Neil Mukherjee v. State ( 2019 )

Opinion issued December 31, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00884-CR
———————————
NEIL MUKHERJEE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1566723
MEMORANDUM OPINION
Neil Mukherjee appeals his conviction for capital murder. In fifteen issues, he
challenges the sufficiency of the evidence, the admission of several pieces of
evidence: his statement, evidence of an extraneous robbery, surveillance video and
still photographs, the photo identification array, in-court identifications, the 911
recording, and victim impact testimony, and finally, the propriety of the prosecutor’s
closing argument. After a thorough review of the record and the applicable law, we
affirm.
Background
In 2012, Houston Police Officer R. Alva responded to a call about a daytime
shooting at an apartment complex in northwest Houston. Once at the apartment, Alva
knocked but did not receive a response. The front door was unlocked. The door
showed no signs of forced entry, but the screen on the window was bent. He found
a woman face down in a pool of blood on the floor, still alive, but unable to answer
questions. Her child, about a year old, was unharmed, sitting in a high chair. The
woman, later identified as V. Rodriguez, died at the hospital from multiple gunshot
wounds.
Lieutenant W. Meeler canvassed the apartment complex. He talked to
residents who described a “suspicious individual” in a gray hoodie who had been
“dodging employees” at the apartment complex that morning and was seen several
times around Rodriguez’s apartment. Meeler obtained surveillance video that
matched the individual’s description and depicted a man parking and exiting a
vehicle, putting on a gray Air Jordan Jumbo Jumpman hoodie, covering his head
with the hood, and entering the complex. Meeler released the video, stills from the
video, and the clothing description to the media and the public.
2
In response, Meeler received an anonymous tip that included the name Neil
Jay Mukherjee, a date of birth, identification of the vehicle in the video as a Chevy
TrailBlazer, and information that Mukherjee dropped his mother at work across the
street every morning. Meeler also received a call from the Harris County Sherriff’s
Office reporting that they were investigating a case with similar details. The
Sherriff’s case was an aggravated robbery in which two eye witnesses had picked
Mukherjee out of a photo line-up as the person they saw in the area. Based on the
anonymous tip, Meeler found a photograph of a Neil Jay Mukherjee and discovered
that he had a job interview scheduled in Donna, Texas. Meeler arranged a
multijurisdictional SWAT team from the Donna area and traveled there with two
police sergeants to speak with Mukherjee. Upon arriving in Donna, Meeler received
information that there was probable cause to arrest Mukherjee on the Sherriff’s case.
As Mukherjee departed his job interview, the SWAT team arrested him for
aggravated robbery. Following his arrest and statements to the police, Mukherjee
was indicted for capital murder. A jury found him guilty of capital murder, resulting
in an automatic sentence of life without parole.
Legal Sufficiency
In issues one and two, Mukherjee contends that there is insufficient evidence
to sustain his conviction for capital murder and that the trial court erred in denying
his motion for directed verdict. Specifically, Mukherjee argues that the State did not
3
establish beyond a reasonable doubt that Mukherjee killed Rodriguez during the
course of a burglary or robbery. In issue fourteen, Mukherjee argues that the trial
court erred in giving the capital murder charge to the jury because there was
insufficient evidence.
A. Standard of review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under Jackson v.
Virginia, 443 U.S. 307 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex.
Crim. App. 2013). Under the Jackson standard, evidence is insufficient to support a
conviction if, considering the record in the light most favorable to the verdict, no
rational fact-finder could have found that the State proved each element of the
charged offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; In re
Winship, 397 U.S. 358, 361 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
App. 2009). Evidence is insufficient under four circumstances: (1) the record
contains no evidence probative of an element of the offense; (2) the record contains
merely a “modicum” of evidence, probative of an element of the offense; (3) the
evidence conclusively establishes a reasonable doubt; or (4) the acts alleged do not
constitute the criminal offense charged. See Jackson, 443 U.S. at 314, 318 & n.11,
320; see also Laster, 275 S.W.3d at 518.
4
The sufficiency-of-the-evidence standard gives due credit to the role of the
factfinder to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;
see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We presume that
the fact-finder resolved any conflicts in the evidence in favor of the verdict and
defers to that resolution as long as the resolution is rational. See Jackson, 443 U.S.
at 326.
In our review of the record, “[d]irect and circumstantial evidence are treated
equally: ‘circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be enough to establish
guilt.’” Clayton, 235 S.W.3d at 778 (quoting Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007)). Finally, “[e]ach fact need not point directly and
independently to the guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.” Hooper, 214
S.W.3d at 13.
B. Elements of the offense
A person commits capital murder if he intentionally or knowingly causes the
death of another in the course of committing or attempting to commit a specified
offense, here, burglary of a building or attempted robbery. See TEX. PENAL CODE §
19.03(a)(1), (2).
5
A person commits burglary if, without the effective consent of the owner, the
person (1) enters a building or any portion of a building, not then open to the public,
with intent to commit a felony, theft, or assault or (2) enters a building and commits
or attempts to commit a felony, theft, or an assault. TEX. PENAL CODE §
30.02(a)(1), (3).
C. Burglary and murder evidence at trial
In a prosecution for capital murder based on burglary, the murder of the victim
satisfies the requirement that the entry be accompanied by the intent to commit a
felony. Gardner v. State, 306 S.W.3d 284, 287 (Tex. Crim. App. 2009). Here, the
jury heard evidence that Mukherjee entered Rodriguez’s home and that she was shot
multiple times and died as a result of her wounds. Even under Mukherjee’s version
of events, he entered Rodriguez’s home after she had told him to leave. The
apartment was not open.
As to Mukherjee’s intent to kill, the jury was entitled to rely on his decision
to cover his head before going to her apartment, his failure to assist or call for help
following the shooting, his theft of her cell phone so she could not call for help
herself, his flight from the scene after picking up a shell casing from the floor, and
testimony that he committed another similar robbery the same day with the same
weapon. The jury was also allowed to credit testimony that Rodriguez did not own
a gun or ammunition. The jury was entitled to use all these facts to conclude that
6
Mukherjee intended to shoot Rodriguez and that it was not an accident. Curry v.
