Opinion
No. 05-04-00668-CR
Opinion Filed May 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-81815-03. Affirmed.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Billy Ray McBride of sexual assault, and the trial court assessed punishment, enhanced by prior felony convictions, at twenty-five years in prison. In three grounds of error, appellant complains the trial court reversibly erred in refusing to grant a mistrial and denying his motion to suppress DNA evidence. We affirm. To earn money for a trip to Six Flags over Texas, K.E. went to work with appellant for one day trimming trees. Appellant is the cousin of K.E.'s father. Once they completed the job, appellant and K.E. went to cash the check. Afterwards, appellant asked K.E. to go to the cemetery to visit her grandfather's grave. K.E. testified that at the cemetery, appellant raped her and threatened to hurt her. He told K.E. not to tell anyone what happened and took her back to his house, where several relatives were. K.E. did not tell any of them what had happened but had a cousin take her to her grandmother's house. Her mother called about 5 p.m., and K.E. told her that appellant had raped her. K.E.'s mother told K.E. to have someone take her to the hospital; K.E. did. At the hospital, K.E. talked to the police and a rape kit examination was done. Semen was found in K.E.'s vagina. The sheriff's office arrested appellant, who denied having sex with K.E. A deputy swabbed the inside of appellant's mouth for DNA testing, which ultimately showed that the semen found in K.E.'s vagina came from appellant. Appellant's defense at trial, set out in opening statement and suggested during cross-examination of K.E., was that K.E. consented to having sex with him in exchange for money. He also called three relatives who were at his house that day. Each testified that K.E. appeared normal and was not crying or upset after she returned to the house with appellant. Appellant did not testify. In his first ground of error, appellant complains the trial court erred in denying his motion for mistrial after the prosecutor, in closing argument, commented on appellant's failure to testify. In particular, appellant complains about the following highlighted argument:
You cannot presume evidence that is not in front of you, that did not come from that witness stand. So prostitution, ladies and gentlemen, it's gone, it's knocked out, it's not a possibility.What about this feud we heard about? We never heard anything that puts [K.E.] at odds with anyone in that family. And again, that's something to detract you and distract you from what actually happened that day in July. That's what you need to think about. You cannot presume things that you did not hear and you do not have evidence in front of you on. Now then, without consent. We know it's without her consent because she told you it's without her consent, and without anyone getting up and without hearing anything to the contrary, the only evidence you have — Appellant objected on the basis of the "Fifth Amendment right not to testify." The trial court sustained the objection. Appellant moved for a mistrial, which the trial court denied. Then, appellant asked for an instruction to disregard, which the trial court also denied. On appeal, appellant complains only about the ruling on his request for a mistrial. 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) and Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003), cert. denied, 124 S. Ct. 2837 (2004)). We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Simpson, 119 S.W.3d at 272. In our review for abuse of discretion, we balance three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the verdict assessed absent the misconduct. Hawkins, 135 S.W.3d at 77 (applying Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) factors to review of mistrial ruling). Severity of the Misconduct. Immediately before the complained-of argument, the prosecutor rejected appellant's defense that K.E. had prostituted herself in exchange for money, saying there was no "absolutely zero, zero evidence" to support that theory. The prosecutor argued that jurors had to base their decision on the evidence before them, and the only evidence was K.E.'s testimony that she did not consent. Under these circumstances, we initially question whether jurors would necessarily and naturally take the argument as a comment on appellant's failure to testify. Bustamante v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001) (explaining that argument must be viewed from jury's standpoint). Regardless, once the trial court sustained the objection, the prosecutor immediately de-emphasized her remark by focusing on K.E.: "[K.E.] told you, did you consent to this? No. In fact, she cried when she told you about it. That's how you know that this sexual assault was without consent." Finally, the prosecutor did not repeat the argument. In fact, in fourteen pages of argument by the State, the complained-of comment took up only two lines. In sum, the error was neither egregious nor repeated. Curative measures. Although the trial court denied appellant's request to instruct the jury to disregard the comment at the time it was made, two other sources provided such an instruction. First, after the prosecutor's argument, defense counsel focused on the Fifth Amendment, the same amendment he cited in making his objection, and specifically told jurors, without objection, to disregard the prosecutor's argument:
The Constitution says there's a Fifth Amendment right not to testify. You're not supposed to consider that for any reason whatsoever. You're instructed to disregard that, you've been instructed to disregard things. You are to disregard that. The Constitution believes that you can and that's whey we do that. Disregard it. Disregard the comments by the prosecutor that aims at why didn't you hear from [appellant.] Disregard it.In addition to the defense attorney's very specific statements, the trial court also instructed the jury in the written charge as follows:
Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and, in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify, and you are instructed that you cannot and must not refer or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.We believe these two curative measures, coupled with the prosecutor's refocusing of the argument onto K.E.'s testimony, were sufficient to adequately communicate to the jury that it could not consider appellant's failure to testify as a circumstance against him. Certainty of the verdict. After reviewing the record, we are confident that the jury would have reached a guilty verdict absent the prosecutor's complained-of comment. Appellant initially told the police he did not have sex with K.E. DNA testing, however, proved otherwise. At trial, appellant's defense was that K.E. prostituted herself in exchange for money to go to Six Flags Over Texas. He presented no direct evidence of that claim, but did call three relatives who saw K.E. after the assault but said she acted normal. In contrast, K.E. testified appellant took her to a cemetery in a remote part of the county, told her he would hurt her if she did not have sex with him, and then sexually assaulted her. She told jurors, in detail, how the attack occurred and explained that she did not tell