No. 13-05-719-CR
Opinion delivered and filed August 23, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 180th District Court of Harris County, Texas.
Before Justices RODRIGUEZ, GARZA, and BENAVIDES.
NELDA V. RODRIGUEZ, Justice.
Appellant, Michael Lee Wilson a/k/a Michael Lee Lewis, was charged by indictment with the felony offense of murder. The indictment alleged that a deadly weapon, namely, a firearm, was used in the commission of the offense. Appellant entered a plea of not guilty. A jury found appellant guilty of murder and assessed punishment at 45 years' confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant was sentenced in accordance with the jury's verdict. By six points of error, appellant contends the trial court erred in overruling his objections to the State's final argument, improperly allowing the State to collaterally impeach him, overruling his motion for mistrial, and overruling his objection to testimony being read to the jury during deliberations at the punishment phase. We affirm.
I. Challenges to the State's Jury Argument
By his first and fourth points of error, appellant complains that the trial court erred in overruling his objections to portions of the State's jury argument at the guilt-innocence stage of the trial. A. Appellant's Drug Use
In his fourth point of error, appellant claims that the trial court erred in overruling his objections to the State's jury argument making reference to appellant's drug usage. 1. Applicable Law and Standard of Review
Permissible areas of jury argument include the following: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000); see Washington v. State, 668 S.W.2d 715, 718 (Tex.App.-Houston [14th Dist.] 1983, pet. ref'd) (providing that areas are applicable to both the guilt-innocence and punishment phases of a criminal trial). Counsel is generally afforded wide latitude in drawing inferences from the record, as long as the inferences are reasonable and offered in good faith. Coble v. State, 871 S.W.2d 192, 205 (Tex.Crim.App. 1993) (en banc). A prosecutor, however, cannot use closing argument to place matters before the jury that are outside the record and prejudicial to the accused. Everett v. State, 707 S.W.2d 638, 641 (Tex.Crim.App. 1986). References to facts that are neither in evidence, nor inferable from the evidence, are improper. Borjan v. State, 787 S.W.2d 53, 57 (Tex.Crim.App. 1990). When reviewing alleged error in a jury argument, it is important to keep in mind that every alleged error must be viewed in the context of the entire argument, and that isolated sentences taken out of context may take on a meaning different from that understood by the jury. Drew v. State, 743 S.W.2d 207, 220 (Tex.Crim.App. 1987) (en banc). Even when an argument is improper, reversible error does not occur unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000); Todd v. State, 598 S.W.2d 286, 296-97 (Tex.Crim.App. [Panel Op.] 1980). To warrant reversal, the remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App. 1996). A trial court's denial of an objection to argument outside the record is non-constitutional error and is analyzed under Texas Rule of Appellate Procedure 44.2(b). Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000); see Tex. R. App. P. 44.2(b). A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance the error did not influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). The following factors are used to analyze the harm associated with improper jury argument: (1) the severity of the misconduct, (2) curative measure, and (3) the certainty of the punishment assessed absent the misconduct — likelihood of the same punishment being assessed. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998); Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 1997). 2. Analysis
During the State's final argument at the guilt-innocence stage of the trial, the following argument and objection occurred: Prosecutor: [The victim] didn't rob the defendant. He didn't shoot the defendant. The defendant was just too high on drugs to realize that. Defense Counsel: Excuse me, Your Honor. There is no evidence that he was high on drugs at all. The Court: Lawyer's arguments are not evidence, ladies and gentlemen. Defense Counsel: I object to the argument. There is no evidence in this case — record of any intoxication on the night of January 12th. There is none. Zero. The Court: Your objection is overruled. Later, appellant made the following objections to the State's jury argument: Prosecutor: So, you heard from Martin, Oran and Vakesia and they said, [w]e picked him up and he was terrified and, oh, we had the scene acted out and it was beautiful and he was jerking around. He was so afraid that they were afraid. And we asked each one of them, Did you ask him what was wrong? And what did they tell you? No. Oh, please. Your good buddy, your best friend, the person you come here to testify for and you never ask him, Man, what is wrong with you? Why are you acting this way? They didn't have to. They knew why he was acting this way. They are his friends. They know that that is what he does when he is high on drugs. And how do they know that? Defense Counsel: Your Honor, there's no evidence