State, No. PD-0577-18, 2019 WL 5587330, at *6 (Tex. Crim. App. Oct. 30, 2019)
(“Juries can draw any reasonable inference from the facts so long as each inference
is supported by the evidence.”). The jury was free to disbelieve Mukherjee’s
explanation that he shot Rodriguez accidentally after mistakenly arriving at her
apartment and struggling over a gun. Id. (“The jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony.”). When the record supports
conflicting, reasonable inferences, we presume that the jury resolved the conflicts in
favor of the verdict. Jackson, 443 U.S. at 326.
Because there was legally sufficient evidence that Mukherjee entered
Rodriguez’s home and intentionally shot her, there was sufficient evidence to sustain
his conviction for capital murder. For the same reasons, the trial court did not err by
denying Mukherjee’s motion for directed verdict. Because there was sufficient
evidence of burglary, we need not address whether there was sufficient evidence of
attempted robbery as part of the intentional killing of Rodriguez. Because there was
sufficient evidence of burglary and murder, the trial court did not err in submitting
the capital murder charge to the jury. We overrule issues one, two, and fourteen.
Custodial Statements
In his third issue, Mukherjee asserts that the trial court erred by denying his
motion to suppress his statements made in custody because law enforcement violated
7
his rights under Miranda v. Arizona, 384 U.S. 436 (1966), by using a “two-step
process” of extracting incriminating statements before reading him his Miranda
rights on the record. The State responds that the unrecorded portion of the interaction
between Mukherjee and police began with Miranda warnings and consisted of
“rapport building,” and that in the ensuing credibility contest, the trial court was
entitled to believe the detective’s testimony over Mukherjee’s.
A. Mukherjee’s arrest and interview
Following a tip that Mukherjee was interviewing for a job in Donna, Texas,
police officers, in concert with a SWAT team, arrested him for aggravated robbery.
Officer E. Cisneros traveled to Donna to interview him. The interview occurred at a
local Department of Public Safety office. Cisneros testified that he read Mukherjee
his Miranda rights before the interview began. The first part of the interview, which
Cisneros called “rapport building,” was about 25 minutes and was not recorded. The
second part of the interview, which Cisneros did record, began with Miranda
warnings and a statement by Cisneros that he had administered the warnings
previously. Both times, according to Cisneros, Mukherjee said that he understood
these warnings and agreed to waive his rights and speak to him.
During the recorded part of the interview, Mukherjee stated that on the date
of the offense, he was wearing a gray Air Jordan hoodie and shorts, driving a green
Chevy TrailBlazer, and went to the apartment complex where the offense occurred
8
to look for his friend who had moved. He knocked on an apartment door and asked
for his friend Maricela. A woman opened the door, told him to leave, and pulled a
gun on him. Mukherjee reached out, pushed the gun away, grabbed the gun from
her, and forced the woman backward to the interior hallway of her apartment.
Mukherjee did not want the woman to call the police so he grabbed her cell phone
from her with his other hand. According to Mukherjee, the woman came at him and
swung at his face, scratching him, causing him to squeeze the trigger of the gun
multiple times, shooting the woman. Mukherjee checked the other rooms of the
apartment to see if anyone else was there. Mukherjee picked up a shell casing in the
hallway, stepped over the bleeding woman lying on the floor, and left with the gun
and the woman’s phone. He ran to his car and drove off, throwing the gun and the
phone out of the window before he got on the freeway to Greenspoint.
B. Standard of review
When reviewing a trial court’s decision on a motion to suppress statements
from a custodial interrogation, we conduct a bifurcated review. Alford v. State, 358
S.W.3d 647, 652 (Tex. Crim. App. 2012). We afford almost total deference to the
trial court’s rulings on questions of historical fact and credibility and review de novo
the trial court’s rulings on questions of law and on application of law to questions of
fact that do not turn upon credibility or demeanor. Id. The court views the evidence
presented on a motion to suppress in the light most favorable to the trial court’s
9
ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We will affirm
the trial court’s ruling if it is correct under any theory of law applicable to the case
and is reasonably supported by the record. Winegarner v. State, 235 S.W.3d 787,
790 (Tex. Crim. App. 2007).
C. Credibility determination
Under the Fifth Amendment, no one may be compelled to be a witness against
himself in a criminal case. U.S. CONST. amend. V. Police must administer suspects
warnings of their constitutional rights before custodial interrogation. Miranda, 384
U.S. at 479. The United States Supreme Court has held that it is impermissible for
police to first ask questions of suspects in custody and only later warn suspects of
their Miranda rights. Missouri v. Seibert, 542 U.S. 600, 617 (2004). Seibert applies
only to deliberate police misconduct intending to subvert the protections of Miranda.
See Carter v. State, 309 S.W.3d 31, 38 (Tex. Crim. App. 2010).
Here, there is no debate that Mukherjee was “in custody” under the Fifth
Amendment when Cisneros interrogated him. Mukherjee had been arrested by a
SWAT team and brought to a DPS office in restraints. The only open questions are
whether Cisneros administered Miranda warnings before questioning Mukherjee,
and, if he failed to do so, whether that failure was deliberate.
The record reflects two competing versions of what happened during
Cisneros’s interrogation of Mukherjee. Cisneros testified that he administered
10
Miranda warnings twice, once at the beginning of the unrecorded “rapport
building”1 portion of the interview and again at the beginning of the recorded portion
of the interview that the jury heard. According to Cisneros, both times, Mukherjee
waived those rights and agreed to answer questions. The recording begins with
Cisneros suggesting that Mukherjee pull his chair up and advising that Cisneros
would read him the Texas Statutory Warnings that were on a “little blue card that
[Cisneros] read to him earlier.” Mukherjee did not contradict Cisneros on the
recording or say that he had never seen the card or heard the warnings before.
Mukherjee testified that he received no warnings the first time, during the
unrecorded portion of the interview. But Cisneros disagreed. The trial court, as the
finder of fact, could find Cisneros credible and resolve the disputed issue against
Mukherjee. See Enriquez v. State, 501 S.W.2d 117, 120 (Tex. Crim. App. 1973). In
denying the motion to suppress, the trial court impliedly rejected Mukherjee’s
version of the facts. Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000).
