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Bryant v. State

Court of Appeals of Texas, Fifth District, Dallas
Jul 12, 2007
No. 05-06-00036-CR (Tex. App. Jul. 12, 2007)

Opinion

No. 05-06-00036-CR

Opinion Filed July 12, 2007. DO NOT PUBLISH Tex. R. App. P. 47

On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 21979-422.

Before Justices MOSELEY, O'NEILL, and FITZGERALD.


OPINION


A jury convicted Cheryl Kay Bryant of forgery. See Tex. Pen. Code Ann. § 32.21(b), (e)(1) (Vernon Supp. 2006). After finding an enhancement paragraph true, the trial court assessed punishment at five years' imprisonment. In two issues, appellant contends the trial court erred in not declaring a mistrial and she did not receive effective assistance of counsel. We affirm.

The indictment recites appellant's name as Cheryl Fay Bryant, but appellant testified her name is Cheryl Kay Bryant. The trial court's judgment correctly recites appellant's true name.

The State contends appellant's brief contains five distinct complaints, including ineffective assistance of counsel, no probable cause to arrest, trial court error in denying a motion for mistrial, legal and factual insufficiency of the evidence supporting the conviction, and prosecutorial misconduct. However, we construe appellant's brief as raising only two issues: trial court error in not declaring a mistrial and ineffective assistance of counsel.

Background

Janet Garcia, a clerk at the Terrell Municipal Court, testified appellant came to her window on January 23, 2003, stating she needed to make a payment for someone else. Appellant had a $100-bill in her hand, said she was paying a fine for Christopher Alexander, then handed Garcia the $100-bill. Garcia gave appellant a receipt. After appellant had left the building, Garcia noticed the bill looked "a little different" because it was "bluish instead of the normal color." Garcia marked the bill with a counterfeit pen. The mark changed from light to black, indicating the bill was counterfeit. Garcia notified her supervisor, then walked across the hall to the police department and filed a report. Garcia testified that three days later, she looked at a photographic lineup and identified appellant as the person who passed her the counterfeit $100-bill. Garcia further testified there were two security cameras in the lobby where her desk is located. Detective A.B. Sansom took Garcia's report and the counterfeit $100-bill on January 23, 2003. Sansom testified he believed the bill was counterfeit because the color of the bill was wrong, its texture was "soft and thin," and it lacked markings known as "tiny hairs" that are visible on all true currency. Sansom testified the case was assigned to a detective who is specially trained in counterfeit documents. Detective Walter Newell, a forgery and financial crimes investigator, testified the $100-bill passed to Garcia is counterfeit. Newell testified that a counterfeit pen contains iodine which reacts to the starch in paper. Because true currency is about forty percent linen, it contains no starch. A counterfeit pen mark will remain a light yellow color when applied to a true bill. With a counterfeit bill, the iodine in the pen reacts to the starch in the paper and changes the mark from its light color to black. Newell testified the bill passed to Garcia lacked the red and blue fibers and holographic image that are present in true currency, and the bill's texture was "extremely thin." Newell testified he contacted the Secret Service, giving them the serial and face-plate numbers from the counterfeit bill. According to the Secret Service, a counterfeit bill with identical serial and face-plate numbers had been passed in Garland, Texas in 2003. Newell testified that three days after receiving the report from Garcia about a counterfeit $100-bill, he received another report of the passing of a counterfeit $100-bill at a Walmart store in Terrell. The Walmart offense occurred on January 26, 2003, and two individuals were arrested in that incident, a woman and a man. Newell obtained the book-in photograph of the female suspect in the Walmart offense and assembled a photographic lineup. When he showed the lineup to Garcia, she identified appellant's photograph as the person who passed her a counterfeit $100-bill on January 23, 2003. Newell testified the counterfeit $100-bill from the Walmart offense had a different serial number from the counterfeit $100-bill passed to Garcia. John Burley, the co-manager at Walmart, testified he has trained the cashiers how to use a counterfeit pen to detect counterfeit currency. On January 26, 2003, a cashier used the pen on a $100-bill given to her by a customer. The cashier determined the bill was counterfeit and called Burley because the customer was "getting loud." When Burley got to the cashier's register, he saw appellant arguing with the cashier. A man who was with appellant "walked off" when Burley approached. The cashier told Burley that appellant gave her the $100-bill. Burley looked at the bill and determined it was counterfeit. Appellant asserted that the bill was not counterfeit, and told Burley to "hold it up to the light." Burley called the police. When the police arrived, Burley gave the counterfeit bill to an officer. The officer arrested appellant and her companion when he learned they both had outstanding warrants.

Motion for Mistrial

Appellant argues the trial court erred by denying her motion for mistrial after the court sustained appellant's objection to testimony about a crack pipe. Appellant asserts the statement's probative value was substantially outweighed by unfair prejudice that could not be cured by a jury instruction to disregard. The State responds that the trial court did not abuse its discretion in denying appellant's motion for mistrial because it instructed the jury to disregard the testimony. A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. See Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). A mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors. See Wood, 18 S.W.3d at 648; Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). A mistrial is required only when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the prejudicial impression produced in the minds of the jury. See Brown v. State, 92 S.W.3d 655, 661 (Tex.App.-Dallas 2002), aff'd, 122 S.W.3d 794. 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 the jury to disregard. See Wood, 18 S.W.3d at 648. In this case, the State asked a witness if anything unusual happened when the police took appellant to a patrol car. The witness said he saw a "glass crack pipe" drop as appellant was getting into the patrol car. The prosecutor then asked, "[H]ow do you know it was a crack pipe?" and "[D]id you go check after they left to see if it was indeed a glass pipe?" At this point, defense counsel objected to the testimony as a violation of a motion in limine granted prior to trial concerning extraneous offenses. The trial judge sustained defense counsel's objection that the testimony was improper, instructed the jury to disregard the testimony, and denied defense counsel's motion for mistrial. Based upon this record, we conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. See Wood, 18 S.W.3d at 648; Brown, 92 S.W.3d 661. We resolve appellant's first issue against her.

Ineffective Assistance of Counsel

Appellant argues she did not receive effective assistance of counsel because counsel did not investigate the existence of security camera videotapes from the Terrell city hall lobby and failed to properly object to the admission of a $100-bill from the Walmart offense. The State responds that the record does not show counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Without evidence of the strategy involved concerning counsel's actions at trial, the reviewing court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814; Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). The record shows counsel questioned Garcia extensively about the number and location of security cameras in the lobby of the city hall building and whether the cameras captured images of everyone who came into and left the building. During a hearing outside the presence of the jury to discuss the testimony and evidence relating to the Walmart offense, counsel argued the testimony was not relevant and could be prejudicial to appellant. The trial court found the testimony to be relevant and allowed its admission. Nothing in the record supports appellant's claims. Further, counsel did not have an opportunity to explain himself. See Goodspeed, 187 S.W.3d at 392. We conclude appellant has not met her burden of proving by a preponderance of the evidence that counsel was ineffective. See Rylander, 101 S.W.3d at 111; Thompson, 9 S.W.3d at 813. We resolve appellant's second issue against her. We affirm the trial court's judgment.


Summaries of

Bryant v. State

Court of Appeals of Texas, Fifth District, Dallas
Jul 12, 2007
No. 05-06-00036-CR (Tex. App. Jul. 12, 2007)
Case details for

Bryant v. State

Case Details

Full title:CHERYL KAY BRYANT, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 12, 2007

Citations

No. 05-06-00036-CR (Tex. App. Jul. 12, 2007)