Opinion
No. 05-02-01273-CR
Opinion issued August 21, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 265th District Court, Dallas County, Texas, Trial Court Cause No. F02-47324-SR. AFFIRMED
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
OPINION
Mark Dewayne Brock appeals his murder conviction. A jury convicted appellant and sentenced him to life confinement and a fine of $10,000. In eleven issues, appellant argues the trial court erred in (1) overruling his various motions for mistrial and his objections to the prosecutor's arguments outside the record, (2) failing to charge the jury on apparent danger, self defense, and defense of a third person,(3) overruling his Batson challenge, and (4) refusing to admit a photograph of the decedent. We affirm the trial court's judgment. Because appellant does not challenge the sufficiency of the evidence to support his conviction, only a brief recitation of the facts is necessary. On January 20, 2002, appellant was involved in an altercation with the decedent, Robert Grayson outside a night club in Dallas. Grayson knocked appellant down, and appellant left the scene. A little while later, appellant came back and shot Grayson once in the head and, when Grayson did not fall, shot him a second time in the head. Appellant then ran away. Appellant was subsequently convicted of murdering Grayson, and this appeal followed. In issues one, two, three, and four, appellant complains the trial court erred in failing to declare a 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. Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). 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. The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Id. The asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard. Id. A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Id. A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. Id. In this case, Kimberly Glover, a friend of both appellant and Grayson, testified she witnessed appellant shoot Grayson. During the State's direct examination of Glover, the prosecutor asked Glover whether, when appellant came up and shot Grayson, Grayson ever saw appellant "come up." Appellant objected that the question called for speculation. The trial court sustained the objection and instructed the jury to disregard the question but denied appellant's motion for a mistrial. Appellant argues this question was designed to suggest appellant shot Grayson while Grayson's back was turned. On the contrary, the question only asked whether Grayson saw appellant come up and made no reference to whether appellant came up from behind. Further, any harm was cured by the trial court's instruction to disregard. See id. We overrule appellant's first issue. William Leon Smith testified he knew both appellant and Grayson. During the State's direct examination of Smith, the prosecutor asked if Grayson was inside the night club that night and whether he would have to have been searched for weapons before he went in the club. Appellant objected that the question was outside Smith's knowledge. The trial court sustained appellant's objection and instructed the jury to disregard but denied appellant's motion for mistrial. Appellant argues the question was designed to suggest that Grayson was unarmed, even though it was not within Smith's personal knowledge whether Grayson was armed. Regardless of whether or not Grayson was armed, the jury had already heard testimony that appellant walked up to Grayson and shot him twice in the head. Further, any harm was cured by the trial court's instruction to disregard. See id. We overrule appellant's second issue. At punishment, Kerrick Byrd testified he was a friend of appellant. Byrd testified he was in a fight at the night club on the night of the murder, and his family then took him to the hospital. On cross-examination, Byrd admitted being convicted of assault, and the prosecutor asked Byrd if he had another assault charge pending. Byrd answered affirmatively, and the prosecutor asked if the pending charge was "against Sandra Burrell." Appellant objected, and the trial court sustained the objection and instructed the jury to disregard but denied appellant's motion for mistrial. Appellant argues the question was designed to create the impression that Byrd was a woman beater who should not be believed about what happened on the night of the murder. However, we conclude any harm from the question was cured by the trial court's instruction to disregard. See id. We overrule appellant's third issue. At punishment, the prosecutor cross-examined appellant and questioned him without objection concerning prior convictions for aggravated assault, discharging a firearm, and evading arrest. The prosecutor then stated, "And now you've killed someone, a first degree felony. You kind of moved right up the line, haven't you?" Appellant objected that this question was argumentative. The trial court sustained the objection and instructed the jury to disregard but denied appellant's motion for mistrial. Appellant argues the question was designed to suggest that appellant was a criminal generally and that he killed a man without justification. We note the jury had just convicted appellant of murder, necessarily finding that appellant killed a man without justification. Further, we conclude the harm, if any, from the question was cured by the trial court's instruction to disregard. See id. We overrule appellant's fourth issue. In his fifth, sixth, seventh, and eighth issues, appellant argues the prosecutor argued outside the record and the trial court reversibly erred in overruling appellant's objections to the arguments. Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deductions drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). To constitute reversible error, the argument must be manifestly improper or inject new, harmful facts into the case. Id. Byrd's hospital records were introduced at guilt-innocence. Appellant complains of the following argument made by the prosecutor:
