Opinion
No. 05-14-01064-CR
01-27-2016
LARRY LYNN ROBINSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7 Dallas County, Texas
Trial Court Cause No. F-1451103-Y
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Lang and Brown
Opinion by Justice Brown
Larry Lynn Robinson appeals his conviction for theft. A jury found appellant guilty, and the trial court assessed his punishment at three years' confinement. In four issues, appellant contends the trial court abused its discretion in denying his motion for mistrial following the prosecutor's improper jury argument and contends we should modify the judgment to correct three inaccuracies. For the following reasons, we modify the judgment and affirm as modified.
BACKGROUND
In January 2014, appellant was indicted for the theft of assorted tool and hardware items valued at less than $1500 from a Home Depot store. The indictment contained two enhancement paragraphs alleging that appellant had prior theft convictions on November 6 and 20, 2013. Appellant pleaded not guilty and elected a jury trial.
Michael Vassel, a loss prevention officer for Home Depot, testified at trial. On January 5, 2014, Vassel was working with two other loss prevention officers, Anthony Pargas and Angel Sifuentes. Vassel testified that he and Pargas observed appellant enter the Home Depot wearing a large jacket. Appellant first looked at the Dewalt batteries, an item often stolen from the store. He then walked to the Paslode batteries, rechargeable batteries for nailers, and selected one. He held it in his hand and looked around to see who was near him. Appellant also selected another nearby item, a fuel pack or fuel cell for nail guns. Appellant walked down the aisle as if he was going to go out the other end, but turned around, as if to see if someone was watching him, and went back up the aisle to the Dewalt batteries. Vassel saw appellant pick up a Dewalt battery and proceed to the cabinet aisle, a secluded aisle in the rear of the store. Appellant set the items on a shelf and looked to see if anyone was watching. He then began to use a razor blade to open the packages, stopping to see if anyone was watching him. Appellant put the items inside his jacket and rear pants pockets and headed for the front of the store. Vassel called Sifuentes and had him wait outside the store. Vassel and Pargas followed appellant as he exited the store without paying for the concealed merchandise. Vassel, Pargas, and Sifuentes approached appellant, identified themselves, and told him he needed to come back inside because of the unpaid merchandise. Appellant went back in the store with the employees, and they took him to the loss prevention office. Vassel testified they had to handcuff appellant when he began to reach into his pockets. They retrieved the merchandise from appellant and then called the police. The total value of the items taken was $179.
Pargas also testified for the State. He stated that his attention was drawn to appellant that day in part because appellant kept looking around and because he was wearing a huge jacket. Pargas observed appellant select a fuel battery, a Paslode battery, and a Dewalt battery. Appellant then went to the back of the store where he ripped the packages open with a razor blade box cutter and concealed the merchandise in his jacket and pants. Pargas was able to view appellant the entire time. After appellant exited the store, Pargas, Vassel, and Sifuentes apprehended him for theft. Once back in the office, Vassel retrieved the merchandise from appellant. They asked appellant why he shoplifted, and appellant replied that he needed food.
A video from surveillance cameras at the Home Depot was admitted into evidence. The video showed appellant entering the store, selecting the fuel cells, exiting the store, and re-entering the store after he was apprehended. There was no video of appellant opening the packaging or concealing merchandise on his body. Vassel testified there was not a camera pointed toward the section where the Dewalt batteries were nor was there any video on the cabinet aisle. Photographs of the merchandise in question and of the opened packaging were also admitted into evidence.
After the State rested its case, appellant's attorneys wished to put something on the record outside the presence of the jury. One attorney told the court appellant had requested that Angel Sifuentes, who was at the courthouse, be called as a defense witness. Counsel had admonished appellant that she did not anticipate Sifuentes's testimony to be beneficial to appellant's case. Appellant's other attorney wanted the record to reflect that the defense did not plan on calling Sifuentes as a witness as a matter of trial tactic.
Appellant was the sole defense witness. He testified that he went to the Home Depot with the intent "to do something illegal" because he was homeless and didn't have a place to go and it was cold. Appellant testified that he picked up assorted items, but after he saw that he was being watched, he threw the merchandise down and walked out of the store. According to appellant, the loss prevention officers did not find any stolen goods on him when they searched him. Appellant denied taking the items out of their packages. He stated he tried to open the biggest package and could not tear it open. Appellant also indicated one of his attorneys had shown him a video from the Home Depot that was not the one played in court. Appellant admitted that he had committed the two prior thefts alleged in the indictment. He testified he pleaded guilty in those cases, and that, had he been guilty in this case, he would have pleaded guilty as well.
