standard of review for this issue because when the error regarding the misstatement of the punishment range was uncovered at trial, Barrera's counsel moved for a mistrial, as shown by the following exchange:
[Defense Counsel]: That being the case, Your Honor, I would move for a mistrial. The jury during voir dire -- during the State's voir dire and even instructions from the court as to whether they can consider a full range of punishment were explained that the range of punishment is 5 to life including probation. That was what the State voir dired this jury on.
THE COURT: Okay. I'm going to deny the motion for mistrial.
A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Id. A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. Id.
B. Discussion
As a preliminary matter, the State concedes, and we agree, that the voir dire panel was given an incorrect range of punishment by counsel for the State and counsel for the defendant. Thus, the appropriate inquiry under this issue is not one of whether error exists, but whether it was harmful error and whether the trial court abused its discretion by denying Barrera's motion for mistrial. Although Barrera's appellate brief advances this issue as one of constitutional dimension under the Sixth Amendment's right to an impartial jury, see U.S. CONST. amend. VI, the case law holds otherwise. See Brown v. State, 468 S.W.3d 158, 166-67 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (holding that misstatements of law made during voir dire examination requires reversal only if the appellant demonstrates harm under a non-constitutional error harm analysis); Thompson v. State, 95 S.W.3d 537, 542-43 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (same); see also TEX. R. APP. P. 44.2(b) ("[Non-constitutional errors] that [do] not affect substantial rights must be disregarded.") Having found no contrary authority, we will examine the error in this case in the same manner. Substantial rights are affected when the error has the effect of substantially influencing the jury in reaching its verdict. Brown, 468 S.W.3d at 167.
After evaluating the voir dire record, both the State's and Barrera's attorneys inquired into whether the jury could consider the full range of punishment, including probation. The State's prosecutor mentioned probation in terms of the murder charge, and Barrera's attorney discussed the range of punishment with the voir dire panel, including lesser-included offenses, that could have merited probation and possibly have been included in the jury charge. Therefore, we cannot determine whether the issue of probation related to the present offense, which was misstated, or related to other potential lesser-included offenses that were discussed by the defendant's trial counsel. Furthermore, the jury is presumed to have understood and followed the court's charge, absent evidence to the contrary. See Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996). The record shows that the trial court's ultimate jury charge on the issue of punishment correctly stated the range of punishment for murder, a first-degree felony. See TEX. PENAL CODE ANN. § 12.32(a) (West, Westlaw through 2015 R.S.). Accordingly, we conclude that the misstatements of the range of punishment during voir dire did not affect Barrera's substantial rights, and we hold that the trial court did not abuse its discretion by denying Barrera's motion for mistrial on this ground. Barrera's fifth issue is overruled.
VI. QUESTIONING DURING PUNISHMENT
By his seventh issue, Barrera asserts that the State committed reversible error by commenting on his right to remain silent during the punishment phase of his trial.
As a threshold matter, the State argues that Barrera has not properly preserved this issue for appellate review. We agree in part and disagree in part. Barrera specifically complains about two lines of questioning by the State's prosecutor, which were objected to by defense counsel and sustained by the trial court. In the first line of questioning, Barrera moved for a mistrial, and the motion was denied by the trial court. Accordingly, we conclude that this particular line of questioning was preserved for our review. The other line of questioning, however, was not properly preserved for our review because Barrera's trial counsel's objection at trial did not comport with his issue now on appeal. See TEX. R. APP. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). We will address only the portions of the questioning by the State that were preserved for our review. --------
A. Standard of Review and Applicable Law
We apply the standard of review for the denial of a motion for mistrial as set forth in Part V(A) of this opinion.
A comment on a defendant's post-arrest silence violates the Fifth Amendment prohibition against self-incrimination. Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995) (citing Doyle v. Ohio, 426 U.S. 610, 617-18 (1976)); Miranda v. Arizona, 384 U.S. 436, 468 n. 37 (1966)). A comment on a defendant's post-arrest silence is akin to a comment on his failure to testify at trial because it attempts to raise an inference of guilt arising from the invocation of a constitutional right. Id. at 356. Moreover, the prohibition against commenting on post-arrest silence includes testimony regarding a defendant's contrition or remorse because such testimony can only come from the defendant. Id. (internal citations omitted). An impermissible comment on a defendant's post-arrest silence is not grounds for an automatic reversal, but is subject to a harm analysis pursuant to rule of appellate procedure 44.2(a). Id. For an error of constitutional magnitude such as the one before us, we will reverse unless we determine beyond a reasonable doubt that the error did not contribute to the punishment. TEX. R. APP. P. 44.2(a).
B. Discussion
Barron preserved error with regard to the following two exchanges with the State's prosecutor during the punishment phase of his trial:
Q. You've played this whole process to what you thought was best for you didn't you?
A. No.
Q. So are you telling these Ladies and Gentlemen of the Jury that what you call the truth now that it was self-defense, that shooting Ramiro Barron in the back three times, not once, not twice, but three times was better for them to hear at punishment and not at guilt and innocence?
A. I don't want to look at that picture.
Q. I'm not showing it to you. I'm showing it to the jury. And what you want or don't want is not the issue here.
THE COURT: Just ask your question, [Prosecutor].
[Prosecutor]: Yes, Your Honor.
