Molina v. State

Full title: URBANO MOLINA, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 8, 2006

No. 05-05-01599-CR (Tex. App. Nov. 8, 2006)

Opinion

No. 05-05-01599-CR

Opinion issued November 8, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-01420-KP. Affirmed.

Before Justices MOSELEY, FRANCIS, and MAZZANT.

OPINION

Opinion By Justice MAZZANT.

Urbano Molina appeals his conviction for indecency with a child. In three issues, he alleges the trial court erred by failing to require the State to elect the specific act on which it was relying for conviction; the trial court erred by denying his motion for mistrial based on prosecutorial misconduct; and ineffective assistance of counsel. We affirm the trial court's judgment.

Background

Appellant was indicted for the offense of indecency with a child. Tex. Pen. Code Ann. § 21.11. The indictment contained one enhancement paragraph. At the end of a jury trial, the jury found appellant guilty. After a separate punishment hearing, the jury found the enhancement paragraph true and sentenced appellant to forty-five years in prison. Appellant's motion for new trial was overruled by operation of law.

Discussion

Election In his first issue, appellant contends the trial court erred in failing to require the State to elect the specific act on which it was relying for conviction in this multiple transaction case. Appellant also argues the trial court's failure to require such an election abridged his right to a unanimous jury verdict. If one act of sexual assault is alleged in the indictment but more than one act is shown by the evidence presented at trial, "the State must elect the act upon which it would rely for conviction." O'Neal v. State, 746 S.W.2d 769, 771 (Tex.Crim.App. 1988). After the State rests its case-in-chief, upon a timely request by the defendant, the trial court must order the State to elect the act upon which it will rely for conviction. Phillips v. State, 193 S.W.3d 904, 909 (Tex.Crim.App. 2006); O'Neal, 746 S.W.2d at 771. Failure to do so constitutes error. O'Neal, 746 S.W.2d at 772. Absent a request, however, the State is not required to make an election and no error is implicated. See O'Neal, 746 S.W.2d at 771 n. 3; Crawford v. State, 696 S.W.2d 903, 906 (Tex.Crim.App. 1985). In the present case, appellant did not request the State to make an election and we find no authority suggesting the trial court should have ordered one on its own motion. Therefore, appellant has failed to preserve his complaint regarding the trial court's failure to order the State to make an election and any resulting abridgment of his right to jury unanimity. Appellant's first issue is overruled.

Prosecutorial Misconduct

In his second issue, appellant contends the trial court erred in denying his motion for mistrial based on prosecutorial misconduct. The State responds that error was not preserved on this issue because defense counsel did not ask for an instruction to disregard nor did he specify that prosecutorial misconduct was the reason for the objection. Background During direct examination of defense witness Rudy Molina, appellant's brother, the prosecutor laughed. The relevant testimony was as follows:

Q. [DEFENSE COUNSEL:] And did you have a conversation with Angela whether or not Urban had ever done anything to her?

A. Yes.

Q. Okay. Where was that?

A. McDonald's.

Q. And when was that?

A. Uh, '97.

Q. What did she tell you? What did Angela tell you?

A. I asked her about Urban and —

Q. First, exactly how did you phrase it? How did you ask her?

A. Has Urban ever tried anything on you?

Q. Okay. And —

A. She said no.

Q. How did she respond?

A. She didn't respond. She just said no.

Q. Okay. And was it Christina that asker her — was it Ollie that asked you to say that?

A. No, Christina.

Q. What did she say?

A. No, she said no, but my grandma wants me to say that.

Q. Okay.

[PROSECUTOR:] (Indicating).

[DEFENSE COUNSEL:] Your Honor, I'm going to object to the prosecutor laughing in court to the response. It is childish and it is juvenile and I need the record to reflect that. And as a matter of fact, I might need to have a motion outside a, you know, a bystander's motion outside the presence of this jury.

THE COURT: Sustained. Mr. Tinajero, if you will refrain from any sidebar.

[DEFENSE COUNSEL:] And I will move for a mistrial.

THE COURT: Denied.

Shortly thereafter, as the argument between the prosecutor and defense counsel became increasingly heated, the trial court excused the jury from the courtroom and admonished both attorneys the court would no longer tolerate "any more of this one-upping the other person." Defense counsel then made a "bystander's bill" concerning the prosecutor's laughter:

[DEFENSE COUNSEL:] Okay. I am going to need to call a witness that was here. Lori, I'm afraid I'm going to call you just to the fact that he laughed.

THE COURT: I heard it.

[DEFENSE COUNSEL:] That is what I am going to do. I am going to have to object as prosecutorial misconduct the fact that — I mean that is DA school 101, that is courtroom decorum 101, you do not show a face or any type of response to a witness's testimony. And that was a blatant out and out laugh to this witness's response.

And you know, jurors are very much influenced by the way that the counsel responds to witnesses' testimony. I have seen people get thrown in contempt for eye rolling, especially in light of other things that have been in the news lately. These jurors look upon that thing and I think it is unprofessional. And again, I want the record to reflect that there were several people that heard the response by the prosecutor, and that is actually my motion.

