Opinion
No. 05-02-00485-CR.
Opinion Issued January 31, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-01478-IS. AFFIRMED.
OPINION
Rayson Cooks appeals his escape conviction. After finding appellant guilty, the jury assessed punishment, enhanced by two prior felony convictions, at ninety-nine years' imprisonment. Appellant raises four issues: ineffective assistance of counsel; legal and factual sufficiency of the evidence; and improper jury arguments by the State. For reasons that follow, we affirm the trial court's judgment. On March 29, 2001, appellant went to the office of the Department of Public Safety (DPS) to renew his driver's license. The DPS clerk discovered an outstanding arrest warrant for appellant for the offense of failure to stop and render aid. After the clerk notified on-duty DPS Trooper Darryl McGowan about the warrant, McGowan approached appellant. When McGowan asked appellant if he was Rayson Cooks, appellant fled from the office. McGowan chased and caught him. Because appellant initially resisted, McGowan used pepper spray and handcuffs to restrain appellant. After restraining appellant, McGowan took him back to the DPS office and told him he was under arrest. McGowan initially put appellant in a holding cell and took off the handcuffs. Once appellant began to cooperate, the officer moved him to his office and handcuffed him to a large wooden chair. McGowan told appellant they had to complete the "book-in" process and await the warrant confirmation before he could have him transported to jail; appellant indicated that he understood. Shortly thereafter, when McGowan left the room to look for the warrant confirmation, a DPS clerk told McGowan that appellant had gone. McGowan returned to his office and discovered the arm of the chair had been broken and appellant was gone. McGowan again chased and caught appellant and, again, appellant refused to cooperate. However, faced with the threat of being sprayed again with pepper spray, appellant soon acquiesced. McGowan took appellant back to the holding cell, obtained the warrant confirmation, and transported appellant to jail.
Procedural Background
On April 26, 2001, appellant was indicted for the third degree felony offense of escape. Tex. Penal Code Ann. § 38.06(a)(1),(c)(1) (Vernon Supp. 2003). The range of punishment for that offense is two to ten years' imprisonment in the institutional division with an optional fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34 (Vernon Supp. 2002). On July 30, 2001, appellant was reindicted. The reindictment alleged two prior convictions which enhanced the punishment to imprisonment in the institutional division for a minimum of twenty-five years to a maximum of life or ninety-nine years. Appellant was first represented by retained attorney Katherine Shelton. In December of 2001, after appellant fired Shelton, attorney Donna Winfield was appointed by the trial court, and the case was set for trial in February of 2002.Ineffective Assistance of Counsel
In his first issue, appellant argues he received ineffective assistance of counsel because Shelton failed to advise him of an eight-year plea bargain offer made by the State on the original indictment. Appellant claims in his brief that had he been so informed he would have accepted the offer. We use the Strickland standard in evaluating ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999); Batiste v. State, 73 S.W.3d 402, 409 (Tex.App.-Dallas 2002, no pet.). To prevail, appellant must show counsel's representation fell below an objective standard of reasonableness as well as a reasonable probability that a different outcome would have resulted but for counsel's error. Batiste, 73 S.W.3d at 409 (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994)). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Id. (citing Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). Where defense counsel has failed to inform a criminal defendant of plea offers made by the State, the defendant is prejudiced by the missed opportunity of accepting such bargain and presenting it to the trial court for consideration in sentencing. Ex parte Lemke, 13 S.W.3d 791, 796 (Tex.Crim. App. 2000). Where the defendant has been prejudiced by counsel's failure to convey a plea bargain offer, the appropriate remedy is to reinstate the original offer. Id. at 798. However, the government may, in proper cases, demonstrate that intervening circumstances have so changed the factual premises of its original offer that, with just cause, it would have modified or withdrawn its offer prior to its expiration date. Id. Because appellant neither specifically raised the issue of ineffective counsel in his motion for new trial nor developed an evidentiary record on the issue in the trial court, we are left with the record of the trial for