Opinion
No. 05-09-01237-CR
Opinion Filed April 19, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-57078-VRT.
Before Justices MORRIS, FRANCIS, and MURPHY.
MEMORANDUM OPINION
Thomas Dewayne Jackson appeals his murder conviction and thirty-year sentence. He raises two points of error, challenging the trial court's admission of a judgment from a prior unadjudicated probation and failure to declare a mistrial when the State, during punishment-phase argument, showed a Power Point slide containing facts not in evidence. We affirm the trial court's judgment.
Background
Willie Christian ran a "bootleg house" out of his apartment, selling cigarettes, alcohol, and cigars. On the evening of June 21, 2008, several people, including Jackson, went to Christian's house to drink alcohol and "hang out." Testimony reveals that after smoking a "blunt" of marijuana, Jackson's mood changed and he began "hollering" and acting erratically. Jackson dialed 911 but put the phone down, leaving an open line to record the events. Jackson's father testified it was Jackson on the call saying things such as "I'm a pimp," "Dewayne gonna go to the pen," "world's gonna end," and "George Bush" repeatedly. Eyewitnesses testified Jackson was involved in a physical altercation with his father and his father's cousin, after which Jackson grabbed a gun near Christian and shot Christian three times at close or "contact" range. Jackson testified he was attacked by his father and his father's cousin and Christian was fatally shot during a struggle for the gun between Jackson and Christian. After shots were fired, people ran from Christian's apartment; Mattie Caldwell, a woman who was outside, ran to the door of the apartment thinking her nephew was there. Jackson grabbed Caldwell, dragged her to the parking lot outside of Christian's apartment, slammed her into a car, and began choking her. A police officer arrived during Caldwell's struggle with Jackson. Using pepper spray, a taser, and baton strikes, the officer was unable to subdue Jackson until other police officers arrived. The initial responding officer testified that Jackson displayed "immense strength," was sweating profusely, did not appear to feel pain, and had unfocused eyes; the officer believed Jackson to be under the influence of PCP. Jackson was charged by indictment with intentionally and knowingly causing the death of Willie Christian by shooting him with a firearm. The jury found him guilty and assessed his punishment at thirty years. This appeal followed.Discussion Prior Unadjudicated Probation
Jackson first challenges the trial court's admission of a judgment from a prior unadjudicated probation. Offered during the punishment phase, the judgment shows Jackson was placed on deferred probation for the offense of intoxication assault. Jackson objected, arguing the judgment was void because deferred adjudication is not a permitted sentence for intoxication assault. Jackson claims error because the only other judgments offered by the State were a juvenile adjudication for delivery of cocaine and a misdemeanor conviction for driving with a suspended license. Asserting this error affected his substantial rights entitling him to a new punishment hearing, Jackson offers no other reason why the prior judgment should be considered void or inadmissible. We review a trial court's ruling on the admissibility of extraneous-offense evidence during the punishment phase of trial for an abuse of discretion. Roethel v. State, 80 S.W.3d 276, 280 (Tex. App.-Austin 2002, no pet.) (sub. op. on reh'g) (citing Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996)). During the punishment phase of trial, extraneous-offense evidence may be offered for any relevant purpose, including proof of a defendant's character or propensity. Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007); see also Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2010). The Texas Court of Criminal Appeals held in Ex parte Williams, 65 S.W.3d 656 (Tex. Crim. App. 2001), that because community supervision is not a sentence, the illegal granting of community supervision is not governed by a rule that applies to illegal sentences. Id. at 657. Thus, an unauthorized grant of probation did not constitute an illegal or void sentence. Id. at 657-58. Jackson asks us to revisit the holding in Williams and decline to follow the law because it is "at odds" with other decisions from the court of criminal appeals, specifically Ex parte Seidel, 39 S.W.3d 221 (Tex. Crim. App. 2001). In Seidel, issued a few months before Williams, the court of criminal appeals held that the part of the judgment where the district court dismissed a prosecution "with prejudice" was void because such dismissal was beyond the scope of the district court's authority. Id. at 225. Contending this conclusion in Seidel is in conflict with the court's holding in Williams that unlawful probation orders are not void, Jackson cites Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.-Fort Worth 2003, pet. ref'd). In Wiley, the Fort Worth court of appeals observed a possible inconsistency between Williams and Seidel, but concluded as an intermediate appellate court, it was bound to follow Williams. Id. Applying Williams, the court in Wiley concluded the unauthorized probation order entered in a previous case did not render that conviction void, and the trial court did not err by allowing the State to use this conviction in the subsequent case. Id. at 176. We agree we are bound by the holding in Williams and we are not at liberty to revisit that holding. Accordingly, we conclude Jackson's judgment ordering deferred probation was not void. See Jackson v. State, No. 05-09-00650-CR, 2010 WL 297945, at *2 (Tex. App.-Dallas Jan. 27, 2010, no pet.) (not designated for publication) (unauthorized term of deferred adjudication community supervision not void sentence appealable after adjudication); see also Duckworth v. State, 89 S.W.3d 747, 752-53 (Tex. App.-Dallas 2002, no pet.) ("Our Court does not have the authority to circumvent a decision of the court of criminal appeals."). Accordingly, we overrule Jackson's first point of error. State's Argument Containing Facts Not in Evidence Jackson argues in his second point of error that the trial court erred by failing to declare a mistrial when a Power Point slide containing facts not in evidence was displayed to the jury during the State's punishment-phase arguments. The trial court sustained Jackson's objection to the slide and sua sponte instructed the jury that the slides were not in evidence and the jury was "not to consider that particular slide for any purpose whatsoever." Jackson requested a mistrial, which the trial court denied. Jackson asserts that this error is harmful because this evidence "suggested to the jury that Mr. Jackson might try to avoid whatever punishment was assessed in his case." We review a trial court's denial of a motion for mistrial for an abuse of discretion and uphold the trial court's ruling if it was within the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). A mistrial is required only in extreme circumstances, where the prejudice is incurable. Id. "A mistrial is the trial court's remedy for improper conduct that is `so prejudicial that expenditure of further time and expense would be wasteful and futile.'" Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). Proper jury argument generally falls within one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to an argument of opposing counsel; and (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). A prosecutor may not use closing arguments to present evidence that is outside the record, as these references are generally designed to arouse the passion and prejudice of the jury. Freeman v. State, ___ S.W.3d ___, No. AP-76052, 2011 WL 891266, at *9 (Tex. Crim. App. Mar. 16, 2011) (citing Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990)). When facts not supported by the record are interjected into argument, "such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper." Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). The remarks "must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial." Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). When determining whether improper jury argument during the punishment phase warrants a mistrial, we balance three factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of the punishment assessed absent the misconduct (likelihood of same punishment being assessed). Archie, 221 S.W.3d at 700. The objectionable slide appears to be part of a time-line with the date "April 21, 2008" centered at the top of the slide and text below: "Jackson walks out of Parkland Hospital without authorization And Avoids arrest for Assault Public Servant." The slide was not mentioned at all by the prosecutor in closing; the initial reference in the record was Jackson's objection. The trial court estimated the slide was displayed by the State for "two to three seconds." The trial court permitted the prosecutor to complete his argument, during which the prosecutor did not mention the slide or its contents. Immediately after the prosecutor finished, the trial court sua sponte gave the following curative instruction: Ladies and gentlemen, I want to caution you that the Power Point presentation presented to you is only part of argument. You determine what the facts are. You're the sole determiner of the facts. In addition there was a slide that was apparently shown briefly that showed facts not in evidence. I'm sustaining the defendant's objection to that and instructing you not to consider that particular slide for any purpose whatsoever. The jury retired to determine Jackson's punishment, and Jackson requested a mistrial, which the trial court denied. Even if it were error to present the slide to the jury during argument, we conclude any harm did not arise to the level meriting a mistrial. First, the "mention" of the facts allegedly outside the record was brief and contained solely in a single slide presented to the jury for seconds; the prosecutor did not mention the facts in the slide. The Power Point presentation also was not part of the evidence and was not viewed by the jury again. Although the prepared nature of the slide would indicate the prosecution intentionally included the information on the slide, we do not have the entire presentation before us. We therefore are unable to determine whether the slide was a significant portion of the presentation or was intentionally highlighted. Given the numerous extraneous offenses noticed by the State, however, it is possible that inclusion of this alleged offense was a mistake. Second, an instruction to disregard generally will cure error if the State mentions facts outside the record. Freeman, 2011 WL 891266, at *8 (citing Gamboa v. State, 296 S.W.3d 574, 580 n. 12 (Tex. Crim. App. 2009)); see also Martinez v. State, 17 S.W.3d 677, 691 (Tex. Crim. App. 2000); Guidry, 9 S.W.3d at 154. The court's instruction was timely and specific. Not only did Jackson not request a curative instruction, but Jackson did not object at trial that this instruction was insufficient. See, e.g., Archie, 221 S.W.3d at 702 (Keller, P.J., concurring) (noting appellate court erred in considering weakness of trial court's curative instruction where appellant failed to request instruction before moving for mistrial). The court's instruction was the last statement to the jury before it retired to determine Jackson's punishment, and we presume the jury complied with the instruction. See Wesbrook, 29 S.W.3d at 116. Finally, with respect to the certainty of the punishment that would have been assessed had the alleged misconduct not occurred, we conclude that, due to the strength of the State's punishment case, it is likely the jury would have assessed the same punishment regardless of the State's conduct. Specifically, the jury convicted Jackson of intentionally and knowingly killing Christian, a sixty-three year old man who weighed approximately one hundred twenty-six pounds and was in bad health. The record includes testimony regarding the circumstances of the crime, notably that Christian was shot three times at contact range, after which Jackson grabbed Caldwell and dragged her to the parking lot where he slammed her into a car and choked her before the police arrived. The record also shows Jackson resisted arrest and exhibited behavior consistent with use of PCP, although Jackson denied using any that night and testified his hallucinations were instead caused by PCP he used in the past. Perhaps most importantly, though, is the additional evidence admitted during the punishment phase-Jackson's previous supervisor at the Texas Youth Commission testified Jackson was the second worst youth he had encountered in his previous nineteen years; Jackson was aggressive and intimidating to other inmates, peers, and staff at TYC and the Dallas County Jail and was repeatedly and often disruptive; Jackson pled guilty to intoxication assault, the circumstances of which involved driving a vehicle after smoking marijuana laced with "wet," driving the vehicle off the road, stripping to his underwear and running around the scene of the accident, appearing to be under the influence of PCP, and punching a citizen in the jaw; Jackson attacked and choked a DART bus driver, attempted to hijack the bus, after which twelve police officers were required to subdue him and take him into custody; and Jackson had multiple tattoos reflecting gang affiliation. Given the nature of the alleged misconduct, the trial court's curative instruction, and the strength of the State's case regarding punishment, we conclude the trial court's denial of Jackson's request for a mistrial was not an abuse of discretion. We overrule Jackson's second point of error.Conclusion
For the reasons stated above, we affirm the trial court's judgment.Justice Womack, in his concurrence in Williams emphasized what he also considered to be a "conflict between [the majority's] opinion and two opinions the Court recently issued": Seidel and Ex Parte Busby, 67 S.W.3d 171 (Tex. Crim. App. 2001). Williams, 65 S.W.3d at 661-64 (Womack, J., concurring).