relatives at appellant's house because she was afraid he would find out. Instead, she found a ride to her grandmother's house, where she waited until her mother called. K.E. reported the assault to law enforcement the same day. In addition to the evidence, we note that jurors did not convict appellant of the greater charge of aggravated sexual assault; rather, they found him guilty of the lesser-included offense. This suggests that the jury did not irrationally convict appellant based on his failure to testify, but thoughtfully considered the evidence to arrive at a verdict that fit the facts of this case. Considering all the factors, we conclude the trial court did not err in denying appellant's motion for mistrial. We overrule the first ground of error. In his second ground of error, appellant complains the trial court erred in denying his motion for mistrial after K.E. testified that appellant had been to prison. During her direct examination, K.E. explained how, after stopping at the cemetery, appellant kept looking at her and asking for a hug. K.E. explained that she told appellant to leave her alone, but he kept trying to touch her. Finally, she threatened to tell her mother. K.E. testified that, in response, appellant "told me that he didn't care because he was going back to prison anyway." Appellant objected to the testimony, and the trial court sustained the objection and told the jury to disregard the statement. As a general rule, a prompt instruction to disregard inadmissible testimony will be deemed sufficient to cure the error. Delgado v. State, 986 S.W.2d 306, 309 (Tex.App.-Austin 1999, no pet.). Assuming K.E.'s testimony was inadmissible, we conclude the instruction to disregard cured any error. See Pryor v. State, 651 S.W.2d 22, 25 (Tex.App.-Dallas 1983, pet. ref'd) (concluding witness's comment that defendant had been in prison cured by instruction) ; Delgado, 986 S.W.2d at 309 (same); Thomas v. State, 651 S.W.2d 409, 412 (Tex.App.-Fort Worth 1982) (same), rev'd on other grounds, 645 S.W.2d 798 (Tex.Crim.App. 1983). Moreover, the same evidence came in later yet appellant does not complain of it on appeal. Specifically, one of appellant's witnesses, his sister, in a nonresponsive answer to the prosecutor's question, testified that appellant had been in prison "almost all of his life." Appellant waited to object until the witness had finished testifying and the jury was out of the courtroom. Once jurors returned to the courtroom, the judge instructed them to disregard the statement that appellant had been to the penitentiary. Given that the same evidence came in later but appellant does not complain about it on appeal, we fail to see how K.E.'s testimony could be the basis for reversible error. We overrule the second ground of error. In his third ground of error, appellant complains the trial court erred in denying his motion to suppress DNA evidence obtained as a result of a warrantless search and seizure. Specifically, he argues he did not voluntarily consent to swabs of his mouth being taken for DNA testing. Appellant was arrested on July 16, 2003 and put in the Collin County Jail. That same day, sheriff's Sergeant Mitch Sellman interviewed appellant. The interview was videotaped. Sellman began by telling appellant he wanted to get his "side of the story." He also said he wanted appellant to give a swabbing of his mouth. Sellman told appellant that swabbing was "very painless and just the quickest and most easy way to do it, and this prevents me from having to get a search warrant, take you to the hospital, draw blood, poke you. . . ." Sellman told appellant the "choice" was his, but that he preferred to do the swab. Sellman told appellant his rights, appellant silently read his rights, and then initialed that he waived them. Sellman explained to appellant that part of his investigation was to gather evidence, and he said physical evidence was collected from K.E. at the hospital. That evidence, said Sellman, confirmed that a sex act occurred. Sellman began explaining the grand jury process and, at that point, appellant asked for a lawyer "before I say anything because I can tell you right now, I didn't mess with that girl." Sellman asked if appellant wanted to do the oral swabbing, and appellant replied, "For what? You got a lawyer?" Sellman was preparing to leave the room when appellant said, "Okay, might as well." For the next several minutes, Sellman filled out paperwork and appeared to be reading instructions on how to take the sample. During this time, appellant did not indicate any reluctance to submit to the test and eventually gave a sample. On appeal, he complains that his consent to search was not voluntary because (1) he was in custody, (2) he was not told he could refuse the search, and (3) he told Sellman he wanted an attorney. Appellant argues that his actions on the videotape "clearly indicate that [he] did nothing more than submit to a show of authority by Sergeant Sellmant." Having viewed the videotape, we disagree. We review a trial court's ruling on a motion to suppress evidence under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Under this standard, we view the evidence in the light most favorable to the trial court's ruling, affording almost total deference to findings of historical fact supported by the record. Id. However, when mixed questions of law and fact exist which do not turn upon an evaluation of credibility and demeanor, we review the trial court's decision under a de novo standard. Id. Consent is a well-established exception to the constitutional requirements of both a warrant and probable cause. Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000). The consent must be voluntary, which is question of fact determined from a totality of the circumstances surrounding the alleged consent. Id. To be valid, the consent must "not be coerced, by explicit or implicit means, by implied threat or covert force." Id. Although the federal constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that a defendant voluntarily consented. Id. If the record shows a finding by clear and convincing evidence that consent was freely given, we will not disturb that finding. Id. There is nothing on the videotape that suggests appellant was coerced, either explictly or implicitly, into giving the buccal swab sample of his DNA. From the beginning, Sellman told appellant the "choice" was his as to whether he wanted to give the oral swabbing. He explained that if appellant did not, he would obtain a search warrant and then take appellant to the hospital for a blood sample. Late in the interview when Sellman asked appellant to give a sample, appellant balked. In response, Sellman was preparing to leave the room when appellant then offered to give the sample. Over the next several minutes, Sellman was filling out paperwork and reading what appears to be the instructions for the testing. During this time, appellant did not indicate that he had changed his mind or voice any reluctancy. Viewing the totality of the circumstances, we conclude the record shows appellant freely consented to the swabbing of his mouth. Consequently, the trial court did not abuse its discretion in denying appellant's motion to suppress the DNA evidence. We overrule the third ground of error. We affirm the trial court's judgment.