our review of appellant's claim. Specifically, appellant relies on the trial court's docket sheet to show that the eight-year plea bargain offer in question was never conveyed to him by Shelton. A docket sheet, however, is not part of the official trial court record and is, therefore, not proper evidence upon which appellant may rely. See Pifer v. State, 893 S.W.2d 109, 111 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). Disregarding the docket sheet, as we must, the official record before us on appeal does not support appellant's claim that Shelton failed to inform him of the eight-year plea bargain offer. Consequently, appellant has not met his burden of showing that counsel's performance was deficient. Moreover, even if appellant had shown that counsel's performance was deficient, we conclude appellant has not shown how the results of his proceedings would have been different had he been advised of the eight-year plea bargain offer on the original indictment. The record indicates that at the February 15, 2002 arraignment hearing, appellant testified he never wanted to accept any plea bargain offer. However, at the February 19, 2002 punishment hearing, appellant responded affirmatively to Winfield when she asked him if he knew whether or not he would have taken the eight-year offer if he had been told about it. However, because Winfield did not ask the obvious clarifying follow-up question of whether he would have taken or not taken the offer, the record is ambiguous at best, particularly in light of appellant's earlier testimony on February 15 that he never wanted to accept any offer. However, even if we considered the above exchange as evidence that appellant would have accepted the eight-year offer had he known about it, we nevertheless conclude that a fair reading of the record reflects the State had good cause to withdraw all plea offers, including the eight-year offer, once it knew of all the underlying facts of the case and appellant's prior criminal history. Initially, the State made the eight-year plea offer to Shelton, who, according to the prosecutor, told the State that appellant rejected the offer. The State later made a fifteen-year plea offer to Winfield. Winfield informed appellant of the fifteen-year offer, but appellant rejected it. After learning that the underlying facts on the failure to stop and render aid charge involved a hit-and-run accident resulting in the death of a six-year-old boy who was riding his bicycle, the State made a thirty-year plea offer, which appellant also rejected. The record reflects the State demonstrated that its intervening and evolving knowledge of appellant's case and criminal history so changed the factual premises of its original eight-year offer that, with just cause, it would have modified or withdrawn its offer prior to its expiration date. See Ex parte Lemke, 13 S.W.3d at 796. As such, appellant has not shown that he missed an opportunity of accepting the eight-year plea offer. In other words, appellant has not shown prejudice. We resolve appellant's first issue against him. In his second and third issues, appellant argues the evidence is legally and factually insufficient to support an escape conviction because he was not sufficiently restrained to establish that a reasonable person in appellant's position would have understood he was under arrest. Evidence is legally insufficient if, when viewed in a light most favorable to the verdict, a rational jury could not have found each element of the offense beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence. Id. The reindictment required the State to prove appellant knowingly or intentionally escaped from McGowan's custody after being arrested for the felony offense of failure to stop and render aid. A person commits a felony offense if he escapes from custody when he is under arrest for, charged with, or convicted of a felony offense. Tex. Penal Code Ann. § 38.06(a)(1), (c)(1) (Vernon Supp. 2003). For purposes of the escape statute, an "arrest" is complete when a person's liberty or movement is successfully restricted or restrained, whether this is achieved by an officer's physical force or the suspect's submission to the officer's authority. Medford v. State, 13 S.W.3d 769, 773 (Tex.Crim.App. 2000). Furthermore, an arrest is complete only if "a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." Id. (quoting United States v. Corral-Franco, 848 F.2d 536, 540 (5th Cir. 1988)). Viewing the evidence in the light most favorable to the verdict, we conclude a reasonable person in appellant's position would have understood the situation to constitute a sufficient restraint on freedom of movement. McGowan chased appellant and subdued him with pepper spray. McGowan handcuffed him, told him he was under arrest, took him back to his office at