Q. Do you understand my question?
A. No.
Q. Your counsel has counseled you from day one, from the shooting, correct?
A. Can you reword that? I don't understand the question.
Q. Your attorney . . . has advised you from the day of the shooting, correct?
A. All he told me was not to talk to anyone about it.
Q. But he has advised you from the day of the shooting?
A. Advised me of what?
Q. Not to talk to anyone.
A. Yes, that's true.
Q. And you have sat here and watched everybody come and testify in front of this jury?
A. Yes.
Q. Correct?
A. Yes.
Q. And you've known all your rights and you well exercised them, correct?
A. Yes.
Q. And you had a choice before these Ladies and Gentlemen of the Jury found you guilty of murder, for shooting Ramiro Barron in the back, before they found you guilty, you had an option, you had an opportunity to tell them your so-called truth?
A. Yes.
Q. Correct?
A. Yes.
Q. But the truth is you don't believe it yourself, correct?
A. Don't believe what?
Q. Your lies?
A. It's not a lie.
Q. Well then why didn't you tell the Ladies and Gentlemen of the Jury your so called truth—
[Defense Counsel]: Your Honor, I object. He had a fifth amendment right.
THE COURT: Let him finish his question before you object.
Q. Why didn't you tell them before they found you guilty?
The next exchange took place later during cross-examination:[Defense Counsel]: Objection, Your Honor. He has a [Fifth Amendment] right. It's an improper question.
THE COURT: Sustained.
[Defense Counsel]: I move for a mistrial, Your Honor.
THE COURT: Denied.
[Defense Counsel]: Thank you.
Q. And like they, those three witness, they said that after you had the 9-millimeter Bursa in your possession, you shot [Barron] in the back. And you said the same thing.
A. But it's not like how they said.
Q. I'm sorry?
A. It didn't happen the way they said.
Q. So 98 percent of what they say you agree with it's true, two percent
is not true.
A. I don't understand what you are trying to say.
Q. Nor do you understand why you didn't tell the Ladies and Gentlemen of the Jury your truthful story when it made a difference?
[Defense Counsel]: I'm going to object, Your Honor. He had a [Fifth Amendment] right not to take the stand.
[Prosecutor]: And he's waived that because he is on the stand right now.
THE COURT: He is right. Overruled.
[Defense Counsel]: But he is commenting at the time—
THE COURT: He is testifying now.
[Defense Counsel]: I understand.
THE COURT: Overruled.
After reviewing these exchanges, we conclude that the State impermissibly questioned Barrera on his post-arrest silence. Furthermore, such impermissible questioning cannot be waived, as the trial court erroneous concluded. See Sanchez v. State, 707 S.W.2d 575, 577 (Tex. Crim. App. 1986) (en banc) ("As a general rule, when a defendant voluntarily takes the stand before the jury, he is subject to the same rules as any other witness in that he may be impeached, contradicted and cross-examined as to new matters. . . . Where there are overriding constitutional or statutory prohibitions, however, the defendant may not be treated as just another witness. . . . Thus, impeachment of an arrestee by the use of post-arrest, post-Miranda silence violates the arrestee's privilege against self-incrimination and his right to due process under the federal constitution.").
Although we hold that the State's questioning amounted to constitutional error, we nevertheless conclude that such error was harmless. In the State's closing argument, the State's prosecutor did not again mention or emphasize Barrera's decision not to testify during guilt-innocence. Additionally, the State asked jurors to consider assessing a punishment of "nothing less than life or more than 99 [years]" in order to "set a high standard" for the people of Cameron County. The jurors, however, assessed a significantly lower sentence for Barrera at twenty-five years. As a result, we determine beyond a reasonable doubt that the error did not contribute to Barrera's punishment. Barrera's seventh issue is overruled.
VII. TRIAL COURT'S RECUSAL
By his eighth and final issue, Barrera contends that the trial court erred by failing to sua sponte recuse itself because the trial judge was a witness in the case.
Rule of evidence 605 states that "the presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue." TEX. R. EVID. 605. Furthermore, the court of criminal appeals has construed this rule in the following manner:
The language of Rule 605 is unambiguous, and construing this rule according to rules of grammar and common usage leads to only one interpretation of the rule. The phrase "the judge presiding at the trial may not testify in that trial" means that the judge who is presiding over a proceeding may not "step down from the bench" and become a witness in the very same proceeding over which he is currently presiding. Rule 605 addresses only that specific situation; the rule does not encompass any future proceedings in which the judge is participating but not over which the judge is presiding. Moreover, this narrow interpretation of Rule 605 accomplishes the objective of this rule. The judge is a neutral arbiter in the courtroom, and the rule seeks to preserve his posture of impartiality before the parties and particularly in the eyes of the jury.Hensarling v. State, 829 S.W.2d 168, 170-71 (Tex. Crim. App. 1992) (emphasis in original).
Here, the source of Barrera's issue on appeal is the following statement made by the trial court during a pre-trial hearing on the issue of whether Hernandez, Collazo, and Garcia were conspirators in this case:
THE COURT: I guess part of my concern is whether or not any of this stuff since I was part of the in chambers conference on the issue of the writ of habeas corpus whether I or, you know, am I potential witness on that. Procedurally, it's starting to worry me. That's procedurally—it's starting to worry me.
We agree with the State that the trial court's statement did not rise to the level of testimony or evidence in the instant proceeding to make it a witness. The trial court was merely verbalizing his internal thought process and questioning whether he could potentially be a witness, if at all, in this case. See State v. Stewart, 282 S.W.3d 729, 738 (Tex. App.—Austin 2009, no. pet.) (recognizing the "significant distinction between a trial judge testifying as a fact witness during a trial and a trial judge recalling . . . his own internal thought processes"). Accordingly, we overrule Barrera's final issue.
VIII. CONCLUSION
We affirm the trial court's judgment.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 21st day of January, 2016.