Opinion
No. 05-04-01132-CR
Opinion Filed June 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F04-00990-MJ. Affirm and Modified.
Before Justices WHITTINGTON, WRIGHT, and FITZGERALD.
MEMORANDUM OPINION
Bruce Diaz appeals his conviction for capital murder. After the jury found appellant guilty, the trial court sentenced him to the mandatory punishment of life imprisonment. See Tex. Pen. Code Ann. § 12.31(a) (Vernon 2003). Appellant brings four points of error contending (1) the judgment incorrectly states the jury assessed punishment; (2, 3) the trial court erred in denying appellant's motions for mistrial during the State's jury argument; and (4) appellant's trial counsel was ineffective. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in the case is well settled. We affirm the trial court's judgment.
BACKGROUND
Viewed in the light most favorable to the verdict, the evidence in this case showed appellant, who was then sixteen years old, and his uncle beat and robbed the victim, and while the victim was still alive, poured gasoline over him, and set him on fire. The medical examiner determined the victim's death was caused by blunt force trauma to the head, smoke inhalation, and thermal injuries. The indictment alleged, inter alia, that appellant struck the victim "with a pipe, a deadly weapon, and an unknown object, a deadly weapon, the exact nature and description of which is unknown to the grand jurors." The evidence showed the police were unable to determine what blunt object was used to cause the victim's head injuries. Appellant's mother testified that appellant looked up to his uncle and that the uncle could get appellant to do something he might otherwise not do.CORRECTION OF JUDGMENT
In his first point of error, appellant contends the trial court's judgment incorrectly states the jury assessed punishment and that the judgment must be modified to reflect that the trial judge assessed punishment. See Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (Vernon Supp. 2004-05) (when defendant found guilty of capital murder and State does not seek death penalty, judge shall sentence defendant to life imprisonment). The State agrees. This Court has authority to reform the trial court's judgment to speak the truth. Asberry v. State, 813 S.W.2d 526, 530 (Tex.App.-Dallas 1991, pet. ref'd) (en banc). We sustain appellant's first point of error.MOTIONS FOR MISTRIAL
In his second and third points of error, appellant contends the trial court erred in denying appellant's motion for mistrial during the State's jury argument. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003); Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Mistrial is a device used to halt trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd, 3 S.W.3d at 567. To determine whether a given error necessitates a mistrial, we must examine the particular facts of the case. Id. A mistrial is required only when the impropriety is clearly calculated to inflame the jurors' minds and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds. Simpson, 119 S.W.3d at 272; Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). During the State's opening jury argument, the following occurred:[Prosecutor]: [I]t's horrible what he and his brother [sic] did, and make no mistake, they are both guilty of this crime. And there's something that we've heard a lot about, about who was directing or whatever. The leader in a group of parties committing a crime is irrelevant.
Think about Charles Manson. He obviously was the leader. Every member of his family that he had brainwashed into acting this way were all — were all also guilty of murder. Just because he looks up to his brother [sic] —
[Defense Counsel]: Judge, I'm going to object to the Charles Manson comparison, Counsel arguing —
The Court: Sustain the objection.
[Defense Counsel]: Ask that the jury be instructed to regard [sic] that last remark?
The Court: Disregard that last mark [sic].
[Defense Counsel]: Once again, Your Honor, move for a mistrial?
The Court: Overruled.
[Prosecutor]: Using reason and common sense you come to the conclusion that a person that's the leader is not important. Otherwise, another analogy, a soldier for the Nazis in World War II could have said, I just was following orders. That's not the way the law works. Everyone is going to be guilty of what they do.
[Defense Counsel]: Once again, Your Honor, I would object to the Nazi comparative.
[Prosecutor]: Your Honor, I can use analogies during argument.
The Court: I sustain that objection.
[Defense Counsel]: Ask that the jury be instructed to disregard —
The Court: Disregard the remark.
[Defense Counsel]: Move for a mistrial, Your Honor?
The Court: Overruled.
[Prosecutor]: Okay. Whether the defendant was impressionable, whether he looked up to Adam Diaz, those things are also irrelevant.Appellant argues the trial court erred in overruling his motions for mistrial to the prosecutor's references to Charles Manson and Nazi war criminals. Appellant argues the references to Manson and Nazis was an attempt by the prosecutor to confuse and prejudice the jurors and to inflame their minds. For purposes of this opinion, we assume, without deciding, the trial court's rulings sustaining appellant's objections to the argument were correct. The prosecutor did not analogize the actions of Manson and the Nazis to appellant's actions. He analogized the argument of Manson's followers and the Nazi soldiers — that they were not responsible for the horrors their actions caused because they were acting on the orders of their leaders — to the argument he expected appellant's counsel would present. Even if the mere words "Charles Manson" and "Nazi" may be inflammatory, they were not so inflammatory in the context of the prosecutor's argument that the trial court's sustaining the objection and promptly instructing the jury to disregard could not withdraw the impression created by the words. Cf. Primes v. State, 154 S.W.3d 813, 815 (Tex.App.-Fort Worth 2004, no pet.) (mem.) (prosecutor's argument, "Ted Bundy's mother loved him too," cured by instruction to disregard). We hold the trial court did not abuse its discretion in denying appellant's motions for mistrial. We overrule appellant's second and third points of error.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth point of error, appellant contends he lacked effective assistance of counsel at trial for failing to obtain an adverse ruling on an objection during the State's jury argument. The standards for reviewing ineffective assistance of counsel claims are well established. It is an appellant's burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms and (2) the deficiency prejudiced the appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (citing Strickland v. Washington, 466 U.S. 668 (1980)). We indulge a strong presumption the defense counsel's conduct falls within the wide range of reasonable, professional assistance — that the challenged actions might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994). To defeat this presumption, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). During the State's closing jury argument, the following occurred:[Prosecutor]: What were the final moments of Carlos' life like? Think about it, because this is a horrific, horrific murder. You know, based on the testimony, ladies and gentlemen, that a pipe or some other object unknown was used on Carlos Camacho.
[Defense Counsel]: Judge, I'm going to object to [the prosecutor] flashing a pipe in front of the jury. It wasn't introduced into evidence.
The Court: Sustained.
[Prosecutor]: Judge, I'm —
The Court: Is that in evidence?
[Prosecutor]: No, sir. I'm using it for my own purposes for closing.
The Court: I sustain the objection.Appellant contends counsel was ineffective by not pursuing the objection to an adverse ruling by requesting an instruction to disregard and moving for a mistrial. As appellant states in his brief, counsel's failure to pursue his objection to an adverse ruling waived any error from the prosecutor's "flashing a pipe in front of the jury." See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Appellant argues his counsel was ineffective because if he had properly preserved error, then appellant could have "presented an arguable ground for reversible error." Because the trial court sustained appellant's objection, and nothing indicates the trial court would have denied a requested instruction to disregard, appellant's "arguable ground for reversible error" would have been the trial court erred in denying a motion for mistrial. As discussed above, a mistrial is required only when the impropriety is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Simpson, 119 S.W.3d at 272. Appellant presents no explanation of why the prosecutor's actions required a mistrial, and we conclude the actions, if improper, were not so egregious that an instruction to disregard could not have cured any prejudice. Furthermore, the record lacks an explanation from counsel of his reason for not pursuing the objection. The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. We conclude appellant has failed to establish that he lacked effective assistance of counsel at trial. We overrule appellant's fourth point of error. We modify the judgment to reflect the trial court assessed punishment, and we affirm the trial court's judgment as modified.