Opinion
No. 05-16-00297-CR
04-06-2017
MICHAEL DEWAYNE TUCKER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1555691-U
MEMORANDUM OPINION
Before Justices Evans, Stoddart, and Boatright
Opinion by Justice Stoddart
A jury convicted Michael Dewayne Tucker of aggravated assault with a deadly weapon and sentenced him to thirty-five years' incarceration. In three issues, appellant argues the trial court erred by refusing to grant a mistrial, violating his right to a fair trial, and violating his right to have his competency determined. We affirm the trial court's judgment.
FACTUAL BACKGROUND
Appellant was in a relationship and lived with Rebecca Flores. On the night of the assault, they began fighting because he wanted to have sex and she did not. With his left hand, appellant grabbed Flores's hair while he punched her "all over [her] face" and head with his right hand. He tore off her clothes. He began hitting her while they were in their bedroom and dragged her by her hair into the bathroom.
The manager of the apartment complex where they lived was walking on the property that night. He heard a woman inside an apartment yelling for help and, looking into a window, saw a man hitting her. The manager knocked on the front door to create a distraction so the man would come outside. The manager also called police. The man, who the manager identified as appellant at trial, came outside, but then went back inside and shoved Flores out of the front door. She appeared to be badly beaten. Flores was not wearing any clothing and a neighbor gave a blanket to her.
Officers William Parker and Anthony Heims responded to the call. As the officers removed appellant from the apartment complex, people who lived in other units yelled at appellant. Appellant yelled back: "I gave the bitch what she wanted and I will give [it] to you too when I get done."
Parker described Flores's face as "destroyed . . . she didn't look human." Heims testified that Flores's face, chest, and neck were covered in blood. Heims did not see any injuries to appellant except his hands were swollen. Police took Flores to the hospital where she spent four days in the intensive care unit. She had a broken nose, fractured jaw, and bleeding on her brain. She lost at least one tooth as a result of the assault. Pictures of Flores that were taken at the hospital were admitted into evidence, including a picture of Flores in the intensive care unit. The jury also saw pictures of Flores's blood on the apartment's walls, floors, bathtub, and front door.
LAW & ANALYSIS
In his first issue, appellant asserts the trial court erred by refusing to grant a mistrial after the State argued to the jury that the defense strategy was to blame the victim. The relevant exchange occurred at the beginning of the State's closing statement:
Prosecutor: It's always funny because, you know, there's a pretty common defense tactic.
Defense Counsel: Your Honor, I'm going to object to that as a tactic, as striking over the shoulder of counsel.
Court: Sustained.Defense counsel moved for mistrial and the motion was denied.
Defense Counsel: Ask the jury to be instructed to disregard it.
Court: You are instructed to disregard the last statement of counsel. You may proceed when you're ready, [Prosecutor].
Prosecutor: Generally, whenever they don't want any focus on the defendant itself, what you do is you attack something else. You attack the complainant in this case, Rebecca Flores. You attack the State of Texas. So beyond a reasonable - -
Defense Counsel: Your Honor, I still think that's an improper argument.
Prosecutor: Judge, it's argument and responding to things and allegations she made during her closing argument.
Court: The jury is instructed to disregard the last statement of counsel.
Because the trial court sustained appellant's objections and instructed the jury to disregard the complained-of statements, the only adverse ruling was the trial court's denial of the motion for mistrial. 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). A trial court abuses its discretion if its decision is outside the zone of reasonable disagreement. Id. "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Id.; Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) ("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 trial court properly declares a mistrial when, due to the error, an impartial verdict cannot be reached. Wood, 18 S.W.3d at 648.
"[W]hether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis." Archie, 221 S.W.3d at 700. These factors include: (1) the severity of the misconduct, i.e., the magnitude of the prejudicial effect of the prosecutor's remarks; (2) the measures adopted to cure the misconduct, i.e., the efficacy of any cautionary instruction by the judge; and (3) the certainty of conviction absent the misconduct, i.e., the strength of the evidence supporting the conviction. Id.
Having reviewed the record, we conclude the trial court did not abuse its discretion by overruling the motion for mistrial. The complained-of statements were not serious misconduct by the State and, when considering the entire record, were not prejudicial. As the State argued at trial and on appeal, appellant's trial strategy appeared to be, in part, to blame Flores for the assault, and the complained-of statements were intended to answer opposing counsel's argument. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (listing four areas of proper jury argument including answer to opposing counsel's argument). Additionally, the trial court took curative measures by sustaining defense counsel's objections and promptly instructing the jury to disregard the statements. Id. ("In most instances, an instruction to disregard the remarks will cure the error."). The jury charge also instructed the jury not to consider matters not in evidence. There is no indication in the record that the jury disregarded the trial court's instructions and the prosecutor's statements were not so outrageous that the jury would ignore the instructions to disregard. See id. ("Only offensive or flagrant error warrants reversal when there has been an instruction to disregard, . . . this comment was not so flagrant that the instruction to disregard was ineffective.").
Finally, we do not doubt the certainty of the conviction absent the alleged misconduct. Flores testified about the assault and her resulting injuries and two police officers corroborated the extent of her injuries. Flores and the apartment manager identified appellant in court as the man who assaulted Flores and the officers identified appellant as the man in the apartment when they arrived. One officer noted appellant's swollen hands. The jury saw photographic evidence showing the extent of Flores's injuries and the blood throughout the apartment.
Under the facts of this case, the alleged misconduct was not prejudicial and a mistrial was not required. We conclude the trial court did not abuse its discretion by denying appellant's motion for mistrial. We overrule appellant's first issue.
