Opinion
No. 05-09-01412-CR
07-31-2012
QUINTERO JONES, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued July 31, 2012
On Appeal from the 291st District Court
Dallas County, Texas
Trial Court Cause No. F08-63848-U
OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice Bridges
Quintero Jones appeals his capital murder conviction. A jury convicted appellant, and the trial court sentenced him to life confinement. In three issues, appellant argues the trial court erred in not declaring a mistrial when a juror “nodded off” during trial, the evidence is legally insufficient to support his conviction, and he was denied a fair trial when the prosecutor struck at him over the shoulders of counsel. We affirm the trial court's judgment.
Betty Sanusi testified she and Daniel McCauliffe moved in to the Mayan Palms apartments in August or September 2008. At that time, both Sanusi and McCauliffe used crack cocaine. After moving in, Sanusi encountered a man called “Toonkey,” Tony Williams, who sold her some crack. Toonkey came to Sanusi's apartment a “couple dozen times” over a three month period, and Sanusi knew where he lived but never knocked on his door. On November 2, 2008, Sanusi and McCauliffe started smoking crack around noon and smoked all day. During the day, “different people” came in and out of the apartment. The people gave Sanusi money, and she went out and got crack for them. About 4:00 p.m., Sanusi saw Toonkey in a breezeway at the apartment complex and bought crack from him.
After dark that day, Sanusi was in her apartment with Bobby Lee Jones and McCauliffe when someone knocked on the door. Sanusi looked out the peephole and saw Toonkey, a man named Wayne who had been smoking crack in the apartment earlier that day, and appellant. Sanusi did not know appellant at the time, but “it was normal for Toonkey to come knock on [her] door,” so she opened the door. Wayne walked in the apartment and sat down. Appellant walked in with a gun in his hand and told everyone to get down. Appellant told Sanusi to lock the door, and she complied. Appellant told everyone to “get down” or he would kill them all. Sanusi sat down on the ground and “absolutely” got a good look at appellant. Appellant ordered Toonkey to get up and put everything in his pockets on the table. Toonkey began to get up but appellant changed his mind and told Toonkey to get back down. Appellant told everyone else to “get in the other room.”
Sanusi got up and started toward the back room, but Jones “was just confused” and “was going to go out the door.” Appellant told Jones, “you don't believe I'll shoot you, do you,” and Sanusi told Jones “he's talking about this room.” Jones came toward Sanusi, and everyone but Toonkey and appellant went into the back bedroom and out a sliding door onto a patio. Everyone jumped off an adjacent patio, but Sanusi got her pants caught on a fence and was hanging sideways. Sanusi heard one gunshot, then “two more right behind it.” Jones had disappeared, but McCauliffe and Wayne helped Sanusi down. While Sanusi was hanging on the fence, she saw appellant coming down the stairs and “leaving out the breezeway.” Sanusi told McCauliffe and Wayne to be quiet because she was hanging there and her stairs are real close to where she was hanging.
After Sanusi got down off the fence, she ran toward a parking lot and saw appellant driving away in a black truck. Sanusi, McCauliffe, and Wayne went back to the apartment to see if Toonkey was still alive. Toonkey was on the floor “shaking,” but he was alive. Sanusi told McCauliffe to “take the paraphernalia out of the kitchen drawer.” Sanusi saw Jones' cell phone was on the table, and Sanusi grabbed the phone and told Toonkey she was getting help and “going to get his wife.” Sanusi called 911 as she ran to Toonkey's apartment and got Toonkey's wife, who ran ahead to Sanusi's apartment. Sanusi could already hear the sirens, so she just waited downstairs.
About a week later, a detective showed Sanusi a photographic lineup. Sanusi picked appellant's photograph out of the lineup and said “this looks strikingly like him.” However, she told the detective she “wasn't sure” because she was scared of “retaliation” and “just wanted to wash [her] hands of the whole thing.” A week or two later, Sanusi called the detective back because she “knew it was the guy,” and her conscience told her to call. Sanusi said it “wasn't true” that she “wasn't sure.” Sanusi said she “was sure” but “scared to death.”
