Opinion
NO. 03-16-00287-CR
04-27-2018
Joseph Richlen, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-15-0253 , HONORABLE R. BRUCE BOYER, JUDGE PRESIDING MEMORANDUM OPINION
A jury convicted appellant Joseph Richlen of the offense of aggravated assault with a deadly weapon. The district court rendered judgment on the verdict and sentenced Richlen to 50 years' imprisonment. In a single issue on appeal, Richlen asserts that the district court abused its discretion in denying his motion for mistrial. We will affirm the district court's judgment.
See Tex. Penal Code § 22.02(a)(2). The record reflects that this was Richlen's second trial for this offense. The jury had deadlocked following the first trial.
BACKGROUND
The jury heard evidence that on December 28, 2013, Randy Mainord, the complainant in the case, was inside his home watching television when he heard the "screeching noise" of a vehicle pull up to his house and a man yell out, "Get your ass out here, you fucking pussy. I got some buckshot for your ass." Mainord testified that he got up from his chair, yelled at the person to identify himself, and heard the person reply, "It's Cornbread. Get your ass out here, bitch." According to Mainord, shortly thereafter, "a shot came through the window" that hit Mainord in his hand and "took off" three of his fingers. Mainord recounted that he "hit the ground" and "laid [there] for probably ten minutes or so," hoping that the shooter would leave. Mainord then "stuck [his] head out the door," "didn't see nobody," and "took off running" to get help from a neighbor.
Multiple witnesses testified that "Cornbread" was Richlen's nickname. The State's theory of the case was that Richlen had shot Mainord after learning that Mainord had been "intimate" with Richlen's ex-girlfriend. According to the evidence presented, Detective Manuel DeLaRosa of the Hays County Sheriff's Office had interviewed Richlen following the shooting. During the interview, Richlen acknowledged that his nickname was "Cornbread" but denied shooting Mainord. Richlen also made several statements during the interview indicating that he had committed other offenses in the past, including that he was a "convicted felon" and a "confirmed gang member" and that his "M.O." was "UUMV," i.e., unauthorized use of a motor vehicle. The interview was recorded, and a redacted copy of the recording (with all references to extraneous offenses removed) was admitted into evidence. Before the recording was played for the jury, the district court instructed the jury as follows:
Richlen made these statements in an apparent attempt to claim that he could not have been the shooter because he could not own a firearm. Specifically, Richlen told DeLaRosa the following: "I'm a convicted felon, I can't own no weapon."; "I'm a convicted felon and a confirmed gang member. I can't own a weapon of any kind."; "I've never committed a violent crime ever. That's not even my M.O. My M.O. is UUMV, man. I don't do violence."; and, "I cannot own a firearm. It's against the U.S. Constitution. It's against the Patriot Act."
In reviewing the exhibit, you may note that portions of the recording appear to have been edited or redacted. This has been done so the evidence before you will comply with evidentiary rules. Therefore, you should not speculate about the contents of the redacted portions of the exhibit, nor should you discuss why the redactions have been made or which party may have requested those redactions.The redacted recording was then played for the jury, and the trial continued.
Your deliberations in this case should be limited to the evidence before you. And the portions of the recording which have not been submitted are irrelevant to your decision in this case.
The record reflects that throughout trial, the parties attempted to avoid eliciting any testimony that referenced Richlen's prior criminal history. However, during DeLaRosa's testimony, defense counsel asked DeLaRosa if Richlen was "under arrest" at the time of the interview. DeLaRosa answered, "Yes, he was, for another—something different." DeLaRosa did not specify the offense for which Richlen had been arrested, but nevertheless, as a result of this testimony, the court included the following instruction in its written charge to the jury on guilt / innocence:
Evidence of Other Crimes or Bad Acts by the Defendant
During the trial, you heard evidence that the defendant may have committed wrongful acts not charged in the indictment. You may not consider this evidence to prove that the defendant is a bad person and for this reason was likely to commit the charged offense. To consider this evidence for any other purpose would be improper.
During the jury's subsequent deliberations, the district court received the following note written by the jury foreperson:
We were reviewing the interview [between] Det. DeLaRosa and Cornbread. In the courtroom, we listened to a version that had some redacted stuff. In the version
we now have, we are hearing stuff we never heard before. Are we supposed to have this copy?In a hearing outside the presence of the jury, the parties and the court determined that the CD containing the un-redacted copy of the recording had somehow been placed in the sleeve that should have contained the redacted CD. Consequently, when the exhibits were delivered to the jury room, the jury was given the un-redacted copy of the recording. According to the court bailiff, who had discussed the matter with the jury foreperson and then reported the incident to the court, the jury "started hearing something they didn't hear before, and so they stopped the CD. But they heard something about a conviction." When the court asked the bailiff if the jury foreperson had "turned it off immediately," the bailiff responded, "Yes, sir. She just mentioned that they did hear something about a conviction when they realized that it wasn't in their notes that they had been taking. It was part of the—that was redacted to them." The court replied, "Well, if that's the case, we'll treat it just like we would the admonishment with regards to bad acts; tell them they cannot consider it."
