Griggs v. State , 167 S.W.3d 74 ( 2005 )

OPINION

BILL VANCE, Justice.

Gregory Barnett Griggs was found guilty by a jury of aggravated sexual assault on an elderly person. Tex. Pen.Code Ann. § 22.021 (Vernon Supp.2004-05). He was sentenced to life imprisonment and fined $10,000. He brings four issues on appeal: (1) his right to a fair and impartial trial was violated by the court’s allowing a witness to testify without proper notice being given by the State; (2) the evidence was not factually sufficient to sustain a verdict of guilty; (3) the trial court improperly overruled his motions for mistrial; and (4) the verdict is weakly supported by the record and the prosecution’s case was fraught with error.

BACKGROUND

The victim testified that she was sexually assaulted in her home by an unknown assailant. She had fallen asleep in front of the television and awoke in the dark. Her assailant ripped open her robe, held her arms, and sexually penetrated her. She was unable to see her assailant. After-wards, she heard crashing sounds as the assailant escaped through the kitchen. When police arrived, they found a back door- smashed out and shards of broken lattice panels. An officer testified that he found a glove lying on the ground among the lattice shards and paint chips. DNA found in the glove was compared to a blood sample drawn from Griggs. A DPS criminologist and a DNA expert each testified that the DNA from the glove matched that from the blood sample. Two witnesses testified to conversations they had with Griggs while they and Griggs were inmates. Inmate Gravitt testified that Griggs admitted to sexually assaulting an elderly woman in Griggs’s neighborhood. Inmate Spencer testified that Griggs nodded and grinned when he asked Griggs if he had committed the assault.

Undisclosed Witness

Griggs argues that he was denied his right to a fair and impartial trial because the trial court allowed a witness to testify without proper notice being given by the State. On the second day of testimony, the prosecution requested leave to allow an additional witness to testify. Over Griggs’s objection, the trial court allowed the testimony to be presented to the jury. In determining whether or not a trial court abused its discretion in allowing an undisclosed witness to testify, we consider whether the prosecution’s action constituted bad faith and whether the defendant could have reasonably anticipated the witness’s testimony. Wood v. State, 18 S.W.3d 642, 649 (Tex.Crim.App.2000).

The undisclosed witness — inmate Spencer — testified to a conversation he had with Griggs. Spencer’s attorney and the prosecutor both testified that the prosecution did not become aware of Spencer’s willingness to testify and of the conversation to which he would testify until the afternoon before the State requested leave to allow the testimony. The prosecutor informed Griggs’s counsel that evening of its intention to add Spencer to its witness list. The trial court found no bad faith on the State’s part and determined that the prejudice to the defense could be cured by granting defense counsel time to prepare. The court ordered the State to provide the defense relevant information regarding Spencer for the purpose of preparation and cross-examination.

Because the trial court could have reasonably found that the State did not learn of this witness until the time of trial, and because the trial court provided the defense an opportunity to prepare for cross-examination of the witness, the trial court did not abuse its discretion in allowing the witness testimony. See Stoker v. State, 788 S.W.2d 1, 15 (Tex.Crim.App.1989); Bridge v. State, 726 S.W.2d 558, 566 (Tex.Crim.App.1986).

Factual Sufficiency

Griggs argues that the evidence at trial was not factually sufficient to sustain the verdict. We review factual sufficiency by considering all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004).

Griggs argues that there is no physical evidence that placed him in the house where the attack took place. However, testimony by the investigating officer and the victim supports the State’s theory that the glove containing Griggs’s DNA was worn by the assailant during entry into the house and left behind by the assailant as he exited the home by breaking through the lattice and screen door. Inmate Grav-itt testified that Griggs bragged to him that he had assaulted an old woman in his neighborhood. Inmate Spencer testified that while he and Griggs were discussing the indictment against him, Griggs “grinned and shook his head yes” when the inmate asked Griggs if he had committed the crime. The defense called other inmates who testified that they had been asked by law enforcement officials to give information about Griggs. One inmate testified that inmate Gravitt said he would “give up a name for a whole bunch of time” and stated his desire to “take him [Griggs] down.”

The jury determines the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991). The evidence is not factually insufficient merely because the jury resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App.1997). Because we must defer to the jury’s determination of credibility, we cannot say that the jury was not rationally justified in finding Griggs guilty of the assault.