In his second issue, appellant argues the trial court violated his right to a fair trial by instructing him to "act like you got some sense" while admonishing him for an outburst in the presence of potential jurors. During voir dire, appellant interrupted the proceedings and the following exchange occurred:
Appellant: Listen, man, you already done told me you're going to send me to the penitentiary - -Appellant concedes his counsel did not object, request an instruction, or move for mistrial.
Court: Hold on.
Appellant: I don't - -
Court: Hold on. Mr. Tucker.
Appellant: What?
Court: Mr. Tucker. No. We're not going to do that here. You're going to remain quiet and act like you got some sense in this courtroom. Do I make myself clear? You can proceed when you're ready, [prosecutor].
Prosecutor: Thank you, Judge. . . .
Appellant: I already told you, ma'am, quit talking to me. You told me you're going to send me to prison. Quit talking to me.
Court : Keep your voice down, Mr. Tucker.
Most appellate complaints must be preserved by a timely request for relief at the trial court level. See TEX. R. APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013). This general rule applies to complaints regarding improper judicial comments, except when the judicial comments rise to the level of fundamental error. See Unkart, 400 S.W.3d at 99; Jasper v. State, 61 S.W.3d 413, 420-21 (Tex. Crim. App. 2001) (concluding several types of comments—such as interjections by judge to correct misstatement or misrepresentation of previously admitted testimony, comments showing judge's irritation at defense counsel, comments related to maintaining control and expediting trial, and comments aimed at clearing up points of confusion—do not rise to level of fundamental error and an objection is required to preserve error).
Relying on Blue v. State, 41 S.W.3d 129 (Tex. Crim. App.) (plurality op.), appellant argues we may review an improper judicial comment even though no objection was lodged at trial. In Blue, the trial judge apologized to jurors about delaying the case, telling them the defendant was deciding whether to accept the State's offer and he would "prefer the defendant to plead" because it would give him "more time to get things done." Id. at 130. A plurality of the Court decided the judge's remarks vitiated the defendant's presumption of innocence and were fundamental error of constitutional dimension that required no objection. Id. at 131-32. Since Blue, the Court has explained it is without "precedential value" as a plurality opinion. See Unkart, 400 S.W.3d at 101.
Here, the trial judge's instruction to appellant to "remain quiet and act like you got some sense in this courtroom," does not implicate appellant's presumption of innocence as did the comments in Blue. While the judge's comment could have shown he was frustrated with appellant, it may also show the judge exercised her broad discretion to maintain control over the trial. See Jasper, 61 S.W.3d at 421 (judge has discretion to maintain control and expedite trial). The judge's comment did not bear on appellant's presumption of innocence or vitiate the jury's impartiality, and it is not fundamental error. Because the record does not demonstrate unique circumstances allowing us to review the issue without an objection, we conclude appellant failed to preserve his complaint for our review. We overrule appellant's second issue.
In his third issue, appellant asserts the trial court violated his right to have his competency determined after he interrupted voir dire, as discussed above. Appellant argues the trial court should have presumed he was delusional and sua sponte ordered competency proceedings. We disagree.
The prosecution and conviction of a defendant while he is legally incompetent violates due process. Morris v. State, 301 S.W.3d 281, 299 (Tex. Crim. App. 2009). Although a defendant is presumed to be competent to stand trial, see TEX. CODE CRIM. PROC. ANN. art. 46B.004(a), upon suggestion that the defendant may be incompetent to stand trial, the trial court shall make an informal inquiry whether there is some evidence from any source that would support a finding the defendant is incompetent. Id. art. 46B.004(c). Evidence suggesting the need for an informal inquiry may be based on observations made in relation to one or more of the factors described by article 46B.024 or on any other indication that the defendant is incompetent. Id. The 46B.024 factors are whether the defendant can (a) rationally understand the charges against him and the potential consequences of the pending criminal proceedings; (b) disclose to counsel pertinent facts, events, and state of mind; (c) engage in a reasoned choice of legal strategies and options; (d) understand the adversarial nature of criminal proceedings; (e) exhibit appropriate courtroom behavior; and (f) testify. Id. art. 46B.024(1)(A-F). The trial court may raise the competency issue on its own motion. See id. art. 46B.004(a).
We review a trial court's decision not to conduct an informal competency inquiry for an abuse of discretion and we will not disturb the ruling absent a showing that the decision was arbitrary and unreasonable. See Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute, TEX. CODE CRIM. PROC. ANN. art. 46B.004, on other grounds as recognized in Turner v. State, 422 S.W.3d 676, 692 (Tex. Crim. App. 2013); Clemens v. State, No. 05-15-00025-CR, 2016 WL 347149, at *3 (Tex. App.—Dallas Jan. 28, 2016, no pet.) (mem. op., not designated for publication) (considering whether trial court abused its discretion by failing to conduct informal competency inquiry); Azizi v. State, No. 05-13-01266-CR, 2015 WL 1811895, at *2 (Tex. App.—Dallas Apr. 20, 2015, no pet.) (mem. op., not designated for publication) (same).
There is no evidence of any of the 46B.024 factors or any other indication that appellant was incompetent. It is unclear from the record to whom appellant was speaking. If we assume his comments were made to his lawyer, we could speculate his comments show frustration. However, they do not reflect an inability to communicate with his lawyer due to deficiencies in his mental abilities. Considering the record, no evidence suggests appellant lacked competence and we therefore presume appellant was competent. We conclude the trial court did not abuse its discretion by failing to sua sponte conduct an informal inquiry into appellant's competency to stand trial. We overrule appellant's third issue.
CONCLUSION
We affirm the trial court's judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
160297F.U05
JUDGMENT
On Appeal from the 291st Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1555691-U.
Opinion delivered by Justice Stoddart. Justices Evans and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered April 6, 2017.