The record does not contain an explanation for this occurrence. However, at the conclusion of the guilt / innocence phase of trial, the prosecuting attorney proffered the following:
I just wanted to put on the record that, [so] the record is clear, this was a retrial of a previous trial that occurred in late June into early July, 2015, where the vast majority of the exhibits that were admitted at this trial were previously admitted. Those exhibits at the original trial, particularly, the Exhibit Number 65, which was the defendant's statement to Detective DeLaRosa, was played by using the actual disk that was admitted at that trial.
At this trial, the same exhibits were admitted, but all of the audio and video were played not from the disks themselves, but from copies of those disks that were on my laptop. . . .
I personally did not touch and, otherwise, manipulate or pull any of the disks in and out of any sleeves as it relates to [the] preparation for this trial. It's my understanding that all of the exhibits that were admitted at the previous trial, including Exhibit 65, were in the court reporter's possession from the time of the end of our previous trial to the beginning of this trial.
The district court then brought the jury into the courtroom, explained the situation, and proceeded to ask the jury foreperson, under oath, the following questions:
[The court]: [The jury note] indicates to me that in listening to Exhibit 65, that, apparently, some un-redacted information was coming across on this CD. Is that correct?
[Jury foreperson]: Yes.
[The court]: Can you describe that information for me?
[Jury foreperson]: We never heard—we—we didn't remember hearing before that he was a convicted felon and a known gang member. That's what we heard on this version. And we also heard that he said that his M.O. was UUMV, Unauthorized Use of a Motor Vehicle.
[The court]: Okay. Now, who was saying this on the tape?
[Jury foreperson]: Cornbread.
[The court]: Okay. Do you know at what point on the CD this occurred, how far into it?
[Jury foreperson]: Can I ask—
[Unidentified juror]: 10:06.
[Jury foreperson]: About ten-minute mark, we believe.
[The court]: Ten-minute mark?
[Jury foreperson]: And there was also something about Cornbread talking about the U.S. Constitution and the Patriot Act that we hadn't heard before.
[The Court]: Okay. Now, does everyone concur on how she has described this for me?The district court then instructed the jury as follows:
(Heads moving up and down)
[Unidentified juror]: Yes.
[The court]: Okay. Now, ladies and gentlemen, if you'll recall, in the charge itself there's a reference to bad acts, and that you are not to consider those in any type of deliberation, whether or not this event took place and whether or not this defendant actually committed this offense. Do you recall?After each juror had answered in the affirmative, the district court asked the entire panel, "Okay. And you-all, 100 percent in your own minds, can affirm that that will be the case?" The panel answered, "Yes, sir." Defense counsel subsequently asked, "Your Honor, what was the—what charge are they referencing, or what are they referencing?" The court then inquired further:
[Unidentified juror]: Uh-huh.
(Heads moving up and down)
[The court]: Okay. Well, it's the same in this particular instance. Those matters are not to be considered by you-all whatsoever with regards to whether or not they imply or implicate him in this particular offense that's been charged. In other words, his history has nothing to do with this. Do you all understand that?
[Jury panel]: Yes, sir.
[The court]: Do you feel that you can go forward knowing that that is the case and displace this information from your considerations?
[The court]: Was the charge described for you? If there was a previous conviction referred to, was that described?Richlen subsequently moved for a mistrial, which the district court denied.
[Jury foreperson]: Well, other than he—he just said his M.O. was UUMV, which we decided was Unauthorized Use of a Motor Vehicle.
[The court]: Okay. But as far as a conviction is concerned, there was no indication what that conviction was for?
[Jury foreperson]: No.
[Unidentified juror]: No, no.
[Unidentified juror]: No.
[Unidentified juror]: No.
[Unidentified juror]: Yeah, no.
[Jury foreperson]: And that he was a gang member is the other thing that he said—or known gang member.
[Defense counsel]: I have no further questions.
[The court]: All right. With that admonition, ladies and gentlemen, I'm going to ask that you return to the jury room and continue your deliberations.
