Opinion
No. 05-03-01242-CR
Opinion issued August 24, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-50938-WQ. Affirmed.
Before Justices BRIDGES, RICHTER, and LANG.
OPINION
A jury convicted David Carter of murder and assessed punishment at sixty years confinement. In five issues on appeal, appellant contends the prosecutor engaged in misconduct and made improper arguments before the jury, and the trial court erred in overruling his motion for mistrial and his objections to the prosecutor's improper arguments. We affirm.
Appellant's first appointed counsel filed a motion to withdraw, accompanied by a brief asserting the appeal was frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967); Jeffery v. State, 903 S.W.2d 776, 779 (Tex.App.-Dallas 1995, no pet.). On initial submission, the Court concluded arguable issue existed regarding the trial court's jury instructions. Appellant has chosen not to address that issue on resubmission.
The Evidence
As Patrick Robinson and his friends drove past an apartment complex in three cars, a gunman emerged from a breezeway and fired several shots. One of the bullets struck Robinson in the head, causing him to crash his car into a tree. Robinson's friends fled the scene but later returned to rescue him. After hearing more gunshots, Robinson's friends drove him to a housing project several miles away where the police and an ambulance were summoned. Robinson's brother Jacoby arrived at the housing project and he held Robinson's head up until medical personnel arrived. Robinson died several days later without regaining consciousness. Two eyewitnesses identified appellant, a former schoolmate, as the person who shot Robinson. One eyewitness had given the police appellant's name on the night of the shooting. The second identifying eyewitness testified he also identified appellant to the police on the night of the shooting, but his written statement described the perpetrator only as a "black dude." A third eyewitness, Tiffany Brewer, could not identify appellant, but did provide police with a general description of the gunman. On the day following the shooting, police officers found six shell casings, all fired from the same gun, near the breezeway.Alleged Error In Overruling Motion For Mistrial
In his first issue, appellant contends the trial court erred in overruling his motion for mistrial. After the jury was discharged but before it disbanded, the bailiff informed the trial court that a juror had expressed discomfort in walking past Robinson's family because family members had said something to him that morning. The bailiff could not recall the name of the juror but she recalled the juror had said that "some of the family members or somebody said thank you, and that was it." After the bailiff spoke, counsel stated:Judge, I would ask the court make a request of each of them if that, in fact, took place. I don't have any objection to bringing them out as a group and say did anybody talk to the family members, or the judge privately go back and ask them who spoke with the family members. I would like to know who it was and like to have an opportunity to put on the record whether that impacted their deliberations today.The trial judge called a recess to speak with the jurors. When the proceedings resumed, the trial judge announced:
All right. I just spoke with the jurors. I returned to the jury room, asked if anybody had had some sort of contact or discussed-mentioned it to the bailiff, and there was two jurors, young male and young female, who indicate that they had had, there had been mention to them [sic]. And I asked what it was they said. As they were passing the family members, they said thank you to them. I asked whether or not that interaction had any influence at all on there [sic] subsequent verdict and they both indicated to me absolutely not.
So I feel that that is-I'm satisfied that there was no impropriety or any influence that was brought to bear on their decision.Appellant moved for a mistrial because of the "improper contact." The trial court denied appellant's motion. No one may converse with a juror about the trial unless they do so in the trial court's presence and with the trial court's permission. See Tex. Code Crim. Proc. Ann. Art. 36.22 (Vernon 1981). We presume an unauthorized conversation harmed the accused, but the State may rebut the presumption of harm. Quinn v. State, 958 S.W.2d 395, 401 (Tex.Crim.App. 1997). In determining whether the State rebutted the presumption, we defer to the trial court's determination of the historical facts that turn upon credibility and demeanor. See id. The State contends the family's expression of gratitude to the jurors was not a conversation within the statute's purview. See Palasota v. State, 460 S.W.2d 137, 141 (Tex.Crim.App. 1970) (concluding article 36.22 was not violated by presumed family member's negative comments to jurors when jurors did not respond to comments and comments did not affect verdict). Assuming, without deciding, that the family members' expressions of gratitude to the jurors did violate the statute, we conclude the violation was harmless. Appellant agreed to let the trial court investigate the extent of the unauthorized conversation. The trial court reported back that the comments to the jurors did not go beyond a simple "thank you." The jurors' assurances satisfied the trial court that the expressions of gratitude from Robinson's family did not influence the jurors. Nothing in the record shows the family members' comments influenced the jury or harmed appellant. To the contrary, the record shows the comments made one juror to whom they were directed uncomfortable. Under the circumstances presented, we conclude the State has rebutted the presumption of harm and the trial court did not err in denying the motion for mistrial. See Quinn, 958 S.W.2d at 401-02. We overrule appellant's first issue.