1
Cisneros and Mukherjee diverge as to the topics covered in the unrecorded portion
of the interview. According to Cisneros, the unrecorded portion of the interview
included some discussion of where Mukherjee was from, whether he had role
models, whether he had any prior arrests, and about the tattoo on his face. to
Mukherjee, the unrecorded portion of the interview also included discussion of
Rodriguez’s murder and his confession to killing Rodriguez accidentally, which
Cisneros suggested after telling him that twelve U.S. Marshals were waiting next
door and that he would be convicted of murder and never see his children again. See
State v. Cruz, 461 S.W.3d 531, 536 (Tex. Crim. App. 2015) (“In the Miranda
context, ‘interrogation’ means ‘any words or actions on the part of the police . . .
that the police should know are reasonably likely to elicit an incriminating
response.’”).
11
The record supports the implied finding that Mukherjee’s statement was voluntary
and was not obtained using a prohibited two-step “ask first, warn later” method. The
trial court did not err in denying Mukherjee’s motion to suppress his custodial
statements. We overrule Mukherjee’s third issue.
Extraneous Offense Evidence
In issues four, five, and six, Mukherjee relies on Texas Rules of Evidence
404(b) and 403 to challenge the admission of evidence of an aggravated robbery the
same day as Rodriguez’s murder. The State responds that the extraneous aggravated
robbery evidence was relevant to prove the absence of mistake or accident.
A. Aggravated robbery evidence
Harris County Sherriff’s Deputy C. Friedrich was investigating a home
invasion at an apartment complex across town from where Rodriguez was murdered.
The doorjamb to the apartment where the robbery occurred was broken, suggesting
a forced entry. Friedrich found blood on the floor, a bullet hole in one of the cabinets,
and a shell casing.
The woman who was robbed, T. Cruz, had a two-inch laceration on her head.
She told police that when she was entering her apartment carrying her small child, a
young man hit her in the head with a gun from behind. The gun discharged but she
was not shot. He pushed her into a chair, threatened her with the gun, and demanded
12
money. She said she had no money, but offered him her wallet. He did not take it.
The man was in her apartment for two minutes then left.
Cruz gave a description of the assailant as a short, young man with black hair
and a tattoo under his left eye. The apartment manager had also seen the suspect.
Friedrich was in search of a Hispanic male, described as short, with short hair,
wearing a gray hoodie, dark pants, and a box tattoo under his eye. Friedrich saw the
coverage of the Rodriguez murder case in the media and thought the suspect in that
case matched the description of the man he was searching for. He asked the
apartment manager to view the video, then he spoke to Meeler and got Mukherjee’s
name. Friedrich then showed Cruz and the apartment manager a photo array
containing Mukherjee’s photo along with photos of five other men. Both identified
Mukherjee. Friedrich filed for a warrant for Mukherjee’s arrest for aggravated
robbery. A judge signed the warrant, and Mukherjee was charged with aggravated
robbery. It was later determined that a cartridge casing retrieved from Cruz’s
apartment came from the same gun as a cartridge casing retrieved from Rodriguez’s
apartment.
B. Standard of Review
Appellate courts review a trial court’s determination of the admissibility of
extraneous-offense evidence under an abuse-of-discretion standard. Devoe v. State,
354 S.W.3d 457, 469 (Tex. Crim. App. 2011). This court will uphold a trial court’s
13
decision to admit extraneous-offense evidence if it is “within the zone of reasonable
disagreement.” Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). A
trial court’s ruling on extraneous-offense evidence is generally within the zone of
reasonable disagreement “if the evidence shows that 1) an extraneous transaction is
relevant to a material, non-propensity issue, and 2) the probative value of that
evidence is not substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury.” De La Paz v. State, 279 S.W.3d 336, 344 (Tex.
Crim. App. 2009). Furthermore, we uphold an evidentiary ruling under any
applicable theory of law, “even if the trial judge gave the wrong reason for [the] right
ruling.” Id.
C. Rule 404(b)
Generally, evidence of a person’s character is inadmissible to prove that on a
particular occasion the person acted in conformity with the character or trait. TEX.
R. EVID. 404(a)(1). Although evidence of a crime, wrong, or other act is not
admissible to prove a person’s character to show propensity, extraneous offense
evidence may be admissible for other purposes, such as proving the “absence of
mistake” or “lack of accident.” TEX. R. EVID. 404(b). The admissibility of an
extraneous offense under Rule 404(b) hinges on whether (1) it is relevant to an issue
other than the defendant’s character and (2) it has probative value that is not
14
substantially outweighed by undue prejudice under Rule 403. See Montgomery v.
State, 810 S.W.2d 372, 376–77 (Tex. Crim. App. 1990).
“When the defendant’s intent to commit the offense charged is at issue, the
relevance of an extraneous offense derives from the doctrine of chances–the
instinctive recognition of that logical process which eliminates the element of
innocent intent by multiplying instances of the same result until it is perceived that
this element cannot explain them all.” Brown v. State, 96 S.W.3d 508, 512 (Tex.
App.—Austin 2002, no pet.); see Wilson v. State, 473 S.W.3d 889, 905 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d). The State had the burden to prove that
Mukherjee intentionally killed Rodriguez. Because Mukherjee admitted that he had
shot Rodriguez, his intent was all that was at issue. The extraneous aggravated
robbery offense, committed the same day, with the same weapon, under similar
circumstances, tends to show that Mukherjee did not shoot Rodriguez accidentally.
See Johnston v. State, 145 S.W.3d 215, 222 (Tex. Crim. App. 2004); Smith v. State,
898 S.W.2d 838, 842 (Tex. Crim. App. 1995) (en banc). Thus, the extraneous
offense is relevant to an issue other than Mukherjee’s character or propensity.
D. Rule 403
The next part of the 404(b) analysis mirrors the balancing, under Rule 403, of
the value of the probative evidence against the danger of unfair prejudice to the
defendant. Montgomery, 810 S.W.2d at 377. “Evidence is prejudicial only when it
15
tends to have some adverse effect upon a defendant beyond tending to prove the fact
or issue that justified its admission into evidence.” Id. at 378 (quoting United States
v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980)). The court considers these factors:
(1) the strength of the evidence in making a fact more or less probable;
(2) the potential of the extraneous offense evidence to impress the jury in
some irrational but indelible way;
(3) the time the proponent needed to develop the evidence; and
(4) the strength of the proponent’s need for the evidence to prove a fact of
consequence.