the DPS facility, handcuffed him to the arm of a wooden chair that was screwed into the body of the chair, and told appellant he was awaiting a warrant confirmation. Appellant indicated he understood. When McGowan left the room, appellant broke the arm of the chair and fled through the back door. McGowan chased appellant a second time, threatened the use of pepper spray when appellant was again uncooperative, and again handcuffed him. McGowan's use of physical force with the pepper spray and handcuffs rendered appellant's arrest complete because his liberty or movement was successfully restricted. That he was able to break the chair's arm when the officer left the room does not negate that McGowan had already "arrested" him. The jury was free to believe McGowan's testimony and recollection of events and not believe appellant's, especially where, as here, appellant testified he had memory problems. The evidence is legally sufficient to prove appellant was under arrest for purposes of the escape statute. Appellant's factual sufficiency challenge relies on his own testimony that McGowan never told him he was arrested and that appellant did not believe he was under arrest. Appellant ran away the first time because he thought McGowan was going to "jump" him. And before appellant left the facility the second time, he told McGowan he had to leave to go to work, which is what he tried to do. According to appellant, McGowan placed him in a chair with a broken arm in an open, unlocked room of a DPS facility, not in a police car or a jail cell. Under these circumstances, appellant argues a reasonable person could have concluded he was not under arrest. We disagree. Reviewing all the evidence in a neutral light, the proof of guilt is not so obviously weak as to undermine confidence in the jury's determination, and the proof of guilt is not greatly outweighed by contrary proof. The evidence is factually sufficient to prove appellant was under arrest for purposes of the escape statute. We resolve the second and third issues against appellant. In his fourth issue, appellant argues the trial court erred in denying his request for a mistrial after the prosecutor improperly argued outside the record during the punishment phase of trial. As a result, appellant contends he was deprived of his right to a fair trial. The approved general areas of jury argument are: (1) a summation of the evidence; (2) a reasonable deduction from the evidence; (3) replies to argument of opposing counsel; and (4) a plea for law enforcement. See Wesbrook, 29 S.W.3d at 115. Even when an argument exceeds these areas, reversal is not required unless, in light of the record as a whole, the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Id. The remarks must have been a willful and calculated effort on the State's part to deprive appellant of a fair and impartial trial. Id. In most instances, an instruction to disregard the remarks cures the error. Id. Where, as here, the trial court instructs the jury to disregard the statement, we presume the jury complied. See id. at 116 (citing Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998)). Only offensive or flagrant error warrants reversal when there has been an instruction to disregard. See id. At the punishment phase of trial, both parties focused on the underlying failure to stop and render aid charge pending in Hunt County. In the State's closing argument, the following occurred:STATE: No, folks, this is not about a broken chair; this is about the Lopez family and all that they've suffered.
Defense Counsel had indicated in her closing last time [during the guilt/innocence phase] that, you know, let Hunt County take care of this — problem; he'll still have — even if you found him not guilty, he'd still have to face the trial in Hunt County.
Why on earth would you subject the Lopezes [the parents of the deceased boy in the underlying charge of failure to stop and render aid] to have to go through this again? The mockery of the system the Defendant has displayed in this court, his lies to you, his manipulation of the system —
APPELLANT: I'm going to object, Your Honor. I absolutely object that it's arguing outside the record and, number two, that the Defendant has an absolute right to have a jury trial in Hunt County, if he chooses to do so. It is not within the province of the jury to make that decision.
COURT: Sustained.
APPELLANT: Ask the jury to disregard the last statement.
COURT: Disregard.
APPELLANT: Move for a mistrial.
COURT: Denied.
STATE: Defense [c]ounsel was the one that said [during closing argument of the guilt/innocence phase], "Let Hunt County take care of him."
Why can't we just settle the score here? Why can't we take care of business in Dallas County?
APPELLANT: Your Honor, we — I'm going to reassert my same objection, Your Honor.