of that. The Court: Lawyer's arguments are not evidence. Your objection is overruled. Prosecutor: How do we know that? Because the State's witness, Calvin Anderson, the drug dealer, he testified, I deal drugs. I am around drugs. I've seen people high on drugs. And that's how he acts. I saw him the night he said that he was so afraid of Larry. He was high. Now, did he also say, I've never seen him use drugs? He sure did. Would it have helped my case if he would have gotten up there and said, Oh, I've seen him use drugs all the time? Sure, it would have helped. Unfortunately, he hadn't seen him use them. But he knows what a user looks like and so does Vakesia and Martin and Oran. Defense Counsel: There is no evidence of that, whatsoever. The Court: Lawyer's arguments are not evidence. Your objection is overruled. Appellant argues that the statements about him being high on drugs were outside the record, not a reasonable deduction from the evidence, and injected new facts into the trial that were harmful to him. However, there was evidence introduced during the course of the trial that appellant was high on drugs the night of the shooting. Appellant's witnesses described appellant as acting "paranoid" and "spooked" the night before the murder. Another witness testified that while he did not see appellant ingest drugs, he had seen appellant high on drugs in the past, and he believed appellant was high the night of the shooting. We conclude the argument made by the prosecutor was both a summation of the evidence and a reasonable deduction from the evidence — two of the proper categories for jury argument. See Wesbrook, 29 S.W.3d at 115. Thus, the trial court did not err by overruling appellant's objections. Moreover, even if we were to conclude the State's argument was improper, the trial court's error in overruling appellant's objections was harmless. See Tex. R. App. P. 44.2(b); Martinez, 17 S.W.3d at 692-93. Considering the first factor — the severity of the misconduct — the argument was brief in the context of the entire argument, and, as determined above, did not set out new facts that unfairly tipped the scales in the State's favor as urged by appellant. Rather, the State argued inferences from facts in evidence. We cannot conclude that the State intentionally attempted to taint the trial process with improper argument. Hawkins, 135 S.W.3d at 77. Because we conclude that the inferences are reasonable and offered in good faith, we will afford wide latitude in drawing inferences from the record. See Coble, 871 S.W.2d at 205. In regard to the second measure — steps taken to cure the error — after each objection, the trial court informed the jury that lawyer's arguments are not evidence. See id. Finally, in considering the third factor — the certainty of the punishment assessed absent the misconduct — in light of punishment being assessed at 45 years, which is in the middle of the range of punishment, it could be concluded that the complained-of statements had little effect on the jury. See id. Viewed in the context of the entire argument, because the record provides fair assurance that the argument about which appellant complains did not influence the jury or had but a slight effect on it, appellant's criminal conviction should not be overturned for non-constitutional error, if any. See Johnson, 967 S.W.2d at 417; King, 953 S.W.2d at 271; Drew, 743 S.W.2d at 220. We overrule appellant's fourth point of error. B. Burden of Proof for Self-Defense Theory
In point of error one, appellant contends that the trial court erred in overruling his objection that the State misrepresented the law when it stated its burden of proof regarding appellant's self-defense theory. 1. Applicable Law and Standard of Review
It is error for the State to present a statement of the law that is contrary to that presented in the charge to the jury. Whiting v. State, 797 S.W.2d 45, 48 (Tex.Crim.App. 1990) (en banc). Where the misstatement of law directly impacts the jury's perception of the burden to which the State is to be held before a verdict of guilt can be returned, it is reversible error, subject only to a harmful error test. Id. 2. Analysis
During the State's final argument at the guilt-innocence stage of the trial, appellant made the following objections: Prosecutor: Remember, for defensive issues like this, the State has the burden of persuasion. We don't have to ultimately refute the defensive position. Defense Counsel: Your Honor, I object. The State has the burden of disproving self-defense beyond a reasonable doubt. That's within the charge. The Court: State bears the burden of persuasion. Your instructions are in your charge, ladies and gentlemen, my written instructions. Prosecutor: You will actually find that in the charge. We have the burden of persuasion. This is very different from beyond a reasonable doubt. Defense Counsel: No, Your honor. That's a misstatement of the law. Defense Counsel: Misstatement of the law. The Court: Excuse me. To the extent that conflicts with my instructions, your objection is sustained. Defense Counsel: Ask the Court to instruct the jury to disregard the Prosecutor's last remark. The Court: Disregard. Defense Counsel: Ask for a mistrial. The