Billy Cheeks v. State ( 2013 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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BILLY CHEEKS, No. 08-10-00353-CR
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Appellant, Appeal from
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v. 168th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20100D02976)
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OPINION
Billy Cheeks appeals his conviction of family violence assault enhanced by a prior
conviction of family violence assault. The indictment charged Appellant with aggravated assault
in Count I and family violence assault (enhanced) in Count II. A jury acquitted Appellant of
aggravated assault but found him guilty of Count II. At the conclusion of the punishment phase
of trial, the trial court found Appellant had previously been convicted of attempted murder as
alleged in the enhancement paragraph and assessed his punishment at imprisonment for a term of
twelve years. We affirm.
FACTUAL SUMMARY
Petra Chriktane Triplett was living with Appellant on June 1, 2009. That morning,
Appellant went to the store to buy beer, wine, and cigarettes. Appellant returned home and
discovered that the clerk had not put the cigarettes in the bag. Appellant became furious and
blamed Triplett even though she had not gone to the store with him. Appellant told her to shut
up and go stay in the bedroom until he told her she could come out. Triplett left the apartment
and went to a friend’s house where she stayed until the evening. Appellant sent Triplett several
text messages while she was gone and accused her of having an affair. Triplett returned to the
apartment at 9 p.m. and Appellant began yelling at her. He also shoved her around the
apartment. Triplett turned to leave the apartment when Appellant grabbed her and threw her into
the hallway. He forced her into the bedroom and suddenly kicked her in the ribs which caused
her to fly into the wall and fall to the floor. Triplett described it as a “karate kick jump.” Triplett
could not breathe and felt tremendous pain in the rib area. While Triplett was on the floor
clutching her ribs, Appellant began punching her in the back, neck, and head. He also put both
hands around her neck and choked her until she could not breathe until he suddenly stopped and
returned to the living room to watch television. After a few minutes, Triplett went into the living
room and told Appellant she needed to go to the hospital but Appellant initially refused because
he thought they would think he had beat her up. Appellant eventually relented and took Triplett
to the VA hospital but he dropped her off about one hundred yards from the entrance. The
medical records and photographs taken at the hospital reflect that Triplett had a broken rib and
multiple bruises, including bruises on her neck.
Appellant testified that he is a Vietnam veteran and he has been 100 percent disabled
since 1981. He has had two spinal laminectomy surgeries and his knees are held together by
screws. Additionally, his left thumb has been “totally reconstructed.” He was convicted of
aggravated assault with a deadly weapon and attempted murder in 2000. Appellant recalled that
when he left the apartment on June 1, 2009, Triplett was going to do the dishes and start looking
for a job because she had recently been fired. She needed to work because he had recently
moved into a more expensive apartment to accommodate her. When he returned to the
apartment from a doctor’s appointment at about 12:15 p.m., he noticed that the dishes had not
been done and Triplett was not home. She had not opened the newspaper to the classified
section, so he called her and asked where she was. Based on what she told him, Appellant
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decided Triplett needed to move out and he would move back to the smaller apartment because
she did not want to work. Appellant got some boxes out of the storage shed and told Triplett in a
text that she needed to pack up her belongings and leave. When Triplett returned, Appellant saw
that she was intoxicated. He told her that she could not even sit down and she needed to just
pack up and leave. Appellant denied hitting or punching Triplett. He denied kicking her and
said that if he jumped it would “crack the bones” in his leg and back. Despite these denials, he
admittedly took Triplett to the hospital when she asked. He dropped her off outside of the gate
to Fort Bliss because he did not have auto insurance and could not drive on base without it.
The jury found Appellant not guilty of aggravated assault (Count I) but found him guilty
of family violence assault (Count II). Appellant elected that his punishment would be
determined by the trial court. Appellant entered a plea of true to the enhancement paragraph and
the trial court found Appellant had previously been convicted of attempted murder. The court
assessed Appellant’s punishment at imprisonment for a term of twelve years.
PROSECUTORIAL MISCONDUCT
Appellant raises three issues related to alleged prosecutorial misconduct that occurred
when the prosecutor asked Appellant whether he had been convicted of attempted murder for
shooting his ex-wife. Appellant had previously been convicted of attempted murder and
aggravated assault with a deadly weapon (firearm). Prior to trial, the trial court granted
Appellant’s motion in limine and required the State to approach the bench before attempting to
go into the facts underlying Appellant’s prior convictions. Appellant testified during the guilt-
innocence phase and admitted he had been convicted on October 25, 2000 of aggravated assault
with a deadly weapon and attempted murder. During cross-examination by the State, Appellant
testified that he did not have problems with his temper. The prosecutor then asked him: “And
you pled guilty to attempted murder for having shot your ex-wife?” The trial court sustained
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Appellant’s objection that the State could not question him about the underlying facts of the prior
conviction and the court instructed the jury to disregard the prosecutor’s question. The court
denied Appellant’s request for a mistrial. Later during cross-examination, the prosecutor asked
Appellant whether, despite having all of his injuries, he had the physical capability to commit the
offenses of aggravated assault and attempted murder, and Appellant admitted that he did.