Jones testified he was walking in the apartment complex on the night of the murder and saw Toonkey sitting with appellant on a stairway. Jones said “what's up” to the two, and they responded. Jones knew appellant was Toonkey's “friend,” and Jones had seen appellant “a lot.” When Jones had previously seen appellant with Toonkey, Toonkey said appellant was his “homeboy” but did not give appellant's name. Jones went to Sanusi's apartment and then left by a different way to visit a friend before coming back to Sanusi's apartment. McCauliffe let Jones in, and Jones was about to sit down when somebody else knocked on the door. Someone asked who it was, and Toonkey gave his name. Jones thought McCauliffe opened the door, and Toonkey walked in, followed by “the guy who was with him outside,” appellant. Appellant said, “everybody get on the damn floor,” and Jones “just hit the floor automatically.”
When appellant told everyone to get down, Jones recognized appellant's voice as “the same voice with the guy that sits out -- was sitting outside with Toonkey.” Jones also recognized appellant's tennis shoes as the same ones appellant had been wearing earlier. Appellant said, “Toonkey, you know what I want. Unass it.” Jones explained that “unass it” meant “give it up.” Appellant ordered Jones, Sanusi, and McCauliffe into the backroom, and they fled outside. Jones jumped off a balcony, breaking his ankle. As soon as Jones hit the ground, he heard gunshots. Jones limped away, and his granddaughter's boyfriend helped him to sit in front of his apartment door until an ambulance came. Jones was later shown a photographic lineup in which he identified appellant as the man who shot Toonkey.
Richard Conway testified he was the “maintenance guy” at Mayan Palms and lived in the apartment directly below Sanusi. Conway saw Toonkey talking with appellant in a breezeway about 8:00 p.m. on November 2, 2008. Conway had previously seen appellant at the apartment complex about two weeks before. Conway had conversations with Toonkey and appellant on a “few occasions” and had seen appellant “a couple times.” Conway went in his apartment, took a shower, and heard three gunshots when he got out of the shower. About a minute later, Conway heard “bumping” at his patio door and people talking. Conway looked out through closed blinds in his bedroom and saw “the people who lived upstairs, they were climbing down the patio.” Conway saw two men helping a woman get her pants untangled from the fence. Conway finished getting dressed and went out his front door. Jones was standing outside yelling and standing on one leg. Sanusi and McCauliffe came running back to the stairwell, and police arrived five or ten minutes later. About a month later, police showed Conway a photographic lineup in which Conway identified appellant.
Dr. Keith Pinckard, a medical examiner at the Southwestern Institute of Forensic Sciences, testified he performed the autopsy on Toonkey's body. Toonkey had three bullet wounds, one entering the right side of his chest, one fracturing the bone in his left upper arm and continuing into his heart, and one in his upper right arm. Pinckard testified the bullet wounds were consistent with the victim being down on his knee and somebody else standing over them and firing.
Appellant was indicted for capital murder. The indictment alleged appellant caused the death of Tony Williams and was then and there in the course of committing and attempting to commit the offense of robbery. The indictment also listed a prior aggravated assault conviction. Prior to trial, the State filed a “Notice of Extraneous Offenses” listing the following prior crimes, wrongs, or acts the State intended to introduce at trial: driving while license suspended, driving while intoxicated, unlicensed carrying of a handgun, criminal trespass, evading arrest, and aggravated assault. At the conclusion of the evidence, the jury convicted appellant of capital murder, and this appeal followed.
