Opinion
Nos. 05-05-00929-CR, 05-05-00930-CR, 05-05-00931-CR
Opinion issued November 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F04-43678-H, F04-43683-H, F04-43684-H. Affirmed.
Before Justices BRIDGES, FITZGERALD, and LANG.
OPINION
Tony Ivan Gutierrez appeals his three aggravated robbery convictions. Following appellant's guilty pleas in all three cases, a jury convicted appellant and sentenced him to forty-five years' confinement in cause number 05-05-00929-CR, sixty years' confinement in cause number 05-05-00930-CR, and twenty-five years' confinement in cause number 05-05-00931-CR. In two points of error, appellant argues he received ineffective assistance of counsel, and the trial court erred in failing to grant a mistrial. We affirm the trial court's judgments. Because appellant does not challenge the sufficiency of the evidence to support his convictions, only a brief recitation of the facts is necessary. Appellant was charged with three offenses of aggravated robbery committed on March 18, 2004 at a Texaco store owned by Sabzeali Hemani, March 23, 2004 at a 99 Cent store owned by Jiwani Mehmood, and April 1, 2004 at a convenience store where Boyefio Salome and her niece were present. At trial, Hemani and Salome testified without objection that Hemani thought it was "scary to work around" and Salome and her niece "both [had] nightmares about it." During closing argument, the prosecutor argued to the jury that appellant would "Keep coming into your car. You send him out of the country, he's going to come back, because he keeps coming. He robs you. You send him out of the country, he comes back." Appellant's counsel objected to this argument as an improper argument that appellant would do something to the jurors personally. The trial judge instructed the prosecutor not to "personalize with the jury" but denied appellant's motion for a mistrial. The jury convicted appellant of the three charged offenses, and this appeal followed. In his first point of error, appellant argues his trial counsel was ineffective in failing to object to the victim impact testimony of Salome and Hemani. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. The record in this case is silent as to trial counsel's strategy in failing to object to the victim impact testimony of Salome and Hemani. Appellant has failed to rebut the presumption that it was a reasonable decision to avoid objecting to the prosecutor's later reference to the matter. See id. at 814. Further, we cannot conclude a reasonable probability exists that, but for trial counsel's failure to act, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Appellant pled guilty to all three of the charged offenses and, although the maximum sentence in each case was ninety-nine years' confinement, the jury assessed punishment at forty-five years' confinement in cause number 05-05-00929-CR, sixty years' confinement in cause number 05-05-00930-CR, and twenty-five years' confinement in cause number 05-05-00931-CR. Under the facts and circumstances of this case, we cannot conclude appellant received ineffective assistance of counsel. We overrule appellant's first point of error. In his second point of error, appellant argues the trial court erred in failing to grant a mistrial when the prosecutor argued before the jury during closing argument that "the one thing your verdict in this case is going to bring is how many many lines are there going to be, because he's going to keep coming." A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). Mistrial is appropriate for only "highly prejudicial and incurable errors." Id. (citing Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000)). It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile. Simpson, 119 S.W.3d at 272. The trial court is required to grant a motion for a mistrial only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648. Here, the prosecutor emphasized appellant's past offense of beating someone with a club in 1996 and being deported. The prosecutor pointed out that in July 1998 appellant was "right back to what he had done before robbing cars. July of 1998 he commits a burglary. . . ." Thus, the prosecutor's argument sought to establish that appellant would continue committing crimes if he was not incarcerated and that he would return to commit crimes even if he was deported. We do not read the prosecutor's argument as a clear statement that appellant would commit crimes against the jurors personally. Further, we conclude the trial court's instruction to disregard cured any error, and no mistrial was warranted. See Russeau v. State, 171 S.W.3d 871, 885 (Tex.Crim.App. 2005). We overrule appellant's second point of error. We affirm the trial court's judgments.
Although it is unclear what the prosecutor meant by "lines," presumably he referred to the number of charged offenses.