Stringfellow v. State

Full title: PATRICK LAMONT STRINGFELLOW, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Jan 23, 2003

No. 05-02-00475-CR (Tex. App. Jan. 23, 2003)

Opinion

No. 05-02-00475-CR.

Opinion Issued January 23, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-27621-LQ. AFFIRMED.

Before Justices MORRIS, JAMES, and FITZGERALD.

OPINION

Opinion By TOM JAMES, Justice.

Patrick Lamont Stringfellow appeals his conviction for aggravated sexual assault. A jury found appellant guilty and assessed punishment at confinement for fifty-five years and a fine of $2,500.00. In two points of error, appellant contends the trial court erred by: (1) denying his motion for mistrial because a non-responsive answer of one of the State's witnesses introduced evidence of an extraneous offense and (2) denying his motion for mistrial after the prosecutor engaged in improper argument. We affirm the trial court's judgment.

Background

Some time after Jeanie Watson went to sleep on April 24, 2001, she awoke to the sound of her back door opening. She sat up and saw a man standing in the hallway; appellant had entered her house. Appellant ran towards her and shoved her down, placing his hand over her mouth. He pulled off her pajama bottoms and underwear, and touched her vagina. He then forced her into the kitchen, demanding money and threatening he would shoot her, and then forced her into the living room. He raped her repeatedly. In the course of this sexual assault, appellant ripped off Watson's top to her pajamas, stole her necklace, and hit her twice in the face. When appellant left, Watson ran to her neighbor's door. They called the police and Watson's son. An ambulance arrived and transported Watson to Parkland hospital. Dr. Carolyn Muller conducted the physical examination and collected evidence needed for a rape kit. Other than remembering her assailant was a light-skinned black male with a mole under his eye, Watson was unable to provide much of a physical description of her assailant. Two weeks later, Detective Clint McNear was questioning appellant in an unrelated case. While in custody, appellant mentioned he had stayed at a vacant house two weeks prior to his arrest, and appellant provided the address of that vacant house to McNear. McNear recognized the address as just a few doors from Watson's home. McNear notified Detective William Ellstrom, the lead detective working on the sexual assault and McNear confirmed appellant had a mole under his eye. With appellant's consent, Ellstrom collected an oral swab sample from appellant and sent the sample for DNA testing. Two forensic laboratories compared the DNA extracted from appellant's oral swab to that collected in the rape kit and the semen they had retrieved from Watson's pajamas. Both laboratories testified the DNA matched. One of the laboratories testified as to their conclusion appellant was the donor of the semen found inside Watson's vagina.

Extraneous Offense Evidence

In his first point of error, appellant argues evidence of an extraneous offense was allowed before the jury, and the court erred by denying his subsequent motion for mistrial. In a sub rosa hearing, Detective McNear testified he first began questioning appellant regarding burglary charges. Appellant objected to the admission of evidence of these burglaries, and the State agreed the information was not necessary for prosecution of their case. During trial, the following exchange occurred during appellant's re-cross examination of Detective McNear:

[DEFENSE COUNSEL]: He said a couple of weeks ago he was at — stayed at that vacant house; is that correct?

[OFFICER McNEAR]: Yes, sir.

[DEFENSE COUNSEL]: Was he cooperative in his discussions with you about that? He volunteered this information; is that correct?

[OFFICER McNEAR]: Yes, sir.

. . .

[DEFENSE COUNSEL]: He simply said, "By the way, I stayed one night in this vacant house a couple of weeks ago"; is that correct, something like that?

[OFFICER McNEAR]: Yes sir. When he stated two weeks, I went back two weeks and it put it right at that time.

[DEFENSE COUNSEL]: You're not sure if it was the 25th, 26th or the 23rd, 24th, you have no idea?

[OFFICER McNEAR]: No sir. I did it based on what he told me.

[DEFENSE COUNSEL]: Okay. How many other black men in this area did you interview?