Court: It is denied. Later, during the State's closing final jury argument, appellant made the following objection: Prosecutor: The State has to prove that this man is a murderer and you heard evidence that is exactly what he is. However, because he brought up self-defense, we now have the burden of persuasion. The burden of persuasion. That means we don't have to bring you evidence that he didn't — that he didn't have self-defense. We have to persuade you — Defense Counsel: Your Honor, again, the burden of proof, that is not self-defense. The Court: Take your instructions from the Court, ladies and gentlemen, written instructions. Prosecutor: Please read those instructions. It says: Burden of persuasion. We have to persuade you that his argument is bogus, that he doesn't have the right to self-defense. And you heard not just from the State's witnesses but from his own witnesses. He doesn't have that. He doesn't have self-defense. Specifically, appellant claims that the prosecutors misstated the law. However, the State is not required to rebut a theory of self-defense with evidence beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991) (en banc) (rejecting the argument that the State had to disprove a self-defense theory with evidence beyond a reasonable doubt); Williams v. State, 911 S.W.2d 191, 194 (Tex.App.-Houston [1st dist.] 1995, pet. ref'd) (same). Instead, the State has the burden of persuasion in disproving evidence of self-defense. Saxton, 804 S.W.2d at 913; Juarez v. State, 961 S.W.2d 378, 385 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). In this case, neither statement about which appellant complains is a misstatement of the burden of proof. It is not error for the State to quote or paraphrase the jury charge. Whiting, 797 S.W.2d at 48. Each side is permitted to discuss the facts admitted into evidence "and to give a reasonable explanation of the law applicable to that case." Provost v. State, 631 S.W.2d 173, 176 (Tex.App.-Houston [1st Dist.] 1981, pet. ref'd). Legal concepts may be explained as long as such examples do not constitute statements of law contrary to that contained in the charge. Id. Because the State's argument was not a misstatement of the law or contrary to the charge, the trial court did not err in overruling appellant's objections to these portions of the State's closing argument. Accordingly, appellant's first point of error is overruled. II. Collateral Impeachment
Appellant contends by his second point of error that the trial court erred in improperly allowing the State to collaterally impeach him. However, appellant provides no argument, other than referring to "collateral impeachment," and does not cite to specific authority to support his assertion. In accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Because this issue is inadequately briefed, we overrule appellant's second issue. III. Refusal to Grant Mistrial After Questions Regarding Drug Dealing
By his third point of error, appellant contends that his substantial right to a fair trial was abrogated by the trial court's refusal to grant his request for mistrial after the State's attempts to inject evidence that appellant was either a drug user or that a drug deal had occurred at his barbershop. In support of this contention, appellant argues that rule 403 prohibits the introduction of the proffered testimony because it was no more than an impermissible inference of character conformity and its admission is therefore barred by rule 404(b). See Tex. R. Evid. 403, 404(b). Appellant complains about the following exchanges that took place during trial: Prosecutor: You know it was a robbery? Are you sure it wasn't a drug deal? Defendant: We was [sic] gambling. No, ma'am. Prosecutor: Couldn't be a drug deal? Defendant: No, ma'am. Prosecutor: Now, some of those guys in that room, are you aware of whether or not they deal in drugs? Defendant: No ma'am. We was [sic] gambling. Prosecutor: Okay. No, you are not aware, or, no, they don't deal in drugs? Defendant: Excuse me? Defense Counsel: Your Honor, could we approach the bench? The Court: Come on up. (At the Bench, on the record.) Defense Counsel: Impeaching him with whether or not people inside the shop possible [sic] had — were dealing drugs is improper cross-examination. It is collateral impeachment. He's denied that they were dealing drugs that night. The fact that some of those people may have drug convictions is irrelevant. The Court: I don't think she's asking that. She can't ask if those people inside had drug convictions. I don't think that's really relevant, but she can ask what was going on in there, what he saw. Defense Counsel: But anything else is not relevant. Prosecutor: All I am trying to get in, there is [sic] all the different theories on the robbery version. The Court: You are not going to say people there with drug convictions, Counsel. Prosecutor: I am just asking that he is aware that they deal in drugs. Defense Counsel: She already asked that. The Court: Okay. Your objection is overruled. * * * * *
Prosecutor: You been [sic] around drugs, haven't you, sir? Defendant: Yes. Defense Counsel: Your Honor, speculation. The Court: It is overruled. * * * * *