Striking Over The Shoulders Of Counsel
In his second issue, appellant contends the prosecutor attacked him over the shoulders of counsel and belittled counsel during final argument. Appellant alleges the prosecutor pointedly misstated counsel's cross-examination question to a witness regarding whether the witness had heard on the street that someone other than appellant had shot Robinson. Before misquoting counsel's question, the prosecutor characterized counsel's line of inquiry as "a rabbit trail." The State responds appellant did not preserve this complaint with a proper objection, the prosecutor's comments were permissible, and any error was harmless. In conducting his argument, the prosecutor may not strike at the accused over counsel's shoulders nor may he directly attack counsel. See Fuentes v. State, 664 S.W.2d 333, 335 (Tex.Crim.App. [Panel Op.] 1984). However, unless the statements are particularly egregious, an instruction to disregard will generally cure the error. See Wilson v. State, 7 S.W.3d 136, 148 (Tex.Crim.App. 1999). While cross-examining Tiffany Brewer, counsel engaged in the following exchange:[Counsel]: When you talked to me Sunday night, did you tell me you knew David Carter did the shooting because you saw him that night?
[Witness]: I didn't tell you that I saw him. That wasn't what you asked me.
[Counsel]: I asked you who did the shooting?
[Witness]: You asked me. I heard on the streets that it could have been Mike C., Michael Weaver did the shooting. You asked did I do anything about that. I said, no, Michael Weaver's name didn't come up.
[Counsel]: You said David Carter did the shooting, didn't you?
[Witness]: Yes, I said that.
[Counsel]: You don't know that because you didn't see him?
[Witness]: Correct.During closing argument, the prosecutor accused counsel of trying to create "a rabbit trail" by asking Brewer, "Haven't you heard on the street people saying it wasn't David Carter?" After counsel objected on the ground "that wasn't my question to her," the trial court overruled the objection and instructed the jury that it "will recall the evidence as you heard it." The prosecutor then argued without objection: He tried to ask her, `didn't you hear it was out there on the street it was somebody other than David Carter?' And Tiffany who had to correct him and say, `That's not what you asked me.' You recall that. She said, `You asked me had I heard it was Michael Weaver that shot Patrick Robinson. And I told you no.' She couldn't tell you that that was David Carter's face out there. She was honest and said, `I can describe kind of what he was wearing. Light colored shirt, dark pants.' She didn't try to say David Carter or what she heard around the neighborhood. She was clear she never heard it was anybody but David Carter. Appellant did not object to the "rabbit trail" comment and thus waived any error. See Tex.R.App.P. 33.1(a). With regard to the question at issue, appellant objected and obtained a ruling from the trial court only on the ground that the prosecutor's argument misstated counsel's question. An objection at trial may not serve as the basis for an appeal based on a different legal theory. See Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990). By not objecting to counsel's argument on the ground the argument was striking appellant over the shoulders of counsel, appellant has waived the issue for appeal. See id. Moreover, in the context of appellant's trial, the errors were harmless. Improper comments regarding counsel's character are reviewed as non-constitutional error. See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998).We reverse for non-constitutional error only when the error affects appellant's substantial rights. See Tex.R.App.P. 44.2(b). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. See Simpson v. State, 119 S.W.3d 262, 266 (Tex.Crim.App. 2003), cert. denied, 124 S.Ct. 2837 (2004). In determining whether an improper jury argument had a substantial and injurious effect or influence, we consider three factors: (1) the severity of the misconduct; (2) the curative measures adopted; and (3) the certainty of conviction absent the misconduct. See Mosley, 983 S.W.2d at 259. All three factors weigh against appellant. Regarding the severity of the misconduct, in Mosley, the court of criminal appeals deemed as "mildly inappropriate" and harmless error a similar prosecutorial comment about