Following its deliberations, the jury found Richlen guilty of aggravated assault with a deadly weapon as charged. The district court then polled the jury and asked each juror if he or she had followed the court's admonition to disregard the un-redacted information on the recording. Each juror answered in the affirmative. The district court discharged the jury, proceeded to a hearing on punishment, and subsequently rendered judgment on the jury's verdict, sentencing Richlen to 50 years' imprisonment as noted above. This appeal followed.
STANDARD OF REVIEW
In his sole issue on appeal, Richlen asserts that the district court abused its discretion in denying his motion for mistrial. "A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile." "A mistrial is an appropriate remedy in 'extreme circumstances' for a narrow class of highly prejudicial and incurable errors." Because it is an "extreme remedy," a mistrial "should be granted only if residual prejudice remains after less drastic alternatives have been explored." "Less drastic alternatives include instructing the jury to consider as evidence only the testimony and exhibits admitted through witnesses on the stand, and, if an instruction alone does not sufficiently cure the problem, questioning the jury about the extent of any prejudice." "Whether an error requires a mistrial must be determined by the particular facts of the case."
Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)).
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (citing 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)).
Jenkins v. State, 493 S.W.3d 583, 612 (Tex. Crim. App. 2016) (citing Ocon, 284 S.W.3d at 884-85).
Id.
Id.
"We review a trial court's denial of a mistrial for an abuse of discretion." "An appellate court views the evidence in the light most favorable to the trial court's ruling, considering only those arguments before the court at the time of the ruling." "The ruling must be upheld if it was within the zone of reasonable disagreement." "We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable." We reverse "only when no reasonable view of the record could support the trial court's ruling."
Balderas v. State, 517 S.W.3d 756, 783 (Tex. Crim. App. 2016) (citing Ocon, 284 S.W.3d at 884).
Ocon, 284 S.W.3d at 884 (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)).
Id.
Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).
Id. (citing Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004)).
ANALYSIS
The rules governing a trial court's decision to grant a motion for mistrial depend upon the circumstances that give rise to the request and the stage of trial at which the request occurred. In this case, the applicable rule is Texas Rule of Appellate Procedure 21.3(f), which provides that the defendant "must be granted a new trial . . . when, after retiring to deliberate, the jury has received other evidence." The Court of Criminal Appeals has applied this rule to both motions for new trial and motions for mistrial. To obtain relief under this rule, "the burden is on the defendant to show that (1) the jury 'received' evidence that was not admitted during trial, and (2) the evidence was detrimental to the defendant." "In determining whether evidence was 'received' by the jury, a court may consider how extensively the evidence was examined by the jury and whether the jury was given an instruction to disregard." "[A]n instruction to disregard at the deliberations stage is 'similar to the corrective action of an instruction to disregard evidence improperly introduced at trial.'" "If the trial court gives an instruction to disregard and that instruction is found to be effective, then under our law, it is as though the evidence was never 'received' by the jury."
See, e.g., Tex. Code Crim. Proc. art. 36.31; Tex. R. App. P. 21.3; Ex parte Pete, 517 S.W.3d 825, 830-31 (Tex. Crim. App. 2017); see also, e.g., Arizona v. Washington, 434 U.S. 497, 509-11 (1978); Ex parte Garza, 337 S.W.3d 903, 909, 915-16 (Tex. Crim. App. 2011); Ex parte Huddlestun, 505 S.W.3d 646, 657 (Tex. App.—Texarkana 2016, pet. ref'd).
See Bustamante v. State, 106 S.W.3d 738, 743 (Tex. Crim. App. 2003).
Woodall v. State, 77 S.W.3d 388, 392 (Tex. App.—Fort Worth 2002, pet. ref'd) (citing Garza v. State, 630 S.W.2d 272, 274 (Tex. Crim. App. 1981); Jones v. State, 772 S.W.2d 551, 556 (Tex. App.—Dallas 1989, pet. ref'd)).
Bustamante, 106 S.W.3d at 743 (citing Eckert v. State, 623 S.W.2d 359, 364 (Tex. Crim. App. 1981), overruled on other grounds, Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988); Stephenson v. State, 571 S.W.2d 174, 176 (Tex. Crim. App. 1978)).
Id. (quoting Eckert, 623 S.W.2d at 364).
Id.
In this case, the record supports a finding by the district court that the jury never "received" the statements in the recording that referenced extraneous offenses. Prior to the jury's deliberations, the district court had instructed the jury on multiple occasions that it could consider only evidence that had been admitted at trial and that the jury had heard in open court. First, after the jury had been duly sworn, the court provided the jury with written instructions, which the court characterized as "rules with regard to jury conduct during this trial." The district court recited these rules to the jury, including the following:
Do not investigate this case on your own. . . . Do not inspect items mentioned in this case unless they are presented as evidence in court and admitted by the Court, I should say. . . .