[OFFICER McNEAR]: In relation to the burglaries, just one.

. . . (jury not present)

. . .

[DEFENSE COUNSEL]: Your Honor, we object as to the statement which was made regarding the burglaries in the area. He indicated that other people that he was interviewing the question — the line of questioning was about someone staying in the vacant house. The line of questioning was about placing someone in the vacant house and the question which I asked him was, "How many other people had you interviewed regarding that?"

[THE COURT]: That's not the question I heard you ask (The question was read back by the court reporter)

[PROSECUTOR]: Your Honor, the question asked and [appellant counsel] knew —

[DEFENSE COUNSEL]: The context —

[PROSECUTOR]: May I make an argument?

[THE COURT]: No, no. I don't need the question asked. The record speaks for itself. Make your objections.

[DEFENSE COUNSEL]: Your Honor, we would like to have on the record is what the —

[THE COURT]: It's on the record.

Appellant then objected to the response as an attempt to introduce an extraneous offense and requested a mistrial. The court sustained the objection, but overruled the request for mistrial. Appellant requested the jury be instructed to disregard McNear's last answers, and again requested a mistrial. The court again overruled appellant's request for mistrial. The jury returned and upon appellant's request, the court instructed the jury to disregard McNear's last answers. It is a well-settled and fundamental principle in our law that an accused person is entitled to be tried on the accusation made in the State's pleading and should not be tried for some collateral crime or for being a criminal generally. Soffar v. State, 742 S.W.2d 371, 377 (Tex.Crim.App. 1987). Thus, proof of prior specific acts of misconduct, similar happenings, or the commission of extraneous criminal wrongs unrelated to the offense for which the accused is on trial are generally not probative of the contested material issues in the case and are inadmissible. See Tex. R. Evid. 404(b); Soffar, 742 S.W.2d at 377. However, a plain reading of McNear's response does not accuse appellant of a crime, wrong, or act. See Tex. R. Evid. 404(b). McNear mentioned investigating other burglaries in the area, but he did not state appellant in any way had engaged in any misconduct, similar happening, or extraneous criminal wrong. See Soffar, 742 S.W.2d at 377. Therefore, we conclude the objected-to testimony does not fall under rule 404(b) and no error occurred. However, even if the testimony did somehow allege an extraneous offense, appellant was not harmed. Error involving erroneous admission of evidence is not constitutional; therefore, we disregard the error unless it affected appellant's substantial rights. See Tex. R. App. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh'g). If an error has a substantial and injurious effect on the jury's verdict, a substantial right is affected. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Furthermore, when evidence of an extraneous offense is introduced in error, a prompt instruction to disregard generally cures the improper reference. See Fuller v. State, 827 S.W.2d 919, 926 (Tex.Crim. App. 1992); Barney v. State, 698 S.W.2d 114, 125 (Tex.Crim. App. 1985) ("Except in extreme cases, if a timely objection to the remark is sustained, and the trial court instructs the jury to disregard, the error is cured."). Watson testified appellant demanded she show him where she kept her money. He also stole her necklace. With testimony already admitted indicating appellant committed robbery by stealing Watson's necklace, we cannot find harm in a reference to appellant's being under investigation for burglary. Furthermore, Watson identified appellant as her assailant in open court. The State introduced evidence from two different laboratories confirming appellant's DNA was present on Watson's pajamas and on the evidence collected at Parkland Hospital for the rape kit. Although appellant argues the error had a substantial and injurious effect or influence on the jury's verdict, he does not present any argument to explain why the error in introducing this evidence could not have been cured by an instruction to disregard. We find nothing in the record leading us to conclude the court's instruction to disregard could not have cured any error. Even assuming McNear's testimony was inadmissible, we conclude the court's instruction to disregard cured any harm. See Fuller, 827 S.W.2d at 926. Accordingly, we overrule appellant's first point of error.