Motions for Mistrial

Griggs argues that the trial court improperly overruled his motions for mistrial after the State disregarded rulings and instructions by the trial court. We review an order denying a motion for mistrial for an abuse of discretion. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003). A trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict could be reached but would have to be reversed on appeal due to an obvious procedural error. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999).

Griggs complains of two types of prosecutorial misconduct. First, he argues that the prosecutor deliberately positioned a trial exhibit — a photograph that had been ruled inadmissible — face up on his counsel table in view of the jury. Griggs brought this to the court’s attention and requested a mistrial. The trial court denied the motion, instructed the prosecutor to keep documents not admitted into evidence out of the sight of the jury, and instructed the jury to disregard any documents, photographs, or objects they might see in the courtroom that have not been admitted as evidence. Although we do not condone such activity, we find that the instruction was sufficient to cure any harm.

Second, Griggs argues that the State committed prosecutorial misconduct by eliciting extraneous allegations against him. The court instructed the prosecutor that there should be no testimony regarding any criminal acts or offenses which were not subject to the current proceedings. The court specifically expressed its concern regarding testimony of admissions to three sexual assaults. In response to the court’s instruction, the prosecutor requested a break to speak to the witnesses before they were called. Nevertheless, when the prosecutor asked Gravitt what Griggs told him, Gravitt responded: “That he had raped some older women.” Later in his testimony, Gravitt repeated his statement that Griggs said “he had raped older women.” The prosecution’s next witness was the detective to whom Gravitt had made the statement. The detective testified that Gravitt had told him that Griggs said “he had raped three elderly women in his neighborhood.”

The State argues that Griggs failed to preserve his complaint in this instance because he did not timely object to the testimony. Generally, a timely objection to a violation of a motion in limine is necessary to preserve a complaint of error. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex.Crim.App.1994). However, an objection after an event occurs cannot fulfill the purpose of the objection, which is to prevent the occurrence of the event. Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App.2004). At the conclusion of the two 'witnesses’ testimony, Griggs made a motion for mistrial and requested an instruction. The trial court denied the motion for mistrial and instructed the jury before the next witness was called. Under these circumstances, Griggs’s actions were sufficient to preserve the complaint about the mistrial ruling. See id. (If an instruction could not have enabled the continuation of the trial by an impartial jury, “the only suitable remedy is a mistrial, and a motion for mistrial is the only essential prerequisite to presenting the complaint on appeal.”).

The asking of an improper question will seldom require a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Ladd, 3 S.W.3d at 567; Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex.Crim.App.1990). Similarly, a witness’s inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard. Rojas v. State, 986 S.W.2d 241, 250 (Tex.Crim.App.1998). An exception exists where the reference was clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to remove the harmful impression from the jurors’ minds. Id. A mistrial is required only when an improper question or reference is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. See Ladd, 3 S.W.3d at 567; Simpson, 119 S.W.3d at 272. Regardless of whether the prosecutor’s questions were intended to elicit the inadmissible testimony, the focus of our analysis is on the prejudice to the defendant. The testimony was not only heard by the jury but was repeated by two State’s witnesses, one of whom was the investigating officer in the case. Furthermore, the testimony was given in violation of the court’s earlier ruling. Afterward, the trial judge himself expressed concern that the testimony of the witnesses had jeopardized the trial. The impression produced in the minds of the jurors — that Griggs might be a serial rapist of elderly women — was highly prejudicial and could not be cured by an instruction to disregard. Given the lack of direct identification of the perpetrator of the crime charged, and because the prosecution relied heavily upon Griggs’s alleged admissions to his fellow inmates, the danger that the jury may have been swayed by the inadmissible testimony was particularly high. Under these circumstances, the trial court abused its discretion in denying Griggs’s motion for mistrial.

Weak Verdict/Prosecutorial Error

In his final issue, Griggs argues that the verdict is weakly supported by the evidence and the prosecution’s case was fraught with error. However, we have addressed the factual sufficiency of the evidence and Griggs does not present any additional prosecutorial errors for our review. Thus he presents no additional issue for our review.

CONCLUSION

Finding that the trial court abused its discretion in denying Griggs’s motion for a mistrial, we reverse the judgment and remand the cause for a new trial.

Chief Justice GRAY dissenting.