This rule is very important because we want the trial based on evidence presented in open court. Your conclusions about this case must be based only on what you see and hear in this courtroom because the law does not permit you to base your conclusions on information that has not been presented to you in open court.
All the information must be presented in open court so the parties and their lawyers can test it and object to it. . . .
[A]t the conclusion of all the evidence, I will submit to you a written charge. . . . Since you will need to consider all the evidence admitted by me, it is important that you pay close attention to the evidence as it is presented. . . .
I instruct you, therefore, to follow carefully all the instructions which I am giving to you, as well as others which you may later receive in the case while it is on trial.
You may keep these instructions and review them as the case proceeds. A violation of the instructions should be reported to me.
Then, before the jury heard the redacted recording played in open court, the district court instructed the jury that the redactions had been made so that the recording would "comply with evidentiary rules" and that the jury "should not speculate about the contents of the redacted portions of the exhibit, nor should you discuss why the redactions have been made or which party may have requested those redactions." At that time, the district court also instructed the jury that its "deliberations in this case should be limited to the evidence before you" and that "the portions of the recording which have not been submitted are irrelevant to your decision in this case." After the close of evidence, the district court further instructed the jury that it had "heard all the evidence in the case."
Finally, in its written charge that was read and delivered to the jury prior to deliberations, the district court instructed the jury that it had "heard all of the evidence that will be produced on whether the defendant has been proved guilty," that "[t]he evidence consists of the testimony and exhibits admitted in the trial," that the jury "must consider only evidence to reach your decision," and that the jury "must not consider, discuss, or mention anything that is not evidence in the trial." In addition, as discussed above, the written charge included an instruction prohibiting the jury from considering "[e]vidence of other crimes or bad acts by the defendant" to prove that "the defendant is a bad person and for this reason was likely to commit the charged offense" and admonishing the jury that "[t]o consider this evidence for any other purpose would be improper."
It was only after the jury had received all of the above instructions that it heard the references to extraneous offenses that were contained on the un-redacted recording. The record supports a finding that, rather than listening to the entire recording, the jury stopped the CD after it realized that the recording contained information that the jury had "never heard before." Thus, it would not be outside the zone of reasonable disagreement for the district court to have found that the jury, upon hearing the references to extraneous offenses, had followed the court's earlier instructions and disregarded the information.
See, e.g., Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011) ("The law generally presumes that instructions to disregard and other cautionary instructions will be duly obeyed by the jury."); Young, 283 S.W.3d at 882 ("We must [] 'presume[] that jurors, conscious of the gravity of their tasks, attend closely the particular language of the trial court's instructions in criminal cases and strive to understand, make sense of, and follow the instructions given them.'" (quoting Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985))); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987) ("In essence this Court puts its faith in the jury's ability, upon instruction, consciously to recognize the potential for prejudice, and then consciously to discount the prejudice, if any, in its deliberations.").
The record also supports a finding by the district court that the references to extraneous offenses were limited in scope and duration. The jury foreperson informed the court that the jury stopped playing the un-redacted recording at approximately the ten-minute mark. In that time, the following references to extraneous offenses could be heard on the recording:
[Richlen at 6:58]: "I'm a convicted felon. I can't own no weapon."Thus, the references to extraneous offenses occurred over three of the approximately ten minutes of the recording that the jury heard, and the jury affirmed that they heard no further details of Richlen's prior bad acts during that time. It would not be outside the zone of reasonable disagreement for the district court to have found that the above statements were not "of such a character as to suggest the impossibility of withdrawing the impression produced on [the] minds" of the jurors.
[DeLaRosa at 8:05]: "You just told me you're a felon."
[Richlen at 8:09]: "I'm a convicted felon and a confirmed gang member. I can't own a weapon of any kind."
[Richlen at 9:09]: "I've never committed a violent crime ever. That's not even my M.O. My M.O. is UUMV, man. I don't do violence."
[DeLaRosa at 9:52]: "You just said you're a felon, you're a gang member."
[Richlen at 9:55]: "I cannot own a firearm. It's against the U.S. Constitution. It's against the Patriot Act."