We first address appellant's second issue, in which he challenges the legal sufficiency of the evidence to support his conviction. Specifically, appellant argues the evidence was insufficient to establish his identity as “the shooter.” In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lucio v. State, 351 S.W.3d 878, 894-95 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. The jury may resolve conflicts in the evidence, accept one version of the facts, disbelieve a party's evidence, and resolve any inconsistencies in favor of either party. McIntosh v. State, 855 S.W.2d 753, 763 (Tex. App.-Dallas 1993, pet. ref'd). Appellant challenges the testimony of Sanusi and Jones as that of “drug users who were likely high at the time of the event in issue.” Appellant also cites his alibi evidence consisting of testimony from his mother, father, girlfriend, and child of his girlfriend that he was driving and then watching a football game at the time of the offense. However, the jury was free to disbelieve this testimony and believe the testimony of Sanusi and Jones and Conway. Id. In reaching this conclusion, we find it significant that Conway and Jones had seen appellant prior to the day of the murder and recognized him on the day of the murder. Further, the jury was free to believe Jones' testimony that appellant told Toonkey at gunpoint to “unass it,” meaning give up his possessions. Id. Sanusi testified appellant told Toonkey to get up and put everything in his pockets on the table. Although nobody actually saw appellant shoot Toonkey, Sanusi and Jones heard three gunshots within moments of seeing appellant holding a gun on Toonkey. Conway also heard three gunshots. The medical examiner testified Toonkey died from three gunshot wounds. We conclude this evidence was legally sufficient to establish appellant killed Toonkey while in the course of committing or attempting to commit robbery. See Brooks, 323 S.W.3d at 895. We overrule appellant's second issue.
In his first issue, appellant argues the trial court erred in not declaring a mistrial when a juror nodded off during trial. During trial, the following exchange took place: [THE COURT]: On the record. Juror Number 1 . . . has repeatedly nodded off throughout this trial. I just want the record to reflect that at the break I did go back, pulled her out of the Jury Room and instructed her that she needed to do whatever she needed to do to keep herself awake, coffee, caffeine, whatever. So I instructed her that she needs to -- and I'll be watching just to make sure she stays awake.
[PROSECUTOR]: Thank you, Judge.
[DEFENSE COUNSEL]: Your Honor, I have two things.
[THE COURT]: Let's go ahead and line them up.
[DEFENSE COUNSEL]: I'm going to request a mistrial at this time. Obviously, we don't have a juror. I think the record is clear that she's slept for some various significant portions of today's testimony.
[THE COURT]: I don't think it's been -- I've watched her. I don't think it's significant portions. I think that she's had her head down a lot, too, so it's hard to tell whether she's asleep or her head is down. So whether -- so I've watched her throughout the course of trial. I just noticed it this last time.
[DEFENSE COUNSEL]: Well, and I'm concerned, Your Honor. Again, we'd request a mistrial based on the fact that we have a juror that by every appearance and by what's on the record so far, hasn't been paying attention or hasn't been awake for some portion of the trial. We would also object to the Court's admonition of her. We don't know -- I'd have to look at the law. I don't know that it's necessarily inappropriate the way the Court did it, but it could cause her to have some form of bias one way or the other, or have some belief that could affect her ability to be a fair and impartial juror. So based on that, we'd ask for a mistrial, as well.
[THE COURT]: I'm going to disagree with that. I very politely asked to make sure that even if her head is down, that we can see that she's awake. So your objection is noted.
[DEFENSE COUNSEL]: And so the record is clear, I'm not in any way suggesting that the Court wasn't polite. I'm just suggesting that I -- I don't know and believe that the fact that the Court admonished her may create possible bias. That's all.
We review a trial court's denial of a motion for a mistrial for an abuse of discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We view the evidence in the light most favorable to the trial court's ruling, considering only those arguments before the court at the time of its ruling. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We uphold the ruling if it was within the zone of reasonable disagreement. Id. A mistrial is an appropriate remedy in extreme circumstances for a narrow class of highly prejudicial and incurable errors. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). A mistrial is required only when the impropriety is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced in the minds of the jurors. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Because a mistrial is an extreme remedy, a trial court should grant it only when residual prejudice remains after less drastic alternatives are explored. Barnett v. State, 161 S.W.3d 128, 134 (Tex. App.-Fort Worth 2005), aff'd, 189 S.W.3d 272 (Tex. Crim. App. 2006) Here, trial counsel stated the record was “clear” that the juror in question “slept for some various significant portions of today's testimony.” The trial court disagreed, saying “I don't think it's significant portions.” Counsel reiterated that the juror had not been “paying attention” or had not “been awake for some portion of the trial.” The trial court again stated, “I disagree with that.” The trial court stated “I've watched [the juror] throughout the course of trial. I just noticed it this last time.” The “it” the trial court noticed appears to be the juror sleeping. Trial counsel's undisputed statements may be accepted as both true and sufficient to preserve an issue for appellate review. Thieleman v. State, 187 S.W.3d 455, 457 (Tex. Crim. App. 2005). However, such an assertion does not conclusively prove the event occurred. Id. at 458. We also note the record shows the trial court brought the juror's nodding off to the attention of trial counsel. If trial counsel had been aware of a juror nodding off during trial, he had a duty to bring it to the attention of the trial court.