Powell v. State, 189 S.W.3d 285, 287 (Tex. Crim. App. 2006). Because there was no
video of or eyewitness to the interaction between Mukherjee and Rodriguez, there
was little other evidence of Mukerjee’s intent, which weighs in the State’s favor for
factors one and four. Although Mukherjee argues that the State “did not need the
robbery case to make sense of what happened in the capital murder case,” that is not
so. Mukherjee claimed Rodriguez’s death was accidental. In opening argument,
defense counsel argued that the close-range injuries Rodriguez received fit with
“trying to get a gun away from somebody” and “with a struggle,” and so “this was
not an intentional killing per se. It was a struggle over a gun. The thing went off.”
Evidence of a similar offense, the same day, against a second woman with a
child at her apartment, with the same firearm, would have helped clarify whether
Mukherjee shot Rodriguez intentionally. Although any violent extraneous offense
16
could stoke the passions of the jury, that alone cannot weigh against admission of all
violent extraneous offenses. Cf. Martin v. State, 173 S.W.3d 463, 468 (Tex. Crim.
App. 2005) (upholding admission of extraneous sexual assault evidence in similar
sexual assault case because consent was at issue).
In any event, we presume the jury followed the court’s instruction, both at the
beginning of the case and after the close of evidence, to use the extraneous offense
evidence only to determine “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident” of the defendant and for no
other purpose. See McGregor v. State, 394 S.W.3d 90, 121 (Tex. App.—Houston
[1st Dist.] 2012, pet. ref’d) (quoting TEX. R. EVID. 404(b)). The final factor is the
time needed to develop the evidence, which Mukherjee does not challenge. The State
called two eyewitnesses and the investigating officer to testify about the extraneous
aggravated robbery. There were 15 witnesses for the entire trial. Rule 403 “envisions
exclusion of evidence only when there is a ‘clear disparity between the degree of
prejudice of the offered evidence and its probative value.’” Hammer v. State, 296
S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192,
202 (Tex. Crim. App. 2001)). There is no clear disparity here.
We conclude that the trial court did not err in determining that the extraneous
robbery was relevant to an issue other than character conformity, namely intent and
the lack of accident, and that the probative value of this evidence was not
17
substantially outweighed by undue prejudice to Mukherjee. We overrule issues four,
five, and six.
Admission of Video Evidence
Mukherjee contends in his seventh issue that the trial court erred by admitting
a copy of surveillance video and still images taken from video of Rodriguez’s
apartment building because there was inadequate foundation from the sponsoring
witness. In response, the State argues that the proponent of a video may show its
authenticity without testimony from someone who witnessed what the video depicts.
While investigating the case, officers asked A. Martinez, the owner of the
business that installed the security system at Rodriguez’s apartment complex, to
retrieve the video from the DVR recorded the day Rodriguez was killed. His
employee retrieved the data and put it on a USB drive belonging to the police.
Martinez reviewed the video to verify that it was transferred correctly.
At trial, Martinez testified that the video feed from camera six that his firm
put on the USB matched the DVD offered at trial, depicting a man wearing a hoodie
walking through the entrance to Rodriguez’s apartment complex the day she was
killed. He also noted the watermark on the video that identified it as being from the
apartment complex video equipment. The watermark represents an encryption that
prevents anyone without the proper software from viewing the video. According to
Martinez, the watermark shows that the video was not edited. Martinez identified
18
the six stills as having been taken from the DVD containing the content from the
DVR recording of the apartment complex security footage and confirmed that they
fairly and accurately represented the scene recorded in the video. Over defense
counsel’s objection, the court admitted the video and the still images taken from the
video.
A. Standard of review
We review a trial court’s ruling on the admissibility of evidence over an
authentication objection using the abuse of discretion standard. Angleton v. State,
971 S.W.2d 65, 67 (Tex. Crim. App. 1998) (en banc). If the trial court’s ruling is
“within the zone of reasonable disagreement, the appellate court will not interfere.”
Washington v. State, 485 S.W.3d 633, 640 (Tex. App.—Houston [1st Dist.] 2016,
no pet.).
B. Authentication
Authentication is a condition precedent to the admissibility of evidence. TEX.
R. EVID. 901(a). It is met by evidence sufficient to support a finding that the matter
in question is what its proponent claims. Id. In a jury trial, the preliminary question
for the trial court is whether the proponent of the proffered evidence has supplied
sufficient facts to support a reasonable jury determination that the evidence is
authentic. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Although
the typical way to provide facts that support a reasonable jury determination that the
19
evidence is what it purports to be is through a witness with personal knowledge, it
is not the only way. Fowler, 544 S.W.3d at 848. Instead, evidence may also be
authenticated by “[t]he appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all the circumstances.” Id.
at 849 (citing TEX. R. EVID. 901(b)(4)).
Here, the State’s witness, Martinez, testified that he installed the security
camera, reviewed the video footage on the day it was captured in 2012, and
supervised the transfer of the video. He identified the digital watermark and
confirmed that the footage had not been edited and that the stills from the video were
a fair and accurate depiction of the scene at the apartment complex.
In light of Martinez’s testimony, we cannot say that the trial court’s decision
to admit the surveillance video and stills was an abuse of discretion. We overrule
issue seven.
Admission of Photo Arrays and In-Court Identifications
In issues eight and nine, Mukherjee argues that the photo arrays showed to
Cruz and the apartment manager were unduly suggestive and that they tainted the
in-court and out-of-court identifications. Specifically, Mukherjee objects to the array
because, although Mukherjee’s was not the only photo in the array with a tattoo
under his eye, his was the only one with a distinctive “box” tattoo. Mukherjee
contends that the trial court committed reversible error in admitting the suggestive
20
photo arrays and permitting witnesses who had participated in the photo-array
identification to identify him in court.