COURT: Sustained.The State then began arguing an unrelated topic. On appeal, appellant complains of the italicized phrases above. Specifically, appellant argues that the first italicized question improperly implied that he should be punished not for the escape charge, but for the extraneous charge to keep the Lopezes from having to testify in a subsequent trial. He contends that the second italicized phrase is outside the record because it asked the jury to punish appellant so severely that Hunt County would be less inclined to try him for the underlying offense. Furthermore, appellant maintains the entire argument suggested that he be punished for the extraneous failure to stop and render aid offense, not the primary escape offense, that Hunt County should be saved from having to try appellant, and that the Lopezes should be saved from the hardship of a subsequent trial on the extraneous offense. Appellant points to the jury's ninety-nine year verdict as harm. In response, the State asserts it was merely replying to defense counsel's argument, which was within the proper scope of jury argument. We first note that on the second italicized phrase appellant got all the relief he requested. After the trial court sustained appellant's objection, appellant did not pursue further relief with a request to disregard and a motion for mistrial. Consequently, appellant did not obtain an adverse ruling, and thus he did not preserve error with regard to that phrase. See Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993) (stating rule that to preserve jury argument error for appellate review, defendant must (1) make objection; (2) request instruction to disregard; and (3) make motion for mistrial); Miller v. State, 83 S.W.3d 308, 318 (Tex.App.-Austin 2002, pet. ref'd) (noting that to preserve error for review, defendant must receive adverse ruling on his objection and record must clearly show trial judge in fact ruled adversely, or else error is waived); Rodriguez v. State, 975 S.W.2d 667, 673 (Tex.App.-Texarkana 1998, pet. ref'd). Error not having been preserved on the second argument, we review only the first italicized question. The invited argument rule permits prosecutorial argument outside the record only in response to defense argument that goes outside the record. Tucker v. State, 15 S.W.3d 229, 237 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). However, a prosecutor may not stray beyond the scope of the invitation. See id. During his closing argument in the guilt/innocence phase, appellant's counsel stated, "[I]f you [find appellant not guilty], that doesn't mean that whatever charge is out there pending in Hunt County goes away. He still has to face that charge, but he should not be facing this one." The State claims that its argument at punishment was invited by the above defense argument made at guilt/innocence. We must consider the State's remarks in context. See Rivera v. State, 82 S.W.3d 64, 68 (Tex.App.-San Antonio 2002, pet. ref'd). We need not, and do not, decide in this opinion whether the invited argument rule applies under these procedural facts because even if the rule applies, considering the remarks in context, the State exceeded the scope of appellant's invitation by asking the jury to consider the Lopezes's situation in a subsequent trial. We conclude, therefore, because the first italicized question of the State exceeded the scope of the defense's invitation, even if the invited argument rule applies, the State's argument was improper. Generally, however, an instruction to disregard an improper jury argument is sufficient to cure any harm. Tucker, 15 S.W.3d at 237. However, the court's instruction to disregard has no curative effect when the argument is extreme, manifestly improper or injects new and harmful facts into the case and is thus so inflammatory that its prejudicial effect cannot reasonably be removed from the minds of the jurors by the instruction given. Id. Here, the instruction to disregard was sufficient to cure any harm. The reporter's record from the punishment hearing is replete with evidence about the extraneous underlying failure to stop and render aid offense. The State introduced into evidence the decedent's autopsy photo, testimony about physical evidence obtained from the bottom of appellant's truck that matched the victim and his bicycle, and emotional testimony from the decedent's mother. Based on this record, we cannot say that the prosecutor's statement injected new and harmful facts into the case or was extreme or manifestly improper and was thus so inflammatory that its prejudicial effect could not reasonably have been removed from the minds of the jurors by the instruction given. Thus, we conclude the trial court's instruction to disregard had curative effect. The trial court did not abuse its discretion in denying appellant's motion for mistrial based on the State's improper argument during the punishment phase of trial. We resolve the fourth issue against appellant. We affirm the trial court's judgment.