Prosecutor: In your personal knowledge, are there drugs that have been sold in front of that barber shop before? Defendant: No, I don't know. Prosecutor: You don't know? Have you ever sold drugs at the barber shop? Defendant: I haven't. The following exchange took place when the State called Officer Lloyd Hicks as a rebuttal witness: Prosecutor: And what was the purpose of picking [Patrick Davis] up? Hicks: He was going to take me to purchase some crack cocaine. Prosecutor: And, so after you picked him up, what did you do? Hicks: We went and purchased some crack cocaine. Defense Counsel: Your Honor, may we approach the bench? The Court: No. * * * * *
Hicks: We went to purchase some crack cocaine, but the person that lived at the home was not home. Defense Counsel: Your, [sic] Honor, I don't see the relevancy. The Court: Sustained. Prosecutor: And, so, then what happened? Defense Counsel: Object to the whole line of questioning. The Court: What's the relevance? Prosecutor: Your Honor, the gentleman, Patrick Davis, went to the defendant's barber shop and got crack cocaine and brought it to this officer. The Court: And that is relevant because? Prosecutor: That is [sic] alternative theory to his robbery defense, Your Honor. The Court. [Defense Counsel], your objection is sustained. Defense Counsel: Ask the Court instruct the jury to disregard. The Court: Jury disregard. Defense Counsel: Ask for a mistrial, Your Honor. The Court: It's denied. Prosecutor: So Officer . . . Davis, do you work the area around this defendant's — Defense Counsel: Excuse me, Your Honor. I object to any further testimony from Officer Hicks. The Court: That's overruled. * * * * *
Prosecutor: Is there a narcotics problem in that area? Defense Counsel: Your Honor, I object to that. It is not relevant. The Court: Sustained. Prosecutor: Your Honor, the evidence has indicated that he didn't — he was not aware of a narcotics problem outside of that — his barber shop. The Court: Your objection is sustained, [Defense Counsel]. Defense Counsel: Ask for an instruction to disregard the last question. The Court: Jury disregard. Defense Counsel: Ask for a mistrial, Your Honor. The Court: It's denied. Appellant's point of error must comport with his objection at trial. Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003). Appellant's basis for objection at trial was relevance as to other people having drug convictions and speculation as to whether appellant had been around drugs. All other objections made by defense counsel during this complained-of line of questioning were sustained by the trial court. On appeal, appellant contends that the State was attempting to use the evidence as a basis for alleging appellant was on drugs when he shot the deceased. He claims a rule 403 and rule 404(b) objection on that basis. This claimed error, however, does not comport with the objections at trial. See id. Therefore, appellant has waived review of this point. See Tex. R. App. P. 33.1(a) (providing that to preserve a complaint for appellate review, a party, among other things, must present an objection stating the specific grounds for the ruling desired). Accordingly, appellant's third point of error is overruled. IV. Testimony Read Back to the Jury
In his final two points of error, appellant argues that the trial court erred by overruling his objection to, and by failing to limit the scope of, the medical examiner's testimony read back to the jury during punishment deliberations. Appellant claims the trial court violated article 36.28 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 36.28 (Vernon 2006). A. Applicable Law and Standard of Review
Article 36.28 provides, in pertinent part, as follows: In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other. . . . Id. When the jury asks that certain disputed testimony be re-read, the court must first determine if the request is proper under article 36.28. Brown v. State, 870 S.W.2d 53, 55 (Tex.Crim.App. 1994) (en banc); Iness v. State, 606 S.W.2d 306, 314 (Tex.Crim.App. 1980). If it is proper, the trial court must then interpret the communication, decide what sections of the testimony will best answer the inquiry, and limit the re-reading accordingly. Brown, 870 S.W.2d at 55; Iness, 606 S.W.2d at 314 ("It is well settled that the trial court may allow a disputed portion of a witness' testimony to be read to the jury and refuse additional testimony."). The trial court's decision shall not be disturbed unless a clear abuse of discretion and harm is shown. Brown, 870 S.W.2d at 55. B. Cross-Examination of Medical Examiner
During the jury's punishment deliberations, the jury sent out several notes, including two that referred to the medical examiner's testimony regarding the angle of two particular bullet wounds. The first of those notes: "We need the M.E.'s testimony describing the angle of bullet wound A C. Lawyer-Prosecutor." The jury later sent out a form filled out by the foreman that read as follows: "Name of witness: Michael Lee Wilson; Lawyer questioning witness: Prosecutor; Point or statement in dispute: The angle of bullet wound 'A' and 'C'." Appellant first argues that the reading of only the direct examination testimony of the medical examiner without the cross-examination testimony was prejudicial to appellant and could have been perceived as a comment on the weight of the evidence. However, the jury requested the medical examiner's testimony provided on direct examination only, not on cross-examination. Where the jury indicates a specific and limited portion of testimony to be read, as in this case, the trial court does not abuse its discretion by only providing the requested information. Robison v. State, 888 S.W.2d 473, 481 (Tex.Crim. App 1994); see Iness, 606 S.W.2d at 317. C. Medical Examiner's Testimony Regarding Angle of Bullet Wounds