Jury Argument

In his second point of error, appellant argues the court erred by denying his motion for mistrial after the prosecutor referred to him as an animal during argument. During closing arguments, the prosecutor asked, "Was it him? Is that the animal that raped Jeanie?" Appellant objected to the reference of appellant being an animal, the court sustained the objection, and upon appellant's request, the court instructed the jury to disregard. The court then overruled appellant's motion for mistrial. Any reference to appellant as an animal was a reasonable deduction from the evidence, and even if the reference to appellant as an animal were error, we find no harm. Improper jury arguments are considered non-constitutional error, disregarded unless a substantial right is affected. See Tex. R. App. P. 44.2(b); Mosley, 983 S.W.2d at 259. We review non-constitutional error under rule 44.2(b), considering (1) the severity of any prejudicial effect, (2) the court's curative measures, and (3) certainty of conviction based on the strength of the evidence. See Tex. R. App. P. 44.2(b); Mosley, 983 S.W.2d at 259. In conducting this review, we must examine the argument in light of the entire record, and to reverse, the objected-to argument "must be extreme or manifestly improper, violative of a mandatory statute, or inject new facts into the case that are harmful to the defendant." Tompkins v. State, 774 S.W.2d 195, 218 (Tex.Crim.App. 1987). Generally, the court's instruction to the jury to disregard the argument will suffice to cure any error. Id. Particularly brutal facts of a case may lead to a reasonable deduction to justify a prosecutor's reference to a defendant as an animal. See Belton v. State, 900 S.W.2d 886, 898 (Tex.App.-El Paso 1995, pet. ref'd); Garza v. State, 783 S.W.2d 796, 800 (Tex.App.-San Antonio 1990, no pet.); Branch v. State, 774 S.W.2d 781, 786 (Tex.App.-El Paso 1989, pet. ref'd). Appellant brutally attacked Jeanie Watson. During the course of his extended assault, appellant hit her, shoved her, ripped her clothes, forced her to perform oral sex, threatened her, repeatedly raped her, and robbed her. Under the circumstances of the case, we conclude the prosecutor's reference to appellant as an animal was a reasonable deduction from the evidence. See Belton, 900 S.W.2d at 898. However, we do recognize the court of criminal appeals did not approve of the reference to the defendant in Tompkins as an animal. See Tompkins, 774 S.W.2d at 218. In Tompkins, because the court gave a prompt instruction to the jury to disregard, the court of criminal appeals did not find the statement so "illogical, fanciful, or extravagant" as to necessitate a conclusion the statement influenced the jury's verdict. Id. (citing Brown v. State, 171 Tex.Crim. 692, 353 S.W.2d 425, 430 (1962). We likewise conclude the instruction to disregard in the present case cured any error. All three factors from Mosely are in the State's favor. Any prejudicial effects were minimal to appellant's case. The jury heard testimony of the forty-five minute ordeal Watson suffered: appellant attacked her with physical force, forced her to perform oral sex, raped her repeatedly, threatened her, and robbed her. We do not find a severe magnitude of prejudice in referring to the perpetrator of those acts as an animal. Second, the court promptly instructed the jury to disregard the statement. Finally, the strong DNA evidence enforced the certainty of conviction even without the prosecutor's reference. The jury heard testimony from two different laboratories confirming appellant's DNA was present on Watson's pajamas and on the evidence collected at Parkland Hospital for the rape kit. Additionally, we find no reason to believe the court's instruction to disregard did not cure any error. Viewing the reference to the assailant as an animal in light of the entire record, we do not find the reference to be "extreme or manifestly improper, violative of a mandatory statute, or inject[ing] new facts into the case that are harmful to the defendant." See Tompkins, 774 S.W.2d at 218. Given the brutal facts of the case, the court's prompt instruction to disregard, and the strong DNA evidence, we are unable to say the prosecutorial reference might have had any effect at all on the jury's verdict. See Mosely, 983 S.W.2d at 259. Accordingly, we overrule appellant's second point of error. We affirm the trial court's judgment.