Denial of Motion for Mistrial
We will begin with Issue Three which is related to the trial court’s denial of Appellant’s
motion for mistrial. We review a trial court’s ruling on a motion for mistrial for an abuse of
discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004); Wead v. State, 129
S.W.3d 126, 129 (Tex.Crim.App. 2004). A mistrial is the trial court’s remedy for improper
conduct that is so prejudicial and incurable that expenditure of further time and expense would
be wasteful and futile. Hawkins, 135 S.W.3d at 77; Ladd v. State, 3 S.W.3d 547, 567
(Tex.Crim.App. 1999). The determination of whether a given error necessitates a mistrial must
be made by examining the particular facts of the case. Ladd, 3 S.W.3d at 567. To determine
whether a trial court abused its discretion in denying a defendant’s motion for a mistrial, we
consider three factors: (1) the severity of the misconduct; (2) the measures adopted to cure the
misconduct (the efficacy of any cautionary instruction by the trial court); and (3) the certainty of
conviction absent the misconduct (the strength of the evidence supporting the conviction).
Hawkins, 135 S.W.3d at 77.
Looking first at the severity of the misconduct, it is undisputed that the prosecutor
confused the facts of the two prior convictions when he asked Appellant whether he had pled
guilty to attempted murder for shooting his ex-wife. The aggravated assault conviction involved
a firearm but the attempted murder conviction did not. The judgment of conviction reflects that
the court made an affirmative finding that Appellant’s hands were deadly weapons.
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Consequently, the prosecutor’s question was based on inaccurate facts. We do not necessarily
agree that the prosecutor’s attempt to go into the underlying facts of the conviction was improper
because the details of the prior attempted murder conviction might have been admissible to rebut
Appellant’s defense that he was physically unable to assault Triplett. The trial court overruled
Appellant’s objections and permitted the State to cross-examine Appellant generally on this
matter but the prosecutor did not attempt to go into the facts of the prior convictions. Because
that theory of admissibility was not fully developed at trial, we will assume for the sake of
argument that the prosecutor’s attempt to go into the details of the prior conviction was improper
impeachment. The prosecutor could, however, properly ask Appellant whether he had been
convicted of attempted murder on October 25, 2000 in the 41st District Court. The prosecutor
asked the improper portion of the question only once. We conclude that the prejudicial effect of
the question was slight.
The trial court promptly instructed the jury to disregard the prosecutor’s question. In the
absence of anything in the record leading us to conclude that the jury did not or could not obey
the trial court’s instruction, we will presume that jury followed the trial court’s instruction. See
Gamboa v. State, 296 S.W.3d 574, 580 (Tex.Crim.App. 2009)(a reviewing court generally
considers instructions given to the jury to be sufficient to remedy most improprieties that occur
during a trial and presumes that a jury will follow the trial court’s instructions).
Finally, with regard to the strength of the evidence supporting Appellant’s conviction, the
jury had to decide the case based on the competing testimony of Triplett and Appellant.
Triplett’s description of the assault is corroborated by medical evidence and photographs. While
Appellant claimed he did not have a temper and did not have the physical ability to assault
Triplett, the State properly impeached Appellant with evidence he had previously been convicted
of two violent crimes, attempted murder and aggravated assault.
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A mistrial is reserved for those rare circumstances when the objectionable action was so
emotionally inflammatory that curative instructions are not likely to prevent the jury from being
unfairly prejudiced against the defendant. Young v. State, 137 S.W.3d 65, 71 (Tex.Crim.App.
2004). We conclude that the improper portion of the prosecutor’s question was not so
inflammatory that the trial court’s instruction to disregard would have been ineffective in
preventing unfair prejudice. Having found no abuse of discretion, we overrule Issue Three.
Denial of Motion for New Trial
In Issues One and Two, Appellant contends that the trial court erred by denying his
motion for new trial based on prosecutorial misconduct and violation of the order in limine.
These issues relate to the same facts as in Issue Three.
Appellant filed a motion for new trial raising the issue of prosecutorial misconduct based
on the prosecutor attempting to elicit details about the attempted murder conviction during cross-
examination. At the hearing, the prosecutor admitted he should have approached the bench
before asking Appellant any details about the attempted murder conviction. The trial court
denied the motion for new trial.
We review the trial court’s denial of a motion for new trial for an abuse of discretion.
Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App. 2007). We view the evidence in the light
most favorable to the trial court’s ruling and uphold the ruling if it falls within the zone of
reasonable disagreement. Webb, 232 S.W.3d at 112. Further, we do not substitute our judgment
for that of the trial court, but rather we decide whether the trial court’s decision was arbitrary or
unreasonable. Id.
We examine claims of prosecutorial misconduct on a case-by-case basis. Stahl v. State,
749 S.W.2d 826, 830 (Tex.Crim.App. 1988); Perkins v. State, 902 S.W.2d 88, 96 (Tex.App.--
El Paso 1995, no pet.). Prosecutorial misconduct has been found where: (1) the prosecutor’s
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actions deliberately violated an express court order; (2) where the prosecutor’s misconduct was
so blatant as to border on being contumacious; and (3) where the prosecutor asked a question
which was clearly calculated to inflame the minds of the jury and was of such a character so as to
suggest the impossibility of withdrawing the impression produced. See Stahl, 749 S.W.2d at
831; Perkins, 902 S.W.2d at 96.
Appellant’s claim is based on a single violation of the order in limine. There is no
evidence in the record that the prosecutor deliberately violated the order to elicit inadmissible
evidence or that his conduct was so blatant that it bordered on being contumacious. Finally, as
we have already discussed, the prosecutor’s question is not so inflammatory that the trial court’s
prompt instruction could not have cured any prejudice caused by it. Accordingly, the trial court
did not abuse its discretion by denying the motion for new trial. We overrule Issues One and
Two. Having overruled all issues for review, we affirm the judgment of the trial court.
January 16, 2012 __________________________________________
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, J., and Chew, C.J. (Senior)
Chew, C.J. (Senior), sitting by assignment
(Do Not Publish)
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