A. Photo array
The apartment manager reviewed the surveillance video from Rodriguez’s
apartment complex and said it “sent chills down her spine.” Based on the apartment
manager recognizing the person in the video, Detective Friedrich prepared photo
arrays to show her and Cruz, the complaining witness in the aggravated robbery. The
police database selected the fill-in photos at random based on the identifying criteria
Friedrich inputted. Mukherjee’s photo was the only one in the array with a square
tattoo under the eye. The database did not have a selection for square tattoos under
the eye, but Friedrich could have digitally added a tattoo to each photo. He did not
know this at the time. The two arrays displayed photos of the same six men in
different order. Friedrich showed the photo arrays to Cruz and the apartment
manager on the same day in separate locations.2 Both selected the photo of
Mukherjee as the person who was in and around Cruz’s apartment. After each
witness had positively identified Mukherjee, Friedrich told each witness that she had
selected the right person and that the person she identified had committed a homicide
just before he broke into Cruz’s apartment.
2
There was conflicting testimony about whether Friedrich was in the room while the
witnesses reviewed the photo arrays. Friedrich said he left the room, but Cruz
testified that he was present when she made her identification.
21
Friedrich admitted that having no photos of men with square tattoos under
their eyes could be suggestive and that telling witnesses that they accurately
identified the suspect could bolster the out-of-court and later in-court identifications.
Defense counsel objected to the admission of the photo arrays and to in-court
identification of Mukherjee. The court overruled the objections, admitted the photo
arrays, and allowed Cruz and the apartment manager to identify Mukherjee in court.
B. Standard of review
The standard of review on a claim that an in-court identification should not
have been admitted because of the taint of an impermissibly suggestive pretrial
identification procedure is set forth in Loserth v. State, 963 S.W.2d 770 (Tex. Crim.
App. 1998) (en banc). Our standard of review turns on the type of question presented
to the reviewing court. Id. at 772. First, in general, we must give almost total
deference to a trial court’s determination of historical facts supported by the record,
especially when the trial court’s fact findings are based on the credibility and
demeanor of the witnesses. Id. Second, we give the same amount of deference to the
trial court’s rulings on “application of law to fact questions,” also known as “mixed
questions of law and fact,” if resolving those questions turns on an evaluation of
credibility and demeanor. Id. Finally, we review de novo “mixed questions of law
and fact” that do not fall within the second category. Id. Here, whether an
identification procedure was so impermissibly suggestive as to give rise to a very
22
substantial likelihood of misidentification is a mixed question of law and fact that
does not turn on an evaluation of credibility and demeanor. Id. at 772–73. Thus, we
apply a de novo standard of review.
C. Admissibility challenge
When challenging the admissibility of a pretrial identification, the defendant
has the burden to show that (1) the out-of-court identification procedure was
impermissibly suggestive, and (2) the suggestive procedure gave rise to a very
substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d
27, 33 (Tex. Crim. App. 1995) (citing Simmons v. United States, 390 U.S. 377
(1968)). The court examines the “totality of the circumstances” surrounding the case
and determines the reliability of the identification. Id.
Cruz gave police a detailed description of her assailant right after the incident.
Cruz testified that she could recognize Mukherjee’s photo quickly in the array
because she “got a good look at his face” when he was in her apartment for two
minutes. She recognized the color of his shirt. There was no testimony that
Mukherjee’s face was obstructed by a mask, hat, or other covering or that she had
any impairment in her vision or memory. Most importantly, Cruz testified that she
selected Mukherjee because of his face, not his tattoo.
The apartment manager remembered that the person she saw when she was
walking her property wore a gray long-sleeved hoodie and had a tattoo near his eye.
23
She knew all her residents so the man stood out. When she talked to Cruz about the
robbery, Cruz mentioned the man with the tattoo, leading the apartment manager to
believe she had seen the same man. The day of the incident, she gave a description
to police, that the man was about 5’3” to 5’5” and 160 pounds, with black hair,
brown eyes, and a square tattoo under his right eye, wearing a gray hoodie. The
apartment manager recognized the tattoo when she identified Mukherjee in the photo
array, but she also recognized his face and “the way he looks.” As soon as the deputy
showed her the photos, the apartment manager knew who it was because, as they
crossed paths, she and the man were just inches apart and looked each other in the
eye. She also recognized the man’s clothing from the surveillance video from the
other apartment complex.
Even if the photo array were impermissibly suggestive, Mukherjee has no
right to relief unless he can show that the lineup gave rise to a “very substantial
likelihood of irreparable misidentification.” Balderas v. State, 517 S.W.3d 756, 792
(Tex. Crim. App. 2016). “The court assesses reliability by weighing five non-
exclusive factors against the corrupting effect of any suggestive identification
procedure: (1) the opportunity of the witness to view the suspect at the time of the
crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior
description of the criminal; (4) the level of certainty demonstrated by the witness at
the confrontation; and (5) the length of time between the crime and the
24
confrontation.” Id.; see also Fisher v. State, 525 S.W.3d 759, 763 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d).
Both witnesses had the opportunity to view the suspect the morning of the
robbery at close range with close attention. During daylight hours, the apartment
manager locked eyes with him a few inches from her and noted him as not being one
of her residents. Cruz observed him for two minutes in her apartment and spoke with
him. Both witnesses described him as being a short-haired Hispanic male wearing a
gray hoodie, not tall, with short hair and a tattoo under his eye. Both witnesses
recognized the suspect, whose face could not be seen, in the video from the other
apartment complex, based on other characteristics. The apartment manager’s
recognition was such that a chill ran up her spine when she reviewed the video. Both
witnesses immediately recognized the man they saw in the photo lineup. Both
witnesses were consistent in their identification of Mukherjee at confrontation. The
time between the offense and the identification was a matter of days. In short, none
of the Balderas factors support a finding that any impermissibly suggestive lineup
created a substantial risk of misidentification that would deny Mukherjee due
process. We overrule issues eight and nine.
Admission of the 911 Recording
In issues ten, eleven, and twelve, Mukherjee contends that the recording of
the 911 call from Rodriguez contained hearsay, denied Mukherjee his Sixth
25
Amendment right to confront his accusers, and should have been excluded because
its probative value was substantially outweighed by its prejudicial impact. The State
contends that Mukherjee failed to preserve his complaint for appeal because he did
not identify which portions of the tape were inadmissible, the tape was not hearsay
because it was not offered to prove the truth of the matter asserted, the tape contains
present-sense impressions, the statements on the tape were non-testimonial so are
not subject to confrontation, and the fact that a baby can be heard crying in the
background does not make the tape substantially more prejudicial than probative.
