Opinion
01-22-00197-CR
12-20-2022
MARK KENNETH CARTER, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1641166.
Panel consists of Radack, Chief Justice and Countiss and Rivas-Molloy, Justices.
MEMORANDUM OPINION
Julie Countiss Justice.
A jury found appellant, Mark Kenneth Carter, guilty of the felony offense of aggravated assault of a family member. After appellant pleaded true to the allegations in two enhancement paragraphs that he had twice been previously convicted of felony offenses and the trial court found true the allegation in one enhancement paragraph, the trial court assessed his punishment at confinement for thirty years. In his sole issue, appellant contends that the trial court erred in denying his motion for mistrial. We affirm.
See Tex. Penal Code Ann. §§ 22.01(a), 22.02(a)(2), (b); see also Tex. Code Crim. Proc. Ann. art. 42.013; Tex. Fam. Code Ann. §§ 71.0021(b), 71.003-.006.
Background
Maria Narvaez testified that she was seventy-six years old and was a neighbor of appellant and the complainant, Blanca Rivera. Narvaez and her husband lived in a house on Noble Street in Houston, Harris County, Texas. They would see appellant and the complainant outside in the neighborhood, and sometimes the complainant would visit Narvaez. The complainant and Narvaez "would sit and talk for a little while and then [the complainant] would leave." Appellant and the complainant would also take their child to play in the park across the street from Narvaez's house.
Narvaez had a patio area in front of her house that was enclosed by a wooden fence. The fence had a gate centered in front of the house and a side gate that Narvaez's husband kept locked. On the afternoon of August 2, 2019, Narvaez was in her house when she heard screaming outside. She went to the driveway area beside the enclosed patio and opened the front gate to look into the patio. "The first thing [she] saw" was the complainant "lying on the concrete." The complainant was bleeding "a lot" from her forehead and her face was "covered with blood." Appellant "was standing" about three or four feet away from the complainant, holding "a shovel in" both hands above his head as if he were "ready to bring it down" onto the complainant. Narvaez told him, "Don't do that. I'm calling the police." Appellant tossed the shovel aside and stood there.
Meanwhile, two men, who were friends of Narvaez's adult son, had arrived at Narvaez's house and were waiting outside for her son. Narvaez "told them to hold the [patio] gate" closed so appellant "wouldn't get out." Appellant then "just laid down" beside the fence. The complainant was still on the ground bleeding.
Narvaez called for emergency assistance. A short time later, Narvaez's son and his girlfriend arrived at Narvaez's house. The girlfriend, who was a nurse, tended to the complainant until emergency assistance personnel arrived. She applied a towel to the complainant's head, which was still bleeding heavily.
According to Narvaez, appellant did not try to call for emergency assistance or do anything to care for the complainant. And he did not talk to the law enforcement officers who arrived at the scene.
Narvaez further testified that sometime before trial, the complainant asked Narvaez to testify that the person who had assaulted her "wasn't [appellant]." Narvaez responded that she "was not going to lie." She was not going to "change[] the story" from what she had told law enforcement officers on the day of the assault because what she had told officers "[was] what happened."
Houston Police Department ("HPD") Officer D. Molina testified that on August 2, 2019, he was dispatched to a house on Noble Street. The house was "enclosed by a wooden fence," and "numerous people" were standing outside the house on the sidewalk by the front gate. As Molina approached the gate, he saw the complainant lying "on the ground" just inside the fence. She was "covered in blood." Blood was "on her face, on her arms, and on her clothing," and there was blood on the patio around her. Emergency medical technicians ("EMTs") were attending to her. The people standing by the gate pointed Molina "in the direction of" appellant, "who was lying a few feet away from" the complainant. Appellant "was lying there on his back" and "staring up at the sky" "as if nothing was going on." Appellant did not appear to be concerned about the complainant and did not try to help her. To Molina, appellant appeared intoxicated; he could not stand "on his own" and "his pupils were dilated." The people at the scene told Molina that appellant was the person who had injured the complainant.