Further, the trial court in this case contradicted counsel's characterization of the juror's “nodding off.” The trial court disagreed that the juror slept through “significant portions” of trial and appeared to state the trial court instructed the juror to “do what she needed to do to keep herself awake” after watching the juror “throughout the course of trial” and “just notic[ing] it this last time.” The record does not contain any further elaboration about the allegedly sleeping juror; no witnesses were called to testify on this issue, nor was a bystander's bill of exception made to develop a record and place the issue before the appellate court. See id. at 457 n.2; see also Tex. R. App. P. 33.2(c)(3). Further, at the time the trial court called attention to the juror who was nodding off, only Toonkey's wife and Conway, neither of whom were present at the scene of the murder, had testified. Jones was in the process of testifying that he returned to Sanusi's apartment and was about to sit down when someone knocked on the door. After a recess during which the trial court admonished the juror, Jones resumed his testimony concerning who was present in Sanusi's apartment when he came in. Sanusi had not yet testified. Based upon the record before us, we cannot say that the trial court abused its discretion by denying appellant's motion for mistrial. We overrule appellant's first issue.
In his third issue, appellant argues he was denied a fair trial when the prosecutor struck at appellant over the shoulders of counsel. Specifically, appellant complains of the prosecutor's statement during closing argument that defense counsel “keeps referring to Tony Williams as a drug dealer. He's hoping maybe it's going to make you not want to hold Quintero Jones responsible for his death.” Appellant objected the State was striking appellant over counsel's shoulders. The trial court sustained the objection and granted appellant's instruction to disregard. The trial court denied appellant's request for a mistrial.
Assuming without deciding the prosecutor's comments in this case were improper, improper comments on defense counsel's motivation have never been held to amount to a constitutional violation. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Instead, such comments are characterized as falling outside the areas of permissible argument. Id. We find that such comments constitute “other errors” within the purview of Rule 44.2(b). Id. Rule 44.2(b) provides that: “Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” In assessing whether such error warrants reversal, courts generally look to three factors: (1) 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 conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley, 983 S.W.2d at 259.
Here, the prosecutor's comment came in the context of defense counsel's prior argument that there was no evidence of appellant's guilt, and the only evidence was “the three drug people saying this.” Defense counsel argued Sanusi was a “drug supplier” and “her supplier was the dead guy.” Defense counsel argued there were “some problems out there in that complex,” and they were “not problems because of [appellant].” Defense counsel went on to say that he did not “get the impression those problems have been resolved by [appellant's] arrest.” Thus, the prosecutor's reference to counsel's motivation in referring to Toonkey being a drug dealer was not severe, taken in the context of defense counsel's argument. The trial court instructed the jury to disregard the prosecutor's statement. See Martinez v. State, 17 S.W.3d 677, 691 (Tex. Crim. App. 2000) (“Even when the prosecutor mentions facts outside the record during argument, an instruction to disregard will generally cure the error.”). Finally, as discussed above, the evidence against appellant was strong, with multiple witnesses placing him at the murder scene holding a gun on Toonkey and telling him to empty his possessions on a table before the witnesses heard three gunshots. Under these circumstances, we conclude the prosecutor's comments in this case did not affect appellant's substantial rights and must be disregarded. See Mosley, 983 S.W.2d at 259. We overrule appellant's third issue.
We affirm the trial court's judgment.
DAVID L. BRIDGES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
091412F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
QUINTERO JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-09-01412-CR
Appeal from the 291st District Court of Dallas County, Texas. (Tr.Ct.No. F08-63848-U).
Opinion delivered by Justice Bridges, Justices O'Neill and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 31, 2012.
DAVID L. BRIDGES
JUSTICE