The State contends that the tape is admissible even though it does not establish a
material fact because it provides a framework within which the State’s evidence may
be developed.
Before the introduction of the 911 call, defense counsel objected that it was
hearsay, that it denied Mukherjee his Sixth Amendment right to confront witnesses,
and that the prejudicial impact outweighed the probative value, then conceded that
it was Rodriguez’s voice on the tape. The State responded that Mukherjee had no
right to confront the witness he killed, that it was filed as a business records affidavit,
and it was “a basic 911 tape.” The trial court overruled defense counsel’s objections.
The jury heard the recording of the 911 call where someone identified as
“Steve from Houston Fire” assists Rodriguez to complete a call and informs the
operator that Rodriguez had tried to call before and that she had been shot.
26
Rodriguez, herself, does not really speak but can be heard moaning and breathing
heavily for several minutes. A baby vocalizing can be heard in the background.
Much of the recording is taken up with the operator being on hold while another call
to an unknown entity is placed or waiting for services to arrive.
1. Preservation
The State contends that Mukherjee failed to preserve his complaints about the
admission of the 911 recording because he failed to specify which statements
violated his right to confrontation, were hearsay and were more prejudicial than
probative. To preserve error for appellate review, a defendant must make a complaint
to the trial court “by a timely request, objection, or motion that . . . state[s] the
grounds for the ruling that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint, unless the
specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). The
context of the objections here makes the nature of the objections clear enough. See
Jimenez v. State, 446 S.W.3d 544, 549–50 (Tex. App.—Houston [1st Dist.] 2014,
no pet.) (“no ‘magic words’ are necessary” to preserve error). The defense sought to
keep the entire recording out because it contained the statements of a witness
27
(Rodriguez) that he could not confront,3 the entire recording was hearsay,4 and was,
in the defense’s view, substantially more prejudicial than probative.5 We hold that
Mukherjee has preserved his issues for review.
2. Standard of review
In deciding the constitutional issue of whether the admission of a statement of
another violates a defendant’s Sixth Amendment confrontation right, appellate
courts review the trial court’s ruling de novo. Mims v. State, 238 S.W.3d 867, 871
(Tex. App.—Houston [1st Dist.] 2007, no pet.).
We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).
An appellate court will not reverse a trial court’s ruling unless that ruling falls
outside the zone of reasonable disagreement. Id.
3. Confrontation under the Sixth Amendment
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
3
When the trial court asked whose voice was on the call, defense counsel explained
that it was the complainant’s. If Rodriguez’s portion of the recording were removed,
the recording would lose any probative value.
4
Defense counsel consistently referred to the recording collectively as “the tape.”
5
Defense counsel explained, “the tape is very, very – even for me, very emotional.
And I know the emotional impact it would have on the jury will confuse the issues
and make them reach a decision on emotions rather than on the law and logic.”
28
against him.” U.S. CONST. amend VI. This bedrock procedural guarantee applies to
both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406 (1965). In
Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court established a new
framework for analyzing Confrontation Clause claims. If the statement at issue is
“testimonial,” it is inadmissible unless the declarant is unavailable and the accused
has had a prior opportunity for cross-examination. Id. at 53–54. Thus, the threshold
issue under Crawford is whether the statement to be admitted is testimonial. Spencer
v. State, 162 S.W.3d 877, 879 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
The Crawford Court did not define “testimonial,” but it noted three formulations of
“core” testimonial evidence: (1) “ex parte in-court testimony or its functional
equivalent,” such as affidavits, custodial examinations, prior testimony not subject
to cross-examination, or “similar pretrial statements that declarants would
reasonably expect to be used prosecutorially,” (2) “extrajudicial statements” of the
same nature “contained in formalized testimonial materials,” and (3) “statements
that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.”
541 U.S. at 51–52.
To determine whether the admission of the 911 recording violated the
Confrontation Clause, we must first determine whether the statements on the tape
29
are testimonial. In Davis v. Washington, the United States Supreme Court explained
the distinction between testimonial and nontestimonial statements:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
547 U.S. 813, 822 (2006).
“Statements made to police during contact initiated by a witness at the
beginning of an investigation are generally not considered testimonial.” Cook v.
State, 199 S.W.3d 495, 498 (Tex. App.—Houston [1st Dist.] 2006, no pet.). For this
reason, 911 calls initiated to summon police assistance are generally nontestimonial
because they are “a cry for help” or “the provision of information enabling officers
to end a threatening situation.” Cook, 199 S.W.3d at 498; see Rodgers v. State, No.
09-09-00359-CR, 2010 WL 3043705, at *2 (Tex. App.—Beaumont Aug. 4, 2010,
no pet.) (mem. op., not designated for publication) (listing cases in which courts
concluded similar 911 calls were nontestimonial).
In analyzing whether statements made to a 911 operator were testimonial, the
Davis court noted four features of the call: (1) the caller was describing events as
they were happening rather than past events; (2) any reasonable listener would
recognize that the caller was facing an ongoing emergency; (3) when viewed
30
objectively, what was asked and answered was such that the elicited statements were
necessary to resolve the present emergency; and (4) the caller was frantically
answering the 911 emergency operator’s questions over the phone, in an unsafe
environment. Davis, 547 U.S. at 826–27.
Here, the entire purpose of the 911 call was to secure medical attention for
Rodriguez during an ongoing medical emergency. There were no questions on the
recording designed to advance a criminal prosecution. We conclude that the out-of-
court statements on the 911 recording, when viewed objectively, were made under
circumstances revealing that the primary purpose of the discussion was to enable the
police to meet an ongoing emergency, rather than to establish or prove past events
potentially relevant to later criminal prosecution. See Davis, 547 U.S. at 822.
Because the statements were not testimonial, the trial court did not err in overruling
Mukherjee’s confrontation objection.
4. Evidentiary objections
Besides the confrontation objection, Mukherjee lodged two objections to
admission of the 911 call recording under the rules of evidence. First, Mukherjee
objected that the 911 recording contained hearsay. Hearsay is an out-of-court
statement offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d);
Baldree v. State, 248 S.W.3d 224, 230–31 (Tex. App.—Houston [1st Dist.] 2007,
31
pet. ref’d). Hearsay statements are inadmissible, except as provided by statute or
other rule. TEX. R. EVID. 802; Baldree, 248 S.W.3d at 231.