defense counsel leading the jury down a "rabbit trail." See id. Our record does not show the prosecutor made express aspersions against counsel's character or accused counsel of lying or manufacturing evidence. We consider the prosecutor's "rabbit trail" remark to be in line with the type of mildly inappropriate remarks in Mosley. Counsel's questioning of Brewer established that Brewer could not identify appellant as the gunman. It was Brewer, rather than counsel, who brought up the name of Mike Weaver. Therefore, the prosecutor's attribution of the suggestion of a second suspect to counsel was inaccurate. However, the thrust of the prosecutor's argument, that Brewer does not believe there is another individual who shot Robinson, did respond to the evidence. We conclude the prosecutor's remarks do not constitute severe misconduct. Thus, the first factor weighs against appellant. Although the trial court overruled appellant's objection to the misstatement of his question, the trial court did instruct the jury to remember the evidence as they heard it. Nothing in the record suggests the jury would have been unable to follow the trial court's instruction. Thus, the second factor weighs against appellant. Finally, we observe that Brewer's testimony was relatively insignificant in this case. Although Brewer witnessed the shooting, she could not identify the gunman other than to provide a description of his general appearance and clothing. Two other eyewitnesses named appellant as the gunman. Because this case turns upon the credibility and reliability of the identifying eyewitnesses, we conclude the prosecutor's argument regarding Brewer's cross-examination did not affect the outcome of appellant's trial. We overrule appellant's second issue.
Prosecutorial Misconduct
In his third issue, appellant contends he should receive a mistrial because the prosecutor disregarded the trial court's rulings and placed prejudicial testimony before the jury. The State responds appellant waived his complaint because he did not object when the prosecutor allegedly circumvented the trial court's earlier rulings. This issue arises from Brewer's testimony about threats she received from appellant's sister Shuntay. Brewer testified that she had received a telephone call from Shuntay. When the prosecutor asked Brewer what Shuntay said, counsel objected to the question as soliciting hearsay and the trial court sustained the objection. The prosecutor then asked Brewer how she felt after receiving the telephone call "without going into what was said." Counsel again objected, characterizing the prosecutor's question as "avoiding hearsay, but another way to get into it." Again, the trial court sustained the objection. The prosecutor then asked:[Prosecutor]: Did you see [Shuntay] today at court?
[Witness]:Yes.
[Prosecutor]: Out there in the hallway did she have words with you?
[Witness]: No, she doesn't have words with me. She was threatening me and rolling her eyes. She didn't. It had a little altercation in the hallway and that's when she said something [sic].
[Prosecutor]: Was the threat that you're talking about that happened in the hallway, was that kind of what the phone call was about, too?
[Witness]: Yes.A party may not circumvent the hearsay prohibitions through artful questioning designed to elicit hearsay indirectly. Schaffer v. State, 777 S.W.2d 111, 114 (Tex.Crim.App. 1989). Although we disapprove of counsel's circumventing the trial court's rulings, in this case, we need not decide the propriety of the prosecutor's conduct. To preserve an issue of prosecutorial misconduct for appeal, a defendant must (1) raise a timely, specific objection to the misconduct; (2) ask the trial court to instruct the jury to disregard the misconduct; and (3) move for a mistrial. See Tex.R.App.P. 33.1(a); Morrison v. State, 132 S.W.3d 37, 48-49 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). Appellant objected to and received favorable rulings on the prosecutor's first two questions eliciting hearsay and indirect hearsay. Appellant did not object, either to hearsay or prosecutorial misconduct, when the prosecutor questioned Brewer about the incident in the hallway. Because appellant did not object to the final question, and he received all the relief he requested on the first two questions, we conclude he did not preserve the alleged error for appeal. We overrule appellant's third issue.