Opinion
No. 05-10-00667-CR
01-25-2012
PATRICIO RODRIGUEZ ESPARZA II, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRMED as Modified; Opinion Filed January 25, 2012.
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-80639-09
MEMORANDUM OPINION
Before Justices Morris, Francis, and Lang-Miers
Opinion By Justice Lang-Miers
A jury convicted appellant Patricio Rodriguez Esparza II of delivery of cocaine in the amount of 4 grams or more but less than 200 grams and sentenced him to 20 years' confinement in the institutional division of the Texas Department of Criminal Justice. In his sole issue on appeal, appellant argues that the prosecutor made an improper jury argument during the punishment phase of trial that requires us to reverse and remand for a new punishment hearing. In a cross-point, the State argues that the trial court's judgment should be modified to reflect the fine imposed by the jury and the correct name of the prosecuting attorney. We modify the trial court's judgment and affirm as modified. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4.
During the punishment phase of appellant's jury trial, the State presented evidence that appellant had prior convictions for attempted murder, three assaults, and interference with the duties of a public servant. On cross-examination of a defense character witness-appellant's ex-wife's sister-the State asked whether the witness was aware that appellant had spent time in prison for attempted capital murder:
Q. Did [your sister] ever tell you she was going down to prison to visit her husband?
A. No. She probably would never tell me that.
Q. She never told you that her husband was sentenced to prison for attempted capital murder?
Defense counsel objected to the question and stated "that's not even a correct statement." The trial court sustained the objection, instructed the jury to disregard the question, but denied a mistrial. During closing arguments, the State again referred to a prior conviction for attempted capital murder:
In this case, rehabilitation is not gonna work. It's been proven in the past by this Defendant. He's received probation in the past. He's been revoked. He's got an extensive criminal history. He has shown that he cannot be rehabilitated. He cannot be a productive member of society. He continues to break the law.
Deterrence, not really gonna work. He spent time in prison before for attempted capital murder. Do you think that would deter you from committing future crimes?
Defense counsel objected to the argument stating, "Your Honor, that's not a correct statement. It was not attempted capital murder, and that's the second time they said that." The trial court sustained the objection and instructed the jury to disregard "that characterization." The court denied a mistrial, but told the State "three strikes and you're out." The State immediately corrected the statement and told the jury that appellant had been convicted of attempted murder. The State asked the jury to assess appellant's punishment at 25 years in prison and the defense asked the jury to assess punishment at 6 years in prison. The jury returned a sentence of 20 years and a $5,000 fine.
Appellant argues on appeal that he should get a new punishment hearing because the State's jury argument was "manifestly improper" and "a willful and calculated effort on the part of the State to deprive the Appellant of a fair and impartial trial." He argues that the State "peppered their argument with the improper characterization." Appellant preserved the issue below by objecting to the State's improper jury argument, requesting an instruction to disregard, and moving for mistrial. See Archie v. State, 340 S.W.3d 734, 740 (Tex. Crim. App. 2011).
The record shows that the evidence of appellant's conviction for attempted murder may have caused confusion. The judgment of conviction states that appellant was found guilty of the "lesser included offense of attempted murder" and placed on probation. His probation was later revoked and the judgment revoking his probation stated that appellant had been convicted of "attempted capital murder." After serving time in prison for the offense, appellant was released on felony supervision, which was also subsequently revoked. The judgment revoking his felony supervision states that the offense of conviction was "attempted capital murder." The State presented all of this evidence in the punishment phase, without objection from appellant.
The Texas Court of Criminal Appeals has held that when a trial court has sustained an appellant's objection to an improper jury argument and instructed the jury to disregard the argument, the proper issue for appeal is whether the court's refusal to grant a mistrial was an abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). The court has also held that a reviewing court must balance several factors in determining whether a trial court abused its discretion by denying a mistrial for improper jury argument: (1) the severity of the misconduct, (2) curative measures, and (3) the likelihood the jury would assess the same punishment absent the misconduct. Archie, 340 S.W.3d at 739 (citing Hawkins, 135 S.W.3d at 77 and Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)). The court has stated that a mistrial is required "[o]nly in extreme circumstances, where the prejudice is incurable[.]" Hawkins, 135 S.W.3d at 77 .
Appellant does not complain on appeal about the trial court's denial of a mistrial. Instead, he focuses his argument on the improper nature of the State's jury argument. He does not cite the factors we must consider in our review or analyze those factors in light of the record as a whole. Although appellant argues that the State's argument was "manifestly improper" and "willful and calculated," he does not provide analysis about why the argument requires reversal in light of the record as a whole. For example, appellant does not explain why the trial court's "three strikes and you're out" warning to the State in front of the jury was not a sufficient curative measure. Nor does appellant analyze the evidence presented to the jury to explain why the jury likely would have assessed a lesser sentence if the State had not made the improper argument. Consequently, we conclude that appellant has not shown that the improper jury argument resulted in reversible error. We resolve appellant's sole issue against him.
With regard to the State's cross-point, the record shows that the trial court orally pronounced appellant's sentence to include a $5,000 fine as assessed by the jury, but the judgment does not indicate a fine was assessed. In addition, the record shows that the lead prosecutor for the State was Zeke Fortenberry, but the judgment indicates it was JoDee Neil. Consequently, we sustain the State's cross-point and modify the judgment to include a $5,000 fine and to reflect that Zeke Fortenberry was the attorney for the State instead of JoDee Neil.
As modified, we affirm the trial court's judgment.
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100667F.U05