Opinion
NO. 01-11-00252-CR
05-10-2012
GABRIEL DWAYNE CARNELL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Case No. 1231346
MEMORANDUM OPINION
A jury convicted Gabriel Dwayne Carnell of felony murder, and the trial court assessed punishment at fifty years' confinement. On appeal Carnell raises a single issue, contending that the trial court erred by refusing to grant a mistrial based on the State's improper jury argument. We affirm.
See TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011).
Background
In the early morning hours of August 26, 2009, John Froehlich and Clara Reeder drove in Froehlich's truck to a Houston-area apartment complex in search of crack cocaine. As Froehlich and Reeder drove into the apartment complex, they were approached by two people: Tammy Worley and Carnell. Carnell approached the passenger side of the truck, where Reeder sat; Worley approached Froehlich on the driver's side. Reeder explained to Carnell that she and Froehlich wanted to purchase $40 worth of crack cocaine. Suspicious that Reeder and Froehlich were police officers, Carnell pulled a gun and demanded money. Carnell thrust the gun into the truck's open passenger side window, striking Reeder in the forehead with the gun. When Froehlich attempted to drive away, Carnell fired a single shot into the truck, which struck and killed Froehlich.
A grand jury indicted Carnell for capital murder. The guilt-innocence trial proceeded over the course of seven days. Thirteen witnesses testified, including Reeder, who identified Carnell in court as the man who attempted to rob her; Worley, who testified that Carnell was standing on the passenger side of the truck and that, through the driver's side window, she saw the gunfire; and Marilyn Johnson, whose testimony corroborated Worley's testimony that Carnell was standing outside the passenger side of the truck moments before the shot was fired. The State also presented evidence of Carnell's jailhouse correspondence expressing his concerns that Worley would "flip" on him or Johnson would testify.
During closing argument, Carnell objected to numerous of the State's comments to the jury. Three of the objected-to comments are relevant to this appeal—specifically, the State's comments asking the jury to "[i]magine one of your loved ones being the victim," noting that "every time we [the State] put on a witness, [Carnell] sat there like this," and recalling that a palm print found on the complainant's truck sat "in a room for about a year-and-a-half, and the first person to have it examined is the State of Texas. Not by somebody who gets up here and screams out that [Carnell] was not there." The trial court sustained Carnell's objections to these comments and instructed the jury to disregard them. The trial court, however, denied Carnell's request for mistrial based on the improper jury arguments. After deliberations, the jury found Carnell guilty of the lesser-included offense of felony murder.
Jury Argument
Carnell attacks three parts of the State's closing argument. The permissible areas of argument for the State include (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) responses to argument by defense counsel, and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Carmen v. State, 358 S.W.3d 285, 300 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). When, as here, the trial court instructs the jury to disregard improper argument, the proper analysis of the instruction's efficacy is not harmless error but whether the trial court abused its discretion by denying the motion for mistrial. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004); Carballo v. State, 303 S.W.3d 742, 748 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). This analysis focuses on (1) the "severity of the misconduct" (also defined as "the magnitude of the prejudicial effect of the [State's] remarks"), (2) the curative measures taken by the trial court, and (3) the certainty of conviction absent the conduct. Hawkins, 135 S.W.3d at 77 (stating analysis for closing arguments in punishment phase of trial); accord Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008) (applying same analysis in guilt phase of trial). "Further, in evaluating the severity of the misconduct, we must assess whether the jury argument is extreme or manifestly improper by looking at the entire record of final arguments to determine if there was a willful and calculated effort on the part of the State to deprive [Carnell] of a fair and impartial trial." Brown, 270 S.W.3d at 573 (internal quotation omitted). "In most instances, an instruction to disregard the remarks will cure the error." Wesbrook, 29 S.W.3d at 115.
Carnell first contends that the State improperly asked the jurors to place themselves in the shoes of the complainant's family by asking jurors to "imagine this: Imagine one of your loved ones being the victim." The State may not plead with jurors to abandon their objectivity by imagining the events of the criminal act as if they had happened to the jurors themselves or members of their families. See Brandley v. State, 691 S.W.2d 699, 712-13 (Tex. Crim. App. 1985); see also Ayala v. State, 267 S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.] 2008, pet. filed). The Court of Criminal Appeals's decision in Brandley is instructive on the issue of whether the State's comment affected Carnell's substantive rights. In Brandley, the Court determined that the prosecutor's request for jurors to place themselves in the shoes of the child-sexual-assault-and-murder-victim's father was an improper plea to the jurors to abandon their objectivity. Brandley, 691 S.W.2d at 712. Defense counsel objected, the trial court sustained the objection, and the trial court instructed the jury to disregard the statement. Id. at 713. In light of the timely instruction to disregard and the record as a whole, the Court concluded that the prosecutor's plea was harmless. Id.