“A statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused” is considered an “excited
utterance” and is an exception to the rule against hearsay. TEX. R. EVID. 803(2). The
statements, made shortly after Rodriguez was shot multiple times, were admissible
as an excited utterance. See Cook, 199 S.W.3d at 498. We cannot say that the trial
court acted outside the zone of reasonable disagreement in overruling Mukherjee’s
hearsay objection.
Next, Mukherjee challenges the admission of the 911 recording as
substantially more prejudicial than probative. See TEX. R. EVID. 403. In reviewing a
ruling on a 403 objection, first, we examine whether the evidence is relevant then
we determine whether the “probative value of that evidence is not substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury.” De La Paz, 279 S.W.3d at 344.
Although 911 recordings may be admissible even if unnecessary to establish
a material fact because they “provide a framework” within which the State can
develop its evidence, see, e.g., Webb v. State, 760 S.W.2d 263, 276 (Tex. Crim. App.
1988) (en banc), that is not what happened here. Instead, the 911 recording was the
last piece of evidence the jury heard. There was no further evidence to develop and,
32
indeed, no new information was adduced by admitting the recording. The State did
not identify any probative evidence in the recording and we find none. The
recording, however, was prejudicial. Although she is not speaking understandable
words, Rodriguez moans and is breathing heavily. Her child can be heard crying in
the background. The jury had already been told that she was found in a pool of blood
and died. The recording had the potential to impress the jury in an irrational way.
Even if the 911 recording was erroneously admitted, to show reversible error,
Mukherjee must demonstrate harm. Error in the admission of evidence is non-
constitutional error subject to a harm analysis under Texas Rule of Appellate
Procedure 44.2(b). See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
1998); TEX. R. APP. P. 44.2(b). We disregard any non-constitutional error that does
not affect substantial rights. TEX. R. APP. P. 44.2(b). A substantial right is affected
when the error had a substantial and injurious effect or influence in determining the
jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We will
not overturn a conviction for non-constitutional error if, after examining the record,
we have fair assurance that the error did not influence the jury or had but a slight
effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).
In making this determination, we review the record as a whole, including any
testimony or physical evidence admitted for the jury’s consideration, the nature of
the evidence supporting the verdict, and the character of the alleged error and how
33
we might consider it with other evidence in the case. Motilla v. State, 78 S.W.3d
352, 355 (Tex. Crim. App. 2002). We may also consider the voir dire, the State’s
theory and any defensive theories, jury instructions, closing arguments, and whether
the State emphasized the error. Id. at 355–56.
The evidence against Mukherjee was very strong, which reduces the potential
for any error to sway the jury. Two witnesses identified him, he admitted going into
Rodriguez’s apartment at the time of the offense and that the gun went off, causing
Rodriguez’s wounds, and there was video of someone matching his description at
the apartment complex. The only issue for the jury to resolve was whether Rodriguez
came to the door pointing a gun at Mukherjee and in an ensuing struggle the gun
went off multiple times accidentally, or whether Mukherjee intentionally killed
Rodriguez. The 911 call recording was a very brief portion of the trial. No questions
were asked. It did not come up other than during the State’s closing argument, and
then only briefly:
So, she reaches up and somehow pulls herself up to get this phone so
that she can call to try to get somebody to help her. And you heard on
the 911 phone call that once she – once she struggled and got that
phone, she didn’t have much left. She could barely talk at all. She was
just breathing, trying to survive, trying to make it for her daughter, who
was sitting in a highchair just feet away, crying for her mom, who’s
bleeding out on the floor in front of her. But she’s breathing, trying to
survive for her son, who she’d taken to school earlier that day, and for
her husband who’s at work. And, so, she survives until an ambulance
gets there, until Officer Alva gets there, but not much longer.
34
Based on the strength of the evidence against Mukherjee and the limited time
and emphasis on the recording, which contained only cumulative evidence,
we cannot conclude that “the error itself has substantial influence” or that we
are “left in grave doubt” that it does. Kotteakos v. United States, 328 U.S. 750,
764–65 (1946); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).
Given the entire record, we cannot conclude that any error in admitting the
911 recording affected Mukherjee’s substantial rights.
For these reasons, we overrule Mukherjee’s issues ten, eleven, and
twelve.
Testimony of Rodriguez’s Sister
In issue thirteen, Mukherjee argues that the trial court erred in admitting the
testimony of Rodriguez’s sister, which he classifies as irrelevant under Texas Rule
of Evidence 401 and “victim-impact testimony.” The State contends that Mukherjee
failed to preserve error because he failed to obtain a ruling from the trial court when
he objected to Rodriguez’s sister’s testimony and that the testimony at issue is not
victim-impact testimony.
A. Standard of review
The trial court exercises discretion in admitting victim impact evidence, while
appropriately limiting the amount and scope of this evidence. Salazar v. State, 90
35
S.W.3d 330, 336 (Tex. Crim. App. 2002). An appellate court reviews the admission
of victim impact testimony under an abuse of discretion standard. Id.
B. Admission of details about Rodriguez’s morning
Victim-impact evidence is evidence of the “effect the victim’s death” has on
other people, particularly family members. Haley v. State, 173 S.W.3d 510, 517
(Tex. Crim. App. 2005). Victim-impact evidence may be admissible at punishment,
when the defendant’s personal responsibility or moral culpability is at issue. Love v.
State, 199 S.W.3d 447, 456–57 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
But it is not relevant at the guilt-innocence phase of the trial because it does not tend
to make more or less probable the existence of any fact of consequence about guilt.
Id.; see TEX. R. EVID. 401.
Outside the presence of the jury, defense counsel first objected to Rodriguez’s
sister identifying Rodriguez with an autopsy photo on relevancy grounds. The
prosecutor responded that the State had the burden of proof to show that it was
Rodriguez who was killed and no one else had identified her. Defense counsel
withdrew the objection. Defense counsel then objected to victim impact information
such as where Rodriguez worked and that she was a loving mother. The trial court
asked the prosecutor, “You’re not going to try to do all that, are you?” The prosecutor
replied, “Of course not.”