See, e.g., Gardner, 730 S.W.2d at 696-97 (concluding that prejudice from "unembellished" statement that appellant had been "in the penitentiary" could be cured by instruction to disregard); Francis v. State, 445 S.W.3d 307, 319-20 (Tex. App.—Houston [1st Dist.] 2013), aff'd, 428 S.W.3d 850 (Tex. Crim. App. 2014) (concluding that officer's reference to appellant's "'criminal history,' without any further detail, was not so inflammatory that the trial court's instruction to disregard could not cure the harm"); Cuellar v. State, 943 S.W.2d 487, 492 (Tex. App.—Corpus Christi 1996, pet. ref'd) (concluding that prejudice from discussion of appellant's gang affiliation could be cured by instruction to disregard); see also Graham v. State, No. 05-12-01568-CR, 2014 Tex. App. LEXIS 4262, at *15-16 (Tex. App.—Dallas Apr. 17, 2014, pet. ref'd) (concluding that prejudice from statement that appellant was a "felon" could be cured by instruction to disregard).
Moreover, after the jury was brought back into the courtroom, the district court provided the jury with additional instructions admonishing the jurors that they were to disregard the references to extraneous offenses that they had heard. Specifically, the district court asked the jury to recall the court's earlier instruction to disregard evidence of prior bad acts and informed the jury that the instruction was "the same in this particular instance." The court added, "Those matters are not to be considered by you-all whatsoever with regards to whether or not they imply or implicate [Richlen] in this particular offense that's been charged. In other words, his history has nothing to do with this." Each juror indicated that they understood the court's instruction and could disregard that information. Finally, after the jury had reached its verdict, the district court asked each juror if they had followed the court's admonition to disregard the un-redacted information on the recording. Each juror answered in the affirmative.
In sum, the jury was instructed: (1) on multiple occasions that it could consider only evidence that it had heard in open court and that had been admitted at trial; (2) at the time the redacted recording was played in open court, that the redacted portions of the recording were "irrelevant" to its decision in the case and that the redactions should not be the subject of any speculation or discussion among the jurors; (3) prior to its deliberations, to disregard evidence of extraneous offenses generally; and (4) during its deliberations, to disregard the references to extraneous offenses that it had heard on the un-redacted recording. Moreover, the record supports findings by the district court that the jury had in fact followed the court's instructions and that the references to extraneous offenses were not "so inflammatory as to undermine the efficacy of the trial court's instruction[s] to disregard [them]." For these reasons, it would not be outside the zone of reasonable disagreement for the district court to have found that its instructions to the jury, including its specific instruction to disregard the references to extraneous offenses contained on the un-redacted recording, were effective and, accordingly, that the evidence was never "received" by the jury so as to require a mistrial. Therefore, on this record, we cannot conclude that the district court abused its discretion in denying Richlen's motion for mistrial.
See Gardner, 730 S.W.2d at 697; see also Davis v. State, 642 S.W.2d 510, 512 (Tex. Crim. App. 1982).
See Tex. R. App. P. 21.3(f); Bustamante, 106 S.W.3d at 744; Woodall, 77 S.W.3d at 392-94; Escobedo v. State, 6 S.W.3d 1, 8-9 (Tex. App.—San Antonio 1999, pet. ref'd); see also White v. State, No. 01-15-00652-CR, 2016 Tex. App. LEXIS 11644, at *17-19 (Tex. App.—Houston [1st Dist.] Oct. 27, 2016, pet. ref'd) (mem. op., not designated for publication) (concluding that mistrial was not required when jury, after being provided with information that had not been admitted at trial, answered affirmatively when asked whether they could "continue to deliberate and disregard this outside information and reach a verdict only based on the testimony you've heard and the exhibits entered into evidence"); Boswell v. State, No. 13-11-00785-CR, 2015 Tex. App. LEXIS 9930, at *6-9 (Tex. App.—Corpus Christi Sept. 24, 2015, pet. ref'd) (mem. op., not designated for publication) (concluding that mistrial was not required when jury, after hearing prejudicial statement during its deliberations that was not admitted at trial, "timely sought guidance from the trial court" and was "provided a proper instruction to disregard the information with a reference to the appropriate section of the jury charge"); Schreyer v. State, No. 05-03-01127-CR, 2005 Tex. App. LEXIS 5921, at *10-17 (Tex. App.—Dallas Jul. 29, 2005, pet. ref'd) (op., not designated for publication) ("In the absence of evidence indicating the jury failed to follow the trial court's instruction to disregard, we presume they followed the instruction. Accordingly, the jury did not receive [an exhibit containing prejudicial information that was not admitted at trial], and any error associated with that exhibit was cured by the trial court's instruction.").
We overrule Richlen's sole issue on appeal.
CONCLUSION
We affirm the judgment of the district court.
/s/_________
Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Goodwin Affirmed Filed: April 27, 2018 Do Not Publish