Officer Molina interviewed the complainant after the EMTs had placed her on a stretcher outside the fence. Molina observed that the complainant had a "deep laceration to the back of her head, several baseball to softball size welts on her arm, a swollen nose, and what appeared to be a deep cut on the bridge of her nose." She was in apparent pain but was conscious and appeared coherent. Wincing while she spoke, the complainant told Molina that her "husband" had assaulted her with a shovel because she had "approached him" about his narcotics use. The complainant stated that appellant had been "standing over her and hitting her," and she showed Molina how appellant wielded the shovel with "an over the head movement." Molina also spoke with Narvaez, who told him that she saw appellant strike the complainant.
Molina took photographs at the scene depicting the complainant's injuries, which the trial court admitted into evidence a trial. He also photographed the shovel, and during his testimony, he pointed out a mark on the blade of the shovel that he had "identified as blood splatter" on the day of the assault. As a result of his investigation, Molina concluded that appellant had caused the complainant's injuries.
HPD Officer G. Waskow testified that on August 2, 2019, he was "dispatched to a call for service for an assault." When he arrived at the scene, Officer Molina was already there. Waskow was tasked with collecting and tagging the evidence that other law enforcement officers had recovered and photographed, and he "secured it in the back of [his] patrol car." The evidence included "a shovel that was used to assault the complainant." The shovel "was in two pieces" and had "what appeared to be some blood residue on . . . the blade."
Houston Fire Department ("HFD") EMT J. Pacheco testified that on August 2, 2019, he was dispatched to a house on Noble Street after an assault. When Pacheco arrived, he found the complainant "ready to be transported." She "was already bandaged," and her head was wrapped with a gauze compress. The other HFD EMTs at the scene told Pacheco that the complainant had a "[three] inch laceration to the right side of her head" and her right forearm was bruised and swollen. On the way to the hospital, the complainant told Pacheco "that her husband [had] hit her multiple times with a shovel."
Monica Ngann testified that she is a social worker with the domestic violence division of the Harris County District Attorney's Office. She is a licensed master social worker and has over eight and a half years of experience working with people who have experienced domestic violence. Ngann explained that victims of domestic violence may recant in certain situations because of the cycle of behavior common in relationships where domestic violence is present. After an incident of domestic violence occurs, the abuser "may make an excuse as to why that incident occurred," saying, for instance, that he "was very tired that day and he got frustrated and took it out on [the victim]" or that "[narcotics] or alcohol were involved," or giving some other excuse to "explain away" the abuse. Then, the victim "may give" the abuser "another opportunity in their relationship because maybe they have children together," or maybe she believes that the abuser is "sincere in his apology and he won't do it again." Ngann added that "[p]eople may stay in abusive relationships because they may fear retaliation," or because "they have a child together" and the victim is "really trying to work it out." The victim may "feel[] guilty because even though [the abuser] was violent toward[] her, she doesn't want to feel like" she was the person who "ruined his life, if law enforcement g[ets] involved."
The abuser and the victim then "may go through a period" known as "the honeymoon phase." "But eventually," something else happens "that triggers [the abuser] again," and "another incident" of domestic violence occurs. According to Ngann, it is common for domestic violence victims to ask for a case against their abuser to be dismissed. The victim might recant or minimize an incident of domestic violence because she is "back in the relationship" with the abuser and "doesn't want that person away from [her] life," because things may be going well or she believes "things will get better" if she "just leaves it alone." A victim also might recant or minimize an incident of domestic violence if she and the abuser "have a child together" or if "she's financially dependent" on the abuser. According to Ngann, these kinds of factors "may make it difficult for [the victim] to separate" from the abuser.
The complainant testified on behalf of appellant at trial. She stated that appellant was her husband. They were not legally married, but they had been in a relationship for five years and had a child together.
According to the complainant, on August 2, 2019, she was assaulted by an unknown man who was inside the gate at Narvaez's house. The complainant explained that "a lot of people hang out" in the yard outside Narvaez's house and use narcotics. Before assaulting her, the unknown man asked the complainant if she had money. The complainant believed that the unknown man thought she had money because she had told Narvaez earlier that day "that [she] had received money from a car accident." According to the complainant, appellant was carrying the money she had received and he was going to help her buy a car with it.