The same is true with respect to the State's plea in this case. Viewing the State's closing argument in its entirety, we cannot conclude that there was a willful and calculated effort on behalf of the State to deprive Carnell of a fair and impartial trial. The State's remark was quick, the trial court immediately instructed the jury to disregard the remark, and the State did not dwell upon the remark during the remainder of the State's argument. The record as a whole, including the timely instruction to disregard and the incriminating evidence presented at trial, does not indicate that the State's remark was of the tenor to require a mistrial. And Carnell does not make any argument specific to the efficacy of the instruction to disregard the remark.
Carnell next contends that the State indirectly commented on his failure to testify with this statement: "Every witness in this case showed fear. I hope y'all noticed that. Marilyn was really nervous and scared her first day. I wonder if you noticed this. Throughout this trial, every time we put on a witness, the defendant sat there like this. Never looked at the witness." The State responds that, at most, the comment went to Carnell's demeanor or apparent lack of concern for the evidence presented at trial, not his failure to testify.
"Prosecutorial comment that refers to an accused's failure to testify violates the accused's Fifth Amendment right against compelled self-incrimination." Canales v. State, 98 S.W.3d 690, 695 (Tex. Crim. App. 2003); see also U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. ART. 38.08 (West 2005). "It is well settled that a prosecutor's comment amounts to a comment on a defendant's failure to testify only if the prosecutor manifestly intends the comment to be, or the comment is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant's failure to testify." Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004); see also Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). Additionally, "a prosecutor may not properly comment upon the defendant's demeanor in the courtroom, since the defendant's demeanor in the courtroom is not evidence of guilt." Wead, 129 S.W.3d at 129 n.8 (citing Good v. State, 723 S.W.2d 734, 737 (Tex. Crim. App. 1986)).
Without deciding whether the State's remark constituted an improper comment on Carnell's failure to testify or an improper comment on his courtroom demeanor, we conclude that any error was cured by the trial court's instruction to the jury to disregard the remark. Except in the most blatant cases, an instruction to disregard improper argument is considered a sufficient response by the trial court, even for comments on a defendant's failure to testify. See Moore v. State, 999 S.W.2d 385, 405-06 (Tex. Crim. App. 1999) (concluding that instruction to disregard cured harm from comment on defendant's failure to testify); Longoria v. State, 154 S.W.3d 747, 764 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) (same); Linder v. State, 828 S.W.2d 290, 301 (Tex. App.—Houston [1st Dist.] 1992, writ ref'd) (same). Given the nature of the State's remark, the immediacy of its instruction to disregard, and the circumstances of this case, we do not believe that the remark was so blatant as to require a mistrial. A reasonable trial judge could have concluded that the curative instructive effectively removed any possible prejudice caused by the State's comment.
We note that the trial court also included the following instruction in its charge:
Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a right accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him.
In this case, the defendant has elected not to testify and you are instructed that you cannot and must not refer to or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against him.
Carnell next complains that the State shifted the burden of proof at trial by stating,
[T]here is a palm print that's left on the door of the [complainant's] truck. We talked about it. Everybody knows about this. And that print sits in a room for about a year-and-a-half, and the first person to have it examined is the State of Texas. Not by somebody who gets up here and screams out that [Carnell] was not there.To the extent this comment can be construed as an attempt to suggest to the jury that Carnell had any burden of proof in this case, such argument was improper. See Wesbrook, 29 S.W.3d at 116. Like the other objected-to arguments by the State, however, this comment was quickly followed by the trial court's instruction to disregard. And, again, Carnell has not explained why the instruction to disregard was insufficient to cure the error resulting from the State's comment.
Lastly, Carnell contends that the cumulative effect of the State's improper arguments denied him a fair and impartial trial. Beyond stating that there was "a concerted effort by the State to in[j]ect improper and harmful arguments" and that the improper arguments "contributed to the jury's decision to convict [Carnell] of felony murder," however, Carnell offers no analysis of the trial court's alleged abuse of discretion in refusing to declare a mistrial. Whether considered singly or cumulatively, we thus find any error arising from the State's jury arguments to have been cured by the trial court's instructions to disregard the improper arguments. We find no error in the trial court's refusal to grant a mistrial based on the three jury arguments discussed above, and we overrule Carnell's issue sole on appeal.
Conclusion
Having determined that the trial court did not err in refusing to grant a mistrial, we affirm the trial court's judgment.
Harvey Brown
Justice
Panel consists of Justices Bland, Massengale, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).