36
The prosecutor did not elicit information about Rodriguez being a loving
mother or where she worked, but she did ask why it would seem weird that
Rodriguez would ask her sister to come over for breakfast. Defense counsel objected
on relevance grounds and there was a bench conference. The prosecutor said it was
“nothing really” and just that she wanted to know why it was weird. The defense
reurged its relevance objection, but the trial court responded only “[a]ll right” and
“[y]ou may proceed.” The prosecutor asked detailed questions about what they had
for breakfast and where Rodriguez was standing and where the baby was, without
objection. When the State showed Rodriguez’s sister the photo of Rodriguez and
asked her to identify who was in the photo, the defense did not object.
1. Victim-impact
First, to preserve a complaint about the erroneous admission of victim-impact
evidence, the defendant must object on the ground that evidence constitutes
impermissible victim-impact evidence. Reynolds v. State, 371 S.W.3d 511, 525
(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). After the initial objection, the
defendant did not renew a victim-impact objection. See Pena v. State, 285 S.W.3d
459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint is
preserved depends on whether the complaint on appeal comports with the complaint
made at trial.”); Love, 199 S.W.3d at 456 (“Texas law requires a party to continue
to object each time inadmissible evidence is offered, except when defense counsel
37
requests a running objection or objects out of the presence of the jury to all testimony
he deems objectionable on a given subject.”). After the defense objection to potential
victim-impact topics before Rodriguez’s sister testified, the defense did not renew
its victim-impact objection or obtain a running objection to any of the sister’s
testimony. As a result, Mukherjee did not preserve the victim-impact objection. See
Ashire v. State, 296 S.W.3d 331, 342-43 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d).
Second, even if the error were preserved, the State solicited no testimony
about the physical, psychological, or economic effects of the crime on Rodriguez’s
family members. See Reynolds, 371 S.W.3d at 526; Love, 199 S.W.3d at 456.
Rodriguez’s sister’s testimony about the details of their last breakfast together is not
victim-impact testimony because there was no discussion of how the offense
affected Rodriguez’s family after her death. See Reynolds, 371 S.W.3d at 526; Love,
199 S.W.3d at 456. Thus, Mukherjee’s challenge to the trial court’s decision to admit
Rodriguez’s sister’s testimony as victim-impact evidence is unavailing.
2. Rule 401
There is also a preservation problem with the relevance objection. The defense
objected once under Rule 401 to the State’s question about why it was weird for
Rodriguez to invite her sister to breakfast but did not renew the objection or obtain
a running objection to over a dozen pages of testimony about Rodriguez’s last few
38
hours that Mukherjee challenges on appeal. This could not preserve Mukherjee’s
broader appellate complaint about the relevance of all this testimony. See Love, 199
S.W.3d at 456.
While the sister’s perception of why it was strange for her sister to invite her
to breakfast has no apparent bearing on whether Mukherjee intentionally killed
Rodriguez, see TEX. R. EVID. 401, Mukherjee identifies no harm from this inquiry
and we find none. See TEX. R. APP. P. 44.2(b) (non-constitutional error that “does
not affect substantial rights must be disregarded.”). Reviewing only the preserved
challenge to the testimony about why it was strange for Rodriguez to invite her sister
for breakfast, we find no reversible error in its admission.
We overrule Mukherjee’s thirteenth issue.
State’s Closing Argument
In issue fifteen, Mukherjee argues that the State impermissibly shifted the
burden of proof to the defense when the prosecutor argued:
[Mukherjee’s] excuse of her coming from the bathroom doesn’t explain
how there is no hole in her blouse where the bullet hit her on the
stomach and that there’s stippling on her stomach, showing that her
blouse was pulled up as she was shot in the stomach. You notice how
both Mr. Kiernan and Mr. Stafford [defense counsel] both spoke to you.
Neither one of them had any explanation for how that could have
happened.
The trial court sustained defense counsel’s objection to the shifting of the
burden of proof and instructed the jury to disregard the prosecutor’s comments, but
39
the trial court denied the defense’s motion for a mistrial. The jury charge also
instructed the jury that the “law does not require a defendant to prove his innocence
or produce any evidence at all.” An instruction to the jury to disregard improper jury
argument cures the error unless the remark is “so inflammatory that its prejudicial
effect could not reasonably be overcome by such an instruction.” Wilkerson v. State,
881 S.W.2d 321, 327 (Tex. Crim. App. 1994) (en banc). This occurs where the
improper argument is “extreme or injects new and harmful facts into the record.”
Baker v. State, 177 S.W.3d 113, 126 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
Mukherjee does not contend that the prosecutor’s argument falls into either of these
categories. Given the fleeting nature of the comment and the instructions to the jury
both at the time of the comment and in the written jury instructions, we cannot
conclude that the instructions could not overcome the prejudicial effect of the
comments. Accordingly, the trial court’s instruction to the jury to disregard the
prosecutor’s allegedly improper jury argument cured any possible harm from the
statement. We overrule Mukherjee’s final issue.
Conclusion
After a thorough review of the record and the applicable case law, we
conclude that (1) the trial court did not err by denying Mukherjee’s motion for
directed verdict or instructing the jury on the charged offense; (2) the evidence was
legally sufficient to sustain Mukherjee’s conviction for capital murder; (3) the trial
40
court did not err in denying Mukherjee’s motion to suppress his custodial statements,
including those about the aggravated robbery; (4) the trial court did not err by
admitting evidence of the extraneous aggravated robbery under Texas Rules of
Evidence 404(b) and 403; (5) the trial court did not err in admitting the apartment
complex surveillance video and still images; (6) the trial court did not err in
admitting the photo arrays or permitting in-court identifications of Mukherjee; (7)
the trial court’s admission of the 911 call recording did not violate Mukherjee’s Sixth
Amendment right to confrontation, nor did its admission constitute reversible error
under Texas Rules of Evidence 801 or 403; (8) the trial court did not err by
permitting victim-impact testimony during the guilt-innocence phase of the trial; and
(9) the trial court did not err by denying Mukherjee a mistrial after sustaining his
objection to improper closing argument and instructing the jury to disregard it.
41
We affirm the judgment of the trial court.
Sarah Beth Landau
Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
42