You see these records, but when you talk about this Kerrick Byrd, if it's him. I'm not really sure. He gives a couple of different versions of what happened in here to the people at the hospital. One time he says he was hit by a guy with a four-by-four. Another time it was a two-by-four. Another time he was kicked.Appellant's counsel objected, contending that the records referred to did not "say who relayed that information." The objection was overruled. Appellant complains the prosecutor's argument inserted new and harmful matter into the trial that was clearly outside the record. Specifically, appellant argues the prosecutor alleged that Byrd said something he did not say. In addition, appellant argues the prosecutor impermissibly stated his personal opinion when he said, "I'm not really sure." Byrd's medical records indicate in different places that he was kicked and struck by a "4X4"and a "2X4." Thus, the inconsistent statements in Byrd's hospital records were already in evidence. We conclude it was a reasonable deduction from the evidence that, in the course of treatment Byrd, may have given differing versions of what happened to him. See id. We overrule appellant's fifth issue. In his closing argument, appellant's counsel raised the issue of why the State did not bring in more witnesses as follows:
There were several other witnesses that were there that night. They named them off. Tree, Drae, Draggy (sic) — several people. Why didn't they bring them here? Ask yourselves that. Why didn't they bring those witnesses? They have the burden of proof. Remember, we talked about it, the State has the burden of proof. We don't. I submit to you they've brought you two poor witnesses.In his subsequent argument, the prosecutor referred to appellant's argument that the State did not bring "all these other witnesses" and stated, "I could have paraded in witness after witness after witness and they all would have said the same thing." Appellant objected that the prosecutor's argument was "outside the scope," but the trial court overruled his objection. Appellant argues the prosecutor's argument was improper because it was outside the record and it deprived him of his right to confront and cross-examine "all the other witnesses." Counsel is permitted to respond to the arguments of opposing counsel. See Jackson, 17 S.W.3d at 673. Even assuming this argument was improper, erroneous rulings on arguments are non-constitutional errors that must be disregarded if they do not affect the defendant's substantial rights. Tex.R.App.P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). We fail to see how appellant's substantial rights were affected by the argument in question. We overrule appellant's sixth and eighth issues. In his closing argument at punishment, the prosecutor urged the jury to send a message to "the community at large" and raised the question, "[W]hat if [appellant] had been a bad shot? What if one of his bullets hadn't hit the victim in this case?" Appellant's counsel objected that "That calls for speculation, arguing outside the record," and the trial court overruled the objection. Appellant argues the prosecutor's arguments improperly appealed to the community at large and there was no testimony to indicate that some other person could have been shot as a result of appellant's conduct. The State may make a proper plea for law enforcement, including arguing the relationship between the jury's verdict and the deterrence of crime in general, arguing that juries should deter specific crimes by their verdicts, and arguing the impact of the jury's verdict on the community. Rodriguez v. State, 90 S.W.3d 340, 365 (Tex.App.-El Paso 2001, pet. ref'd); see Borjan v. State, 787 S.W.2d 53, 55-56 (Tex.Crim.App. 1990). Thus, the prosecutor's reference to the "community at large" was a proper plea for law enforcement. See Rodriguez, 90 S.W.3d at 365. Further, the record contains testimony that many witnesses were present at the night club when Grayson was shot, and it is a reasonable deduction from the evidence that someone else could have been shot if appellant had missed. See Jackson, 17 S.W.3d at 673. We overrule appellant's seventh issue. In his ninth issue, appellant argues the trial court erred in failing to charge the jury on apparent danger, self defense, and defense of a third person. A person is justified in using force against another in self defense 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. Tex. Pen. Code Ann. § 9.31(a) (Vernon Supp. 2003). If a person uses deadly force, as in this case, his conduct is justified if (1) he would be justified in using force in self defense, (2) a reasonable person in the actor's situation would not have retreated, and (3) the use of force is 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. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2003). Under the theory of apparent danger, a person has the right to defend against apparent danger to the same extent as actual danger, provided that he acts upon a reasonable apprehension of danger as it appears to him at that time. Courtney v. State, 908 S.W.2d 48, 52 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). A defendant is justified in using deadly force against another to protect a third person if the third person is threatened by circumstances that would entitle the defendant to protect himself, and the defendant reasonably believes his intervention is immediately necessary. See Tex. Pen. Code Ann. § 9.33 (Vernon 1994). In arguing the trial court erred in refusing to give a self defense instruction, appellant cites the fact that Byrd was beaten outside the night club by a group of men that included Grayson. Appellant argues he was "extremely upset" and approached Grayson to ask why Grayson and his friends were beating Byrd. Grayson hit appellant