Appellant also complains that the following sections of testimony read back to the jury exceeded the scope of the jury's question about gunshot wounds A and C: Prosecutor: [B]efore I show photographs, let me ask you, the one to the hand, the one to the chest, excuse me, the one to the abdomen that left through the back of the deceased and the one through the abdomen, are all of those gunshot wounds consistent from a shooter being to — slightly to Larry King's right, the angle and exit entry, for example the abdomen was here, and then out the back, would that be consistent with a shooter being slightly to Larry King's right? Medical Examiner: Um, at least two of the wounds, that's true. The ones through the hands, really hard to tell. The one through the torso, both of those wounds to the torso, the direction of them goes from right to left in both cases. Prosecutor: So, that would indicate to you, at least for those two gunshot wounds, that the shooter was on Larry Kings' left? Medical Examiner: To Larry King's right because the trajectory again from right to left, in other words, going from the right side of the body to the left side of the body. * * * * *
Prosecutor: The two prior bullets that actually struck his body, the one that hit the abdomen and went out the back and the one that went through the chest and abdomen, did that strike any vital organs? Medical Examiner: Yes, the one that actually went through his chest and out the side of his — side of his abdomen, actually did perforate his heart and that was certainly a fatal wound. * * * * *
Prosecutor: Your Honor, may I use Ms. Hygh again? The Court: Yes, ma'am. Prosecutor: Stand over there Ms. Hygh. if you would go down on your knees again. But I hate to ask, but would you lay face down on the floor facing to your left and your arms tucked under you. Now, Doctor, you said earlier the gunshot, two of the gunshot wounds to Larry King's front, the abdomen shot and the chest shot, were consistent with someone shooting from Larry King's right, correct? Medical Examiner: Correct. Prosecutor: The gunshot wounds to the back of Larry King's body, the gunshot wound that went in his shoulder — and I am touching the upper right portion of Ms. Hygh's back — that ended up lodged in Larry King's elbow, that gunshot wound, would that be consistent from someone firing at this angle? Medical Examiner: No, you would have to be a little bit toward me, have to move a little toward me. Prosecutor: Little more towards the left? Medical Examiner: Toward the left. And her — she couldn't have her elbow like that. it would have to be down like this. Her hand would have to be down like this. Prosecutor: Ms. Hygh, if you would — Medical Examiner: Put your arm straight out. The reason I say that, because the bullet is actually lodged in the forearm right here. Prosecutor: Would it be possible for the hand to still be up under him? Medical Examiner: That hand could be under, but the forearm would have to be down — below the — below the upper arm. Defense Counsel: Your Honor, I believe — I object to this testimony. It exceeds the question. The Court: She can't take down the objection. Defense Counsel: I understand, Your Honor. It exceeds the scope of the question. The Court: Your objection is overruled. Assuming without determining that the trial court abused its discretion in having the medical examiner's testimony regarding the paths of all bullets read back to the jury rather than only the testimony regarding the paths of bullets A and C, we, nonetheless, conclude that the substantial rights of appellant were not violated by the trial court's order. See Tex. R. App. P. 44.2(b); Mosley, 983 S.W.2d at 259. In addition to the challenged testimony, the court reporter also read back to the jury appellant's testimony regarding the firing of the gun and the direction from which all shots were fired. The jury also asked for the medical examiner's report and photographs. The report contained a detailed description of each of the six gunshot wounds including where each bullet entered the body and where each bullet exited from or lodged in the victim's body. Although the testimony re-read to the jury included questions and answers which did not directly show the angles of bullets A and C, similar testimony had been presented through the reading of appellant's testimony and through the medical examiner's report. Thus, we conclude that the substantial rights of appellant were not violated. See Tex. R. App. P. 44.2(b); Mosley, 983 S.W.2d at 259. Points of error five and six are, therefore, overruled. V. Conclusion
Accordingly, we affirm the judgment of the trial court.