When the complainant told the unknown man that she did not have money, "he got mad" at her and retorted, "Yes, you got money." Then he "pushed [her] onto the ground" and "started hitting [her] with the shovel." Appellant was there when the unknown man assaulted the complainant. Appellant took the shovel away from the unknown man, and the man "went running through the back gate" at Narvaez's house.
After the assault, the complainant was "dizzy" from having been hit in the head. She asked the law enforcement officer, "Where is my husband?" She denied telling Officer Molina or the EMTs that her husband had struck her with a shovel. She also denied that appellant had hit her or abused her. But she acknowledged that she did not tell law enforcement officers that an unknown man, and not appellant, had caused her injuries on the day of the assault.
The complainant acknowledged that on August 29, 2019, while appellant was in jail, she had a telephone conversation with him in which she told him, "You beat me up to death. You could have killed me. . . . You almost could have killed me and you did it because you don't love me." According to the complainant, she told appellant those things because she "was jealous," and she reiterated that appellant "didn't do it." The complainant also admitted that on May 15, 2018, she called law enforcement to report that appellant had assaulted her. And she acknowledged that she was the complainant in a 2018 case that charged appellant with the misdemeanor offense of assault of a family member. But the complainant denied that appellant had committed the assault, even though he had pleaded guilty to the offense and served a sentence of confinement for one year.
Standard of Review
We review the denial of a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). In applying an abuse-of-discretion standard of review, we uphold the trial court's decision to deny a mistrial "if it was within the zone of reasonable disagreement." Id.; see also Griffin v. State, 571 S.W.3d 404, 416 (Tex. App.-Houston [1st Dist.] 2019, pet. ref'd). In determining whether a trial court abused its discretion by denying a mistrial, we balance three factors: (1) the severity of the misconduct (including its prejudicial effect), (2) the effectiveness of the curative measures taken, and (3) the certainty of the conviction or punishment assessed absent the misconduct. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Verdine v. State, No. 01-18-00884-CR, 2020 WL 1584468, at *9 (Tex. App.-Houston [1st Dist.] Apr. 2, 2020, pet. ref'd) (mem. op., not designated for publication).
Denial of Motion for Mistrial
In his sole issue, appellant argues that the trial court erred in denying his motion for mistrial because the State, during its closing argument, "repeated [a] comment [about appellant's] failure to testify after the trial court had instructed the jur[y] to disregard" the State's comment "the first time."
"Mistrial is an appropriate remedy in extreme circumstances for a narrow class of highly prejudicial and incurable errors." Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (internal quotations omitted); see also Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011) (granting motion for mistrial is appropriate only when "the objectionable events are so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant." (internal quotations omitted)); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (mistrial is trial court's remedy for improper conduct that is "so prejudicial that expenditure of further time and expense would be wasteful and futile" (internal quotations omitted)). Otherwise, when the prejudice is curable, an instruction by the trial court to disregard eliminates the need for a mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004); see also Davis v. State, 268 S.W.3d 683, 694 (Tex. App.-Fort Worth 2008, pet. ref'd) (noting in most cases injury from improper jury argument can be cured when trial court instructs jury to disregard argument).
Appellant's complaint that the trial court erred in denying his motion for mistrial relates to the following portion of the State's closing argument, during which the State said:
When you saw [the complainant] on the stand stating "the last time [appellant] pled guilty to assault-assaulting me, that was my fault. That wasn't him. It was because I overreacted. It was my fault." Now she's saying, "he didn't hit me with a shovel. It was someone else. It wasn't him." Even though she said multiple times that it was. Yesterday was the first time we'd ever heard about anyone else being there. But we know that's not true. We know it's not because if it were, why didn't [appellant] say something on the scene about this other person?
At trial, appellant's trial counsel objected to this portion of the State's closing argument, asserting that the State could not "mention why [appellant] didn't testify." The trial court sustained the objection and instructed the jury to "disregard the last statement of the [State]" and not to "consider it for any purpose."