and knocked him to the ground. This evidence, appellant argues, raised the issue whether he reasonably feared injury or death at the hands of Grayson and acted in self defense. In the alternative, appellant argues this evidence raises the issue of whether he acted in defense of Byrd, who was beaten and later hospitalized. We disagree. What appellant fails to point out is that he was able to leave the scene after Grayson knocked him down. Between five and fifteen minutes later, appellant returned and went directly to Grayson and shot him twice in the head. Appellant cites us to no evidence, and we have found none, indicating that Grayson threatened appellant when he came back or that Grayson or anyone else was still beating Byrd. Under these circumstances, we conclude the trial court correctly refused to instruct the jury on self defense, apparent danger, or defense of a third person. See Davis v. State, 22 S.W.3d 638, 640 (Tex.App.-Waco 2000, pet. ref'd) (no entitlement to self defense charge where appellant fought with victim, left room to get knife, and returned to threaten victim). We overrule appellant's ninth issue. In his tenth issue, appellant contends the trial court erred in overruling his Batson objection. At the conclusion of voir dire, appellant objected that the State struck two African-American venirepersons because of their race. After a Batson hearing, the trial court overruled appellant's objection. See Batson v. Kentucky, 476 U.S. 79 (1986). Under Batson, there is a three-step process for evaluating an objection to peremptory strikes. See Hernandez v. New York, 500 U.S. 352, 358 (1991). First, the defendant must make a prima facie showing of discrimination . Purkett v. Elem, 514 U.S. 765, 767 (1995). The burden of production then shifts to the prosecutor to articulate a race- neutral explanation for the strikes. Id. A race-neutral explanation need not be persuasive or even plausible, but only a reason based upon something other than race. Id. at 768. If the prosecutor gives a race-neutral explanation, the trial court must decide whether the defendant has proven purposeful discrimination. Id. at 767. The ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. Id. at 768. The trial court's determination on the issue of intentional discrimination is a finding of fact entitled to great deference on appeal. See Herndandez, 500 U.S. at 364-65; Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Crim.App. 1999); Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App. 1990) (op. on reh'g). In reviewing the trial court's determination, we view the record in the light most favorable to the trial court's ruling. Kemp v. State, 846 S.W.2d 289, 304 (Tex.Crim.App. 1992). We cannot reverse merely because we would have weighed the evidence differently had we been sitting as the trier of fact. Mandujano v. State, 966 S.W.2d 816, 819 (Tex.App.-Austin 1998, pet. ref'd). Rather, we reverse only if the trial court's determination is clearly erroneous. Whitsey, 796 S.W.2d at 726. A finding is clearly erroneous, even if evidence exists to support it, if our review of the record leaves us with the definite and firm conviction the trial court made a mistake. Whitsey, 796 S.W.2d at 721. At the Batson hearing in this case, the prosecutor explained that he struck Juror Number Two, an African-American male, because he had been no-billed on an aggravated assault with a deadly weapon and had "a lot of involvement with the criminal justice system." The prosecutor explained he struck Juror Number Forty, an African-American female, because she "had a son in [the Texas Department of Corrections] she thought for theft or robbery that had done some time" and she indicated that the time her son got was not fair. The prosecutor stated that a number of people on the panel knew someone who had been to prison, but Juror Number Forty was the only one who said she thought the person in prison was not treated fairly. Appellant's counsel then argued that Juror Number Two was a young African-American male with his hair in braids or corn rows. In addition, appellant's counsel argued that the State posed a disproportionate number of questions to Juror Number Two, and Juror Number Forty said "she can be fair now." The prosecutor responded that two African-Americans and two Hispanics were on the jury. Further, the prosecutor pointed out that a criminal background check of all the potential jurors revealed one member of the panel had an undisclosed no-bill for attempted murder and another had an undisclosed DWI. The prosecutor argued that he struck both members of the panel with undisclosed criminal matters and that race had nothing to do with his use of strikes. The record in this case does not leave us with a firm conviction that a mistake has been made. See Whitsey, 796 S.W.2d at 721. We conclude the trial court's decision to overrule appellant's Batson challenge was not clearly erroneous. We overrule appellant's tenth issue. In his eleventh issue, appellant argues the trial court erred in refusing to admit into evidence a photograph of Grayson. Specifically, appellant attempted to admit a photograph of Grayson beneath the words "Commemorating the Life of a Warrior" on his funeral program. The picture depicts Grayson in a white tuxedo. Appellant offered the photograph to show Grayson's character as that of a "warrior" and to rebut testimony at trial that Grayson was a non-violent person. In ruling on the admission or exclusion of photographic evidence, the trial court is accorded considerable discretion. Huffman v. State, 746 S.W.2d 212, 222 (Tex.Crim.App. 1988). We have examined the record and the photograph at issue here. We do not see how the photograph of Grayson was relevant to appellant's case. Accordingly, we cannot conclude the trial court abused its discretion in refusing to admit the photograph. We overrule appellant's eleventh issue. We affirm the trial court's judgment.