DENIAL OF MOTION FOR MISTRIAL
In his first issue, appellant contends the trial court abused its discretion when it denied his motion for mistrial after the prosecutor's improper jury argument. Defense counsel objected to the following closing argument:
And you didn't hear from Angel Sifuentes but he was here, and don't you know, if he was going to say anything different, if he was going to say that those items weren't found on the defendant, don't you know they would have called him.Counsel objected on grounds the prosecutor was arguing outside the record. The trial court sustained the objection and sua sponte instructed the jury to "disregard that." Appellant's counsel moved for a mistrial, and the trial court denied the request.
Appellant contends the State's argument asked the jury to believe that Sifuentes would have testified that appellant exercised control over the property. Appellant maintains that due to the severity of the comment, the instruction to disregard was ineffective and a mistrial should have been granted. The State responds that the trial court's instruction to disregard cured any error.
A prosecutor may not use closing arguments to present evidence that is outside the record. Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011). Improper references to facts that are neither in evidence nor inferable from the evidence are inappropriate. Id. An instruction to disregard, however, will generally cure error if a prosecutor mentions facts outside the record. Id. at 727-28; see Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004).
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, 135 S.W.3d at 77. In other words, mistrial is the appropriate remedy when the objectionable events are so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant. Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011). Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required. Hawkins, 135 S.W.3d at 77.
We review a trial court's ruling on a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). This Court must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Archie, 221 S.W.3d at 699. To evaluate whether the trial court abused its discretion in denying a mistrial after an improper jury argument, we balance: 1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); 2) the 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). Archie, 340 S.W.3d at 739.
We have considered these factors and conclude the trial court did not abuse its discretion in denying appellant's request for a mistrial. The prosecutor's statement about Sifuentes was isolated and a small portion of the State's closing argument. The trial court immediately took curative action with a sua sponte instruction to disregard. And the evidence supporting appellant's conviction was strong. Two Home Depot loss prevention officers gave similar testimony about witnessing appellant take merchandise off the shelves, go to a secluded part of the store to take the items out of the packaging and conceal them in his clothes, and leave the store with them. Video and photographic evidence supported their version of the events. The circumstances of this case are not so egregious as to make it fall outside the general rule that an instruction to disregard will cure error resulting from an argument that is outside the record. We overrule appellant's first issue.
ERRORS IN THE JUDGMENT
In his second, third, and fourth issues, appellant contends the judgment should be modified to correct certain errors. The State agrees we should modify the judgment as requested. In issues two and three, appellant contends we should modify the judgment to accurately reflect his plea to allegations he had prior felony convictions for possession of a controlled substance and burglary, which were used to enhance his punishment. The judgment recites that appellant pleaded true to two enhancement paragraphs. The record, however, does not contain any indication that appellant entered a plea to the enhancement allegations. See Reed v. State, 500 S.W.2d 497, 499-500 (Tex. Crim. App. 1973) (when court assesses punishment, it is not mandatory that court receive defendant's plea). And the State called a witness to provide documentary proof of those convictions. In his fourth issue, appellant contends the judgment should be modified to reflect that the trial court, not the jury, assessed punishment in this case. We have a duty to correct the record to make it speak the truth when we have the necessary information to do so. See Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref'd). Accordingly, we modify the judgment to reflect that appellant's plea to the first and second enhancement paragraphs was "not true." We also modify the judgment to reflect that punishment was assessed by the court. We sustain appellant's second, third, and fourth issues.
As modified, we affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2 141064F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 7, Dallas County, Texas
Trial Court Cause No. F-1451103-Y.
Opinion delivered by Justice Brown, Chief Justice Wright and Justice Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect that Larry Lynn Robinson's pleas to the 1st enhancement paragraph and 2nd enhancement paragraph were "NOT TRUE." The trial court's judgment is further MODIFIED to reflect that punishment was assessed by the court.
As modified, the judgment is AFFIRMED. Judgment entered this 27th day of January, 2016.