The State then continued its closing argument, observing that appellant "didn't tell the police on the scene" that "someone else was there." Appellant's trial counsel renewed his previous objection, and the trial court again sustained the objection and instructed the jury to "not consider" the statement "for any purpose" and "consider only the evidence" that the jury had heard during the trial. Appellant's trial counsel then requested that the trial court grant a mistrial, and the trial court denied his request.
Although the State is afforded wide latitude in its jury arguments, proper jury argument falls within four general categories: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007). Proper jury argument is not objectionable, but the fact that a defendant did not testify at trial does not fall into any of the above categories and may not be the subject of comment by the State. See Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Weinn v. State, 281 S.W.3d 633, 640-41 (Tex. App.- Amarillo 2009), aff'd on other grounds, 326 S.W.3d 189 (Tex. Crim. App. 2010); see also Vasquez v. State, No. 01-19-00031-CV, 2020 WL 3969721, at *6 (Tex. App.-Houston [1st Dist.] July 14, 2020, no pet.) (mem. op., not designated for publication); Aguilar v. State, No. 01-15-00972-CR, 2017 WL 3634248, at *9 (Tex. App.-Houston [1st Dist.] Aug. 24, 2017, pet. ref'd) (mem. op., not designated for publication). This is because argument by the State that comments on a defendant's decision not to testify violates his right against compelled self-incrimination. See U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08; Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011) ("A comment on a defendant's failure to testify violates both the state and federal constitutions as well as Texas statutory law."); Bradshaw v. State, 2020 WL 7062589, at *7 (Tex. App.-Houston [1st Dist.] Dec. 3, 2020, no pet.) (mem. op., not designated for publication). To determine whether the State's argument fell within one of the permissible categories of jury argument, we consider the argument in light of the record as a whole. Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.- Houston [1st Dist.] 2001, pet. ref'd).
The State's reference to appellant's silence at the scene after the assault was consistent with Narvaez's testimony that appellant did not try to call for emergency assistance or talk to any of the law enforcement officers when they arrived. Appellant did not object to that portion of Narvaez's testimony during trial, but instead, he objected to the State's reference, during its closing argument, to appellant's silence at the scene as a comment on appellant's failure to testify which he asserts violated his privilege against self-incrimination. See U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08.
The State, though, in its closing argument, did not mention appellant's failure to testify. See Diamond v. State, 496 S.W.3d 124, 126 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) (comment by State will be considered violation of defendant's Fifth Amendment right only if words spoken clearly refer to defendant's failure to testify). It only pointed out that appellant did not talk to law enforcement officers at the scene on the day of the assault. Cf. Basye v. State, No. 06-18-00060-CR, 2019 WL 178493, at *3-4 (Tex. App-Texarkana Jan 14, 2019, pet ref'd) (mem op, not designated for publication) (State's comment during closing argument that defendant did not talk to law enforcement officer investigating offense "was not a comment on [defendant's] constitutional right to remain silent") "[P]re-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against compelled self-incrimination" Salinas v State, 369 S.W.3d 176, 179 (Tex Crim App 2012), aff'd, 570 U.S. 928 (2013); see also Valmana v State, 605 S.W.3d 490, 511 (Tex App-El Paso 2020, pet ref'd) ("The Fifth Amendment does not prohibit the State from introducing evidence of a defendant's pre-arrest, pre-Miranda silence") "The right against compulsory self-incrimination is 'simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak'" Salinas, 369 S.W.3d at 179 (quoting Jenkins v Anderson, 447 U.S. 231, 241 (1980) (Stevens, J, concurring)). Thus, the State may comment on a defendant's pre-arrest silence at trial without implicating his right against compelled self-incrimination. Buentello v. State, 512 S.W.3d 508, 521 (Tex. App.- Houston [1st Dist.] 2016, pet. ref'd); see also Salinas, 369 S.W.3d at 179 (State may comment on defendant's pre-arrest, pre-Miranda silence regardless of whether defendant testifies).
We conclude that the challenged portion of the State's closing argument was a proper summation of the evidence and did not violate appellant's right against compelled self-incrimination. Accordingly, we hold that the trial court did not err in denying appellant's motion for mistrial.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.