THE COURT: Mr. Fay, I did hear the laughter and I believe when you objected, I did sustain it.

[DEFENSE COUNSEL:] Okay.

THE COURT: Mr. Tinajero, I'm asking you, warning you, please refrain from commenting either by sound, and as far as anything sidebar unless you would like to approach the Bench first before anything of that matter is addressed.

[PROSECUTOR:] Uh, yeah, I admit to doing it. It was wrong. It was totally unprofessional, and you will not see it from me again.

THE COURT: Thank you. I appreciate it. Anything else?

[DEFENSE COUNSEL:] Nothing else.

THE COURT: Thank you. You can bring the jury back in.

Standard of Review A mistrial is an extreme remedy for prejudicial events occurring during the trial process. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). We review a trial court's decision to deny a mistrial under an abuse of discretion standard. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004); see also Russeau v. State, 171 S.W.3d 871, 885 (Tex.Crim.App. 2005). We will uphold the trial court's ruling if it is within the zone of reasonable disagreement. Wead, 129 S.W.3d at 129; Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (en banc) (op. on reh'g). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77. Applicable Law and Analysis To preserve error in cases involving prosecutorial misconduct, the defendant must (1) make a timely and specific objection; (2) request an instruction that the jury disregard the matter improperly placed before the jury; and (3) move for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993). The request for an instruction that the jury disregard an objectionable occurrence is essential only when the instruction could have had the desired effect, which is to enable the continuation of the trial by an impartial jury. Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App. 2004). The party who fails to request an instruction to disregard will have forfeited appellate review of that class of events that could have been "cured" by such an instruction. Id, But if an instruction could not have had such an effect, the only suitable remedy is a mistrial, and a motion for a mistrial is the only essential prerequisite to presenting the complaint on appeal. Id. Faced with incurable harm, a defendant is entitled to a mistrial, and if denied one, will prevail on appeal. Id. Appellant acknowledges he did not request an instruction to disregard, but argues the prosecutorial misconduct here was so prejudicial and inflammatory that an instruction could not have cured the harm. We disagree. It is within the discretion of the trial court to deny a mistrial when an instruction to disregard the matter would cure any resulting harm. See id. at 72. Given the isolated and momentary nature of the prosecutor's behavior and the absence of any indication the jury was influenced by it, we do not believe the prosecutor's conduct was of such a character that the harm, if any, could not have been cured by an instruction to disregard. See McFarland v. State, 834 S.W.2d 481, 488 (Tex.App.-Corpus Christi 1992, no pet.) (prosecutor's "snickering" at comments made by defense counsel during final jury argument was not so inflammatory that it could not have been cured by trial court's instruction to disregard). Because an instruction to disregard the prosecutor's behavior would have cured any resulting harm, we therefore conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. Appellant's second issue is overruled.

Ineffective Assistance of Counsel

In his third issue, appellant claims he was denied effective assistance of counsel. Appellant contends trial counsel was ineffective because he failed to request an election at the conclusion of the State's case-in-chief and failed to request an instruction to disregard the prosecutor's laughter at the time the trial court sustained his objection. The State responds, in part, that appellant has not developed a sufficient record to determine ineffective assistance. We agree. 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 counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The record must be sufficiently developed to overcome the strong presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). As a general rule, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Furthermore, without evidence of the strategy involved concerning counsel's actions at trial, the reviewing court will presume sound trial strategy. Thompson, 9 S.W.3d at 814; see also Rylander, 101 S.W.3d at 111 (Tex.Crim.App. 2003). As the court of criminal appeals stated in Andrews v. State, "we commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it." Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). Further, trial counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). In the present case, appellant filed a motion for new trial but the only issue raised in the motion was that the verdict was contrary to the law and the evidence. The issue of ineffective assistance of counsel was not raised and no evidentiary hearing was held. Furthermore, there is no affidavit from counsel in the record. As a result, the record is silent as to the possible reasons for defense counsel's actions. It is possible that failing to request an election could have been sound trial strategy. See Brown v. State, 6 S.W.3d 571, 576 (Tex.App.-Tyler 1999, pet. ref'd) (without an election, appellant was free to urge jeopardy bar to any subsequent prosecution for any of the offenses presented at trial). It is also possible counsel thought an instruction to disregard would merely call jurors' attention to the prosecutor's laughter without curing the harm. We conclude that with regard to failing to request an election and an instruction to disregard, appellant has not met the first part of Strickland because the record does not contain any evidence concerning trial counsel's reasons for choosing the course he did. Absent evidence supporting the underlying rationale for the alleged shortcomings in counsel's performance and given the strong presumption that counsel was effective, we cannot conclude counsel's performance fell below the professional norm. Having failed to establish either part of Strickland, appellant's third issue is therefore overruled. We affirm the trial court's judgment.