Michael Hanley Penix v. State ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00012-CR
MICHAEL HANLEY PENIX,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2015-2036-C2
MEMORANDUM OPINION
Appellant Michael Hanley Penix entered a plea of guilty to the murder of his wife.
After electing to have the jury assess punishment, Penix was sentenced to ninety-nine
years’ incarceration. In his present appeal, Penix raises one issue—the prosecutor made
an improper closing argument. We will affirm.
Background
The evidence introduced at trial established that Penix murdered his wife,
Rebecca, on the evening of September 12, 2015. Penix emptied his five-shot revolver into
Rebecca’s body while she lay helpless on the bedroom floor with her hands raised.
During closing argument, the prosecutor stated: “Timothy McVeigh was an Eagle Scout.
He served his country. He deserved to die.” Defense counsel made a prompt objection,
which the trial court sustained. Defense counsel then moved for a mistrial, which the
trial court denied. Defense counsel then requested that the trial court instruct the jury to
disregard the prosecutor’s remark and again moved for a mistrial. The trial court
instructed the jury, “Instruct the jury to disregard the last comment of counsel for the
State” and denied the second motion for a mistrial.
Analysis
Penix asserts as error the prosecutor’s argument to the jury. The appropriate focus,
however, is whether the trial court abused its discretion in denying Penix’s motion for
mistrial. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). We uphold
the trial court’s denial of a motion for mistrial if it was within the zone of reasonable
disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). When a trial
court sustains an objection to an improper jury argument and instructs the jury to
disregard the argument, but denies a motion for mistrial, as here, we assume without
deciding that the argument was improper and look only to whether the trial court abused
its discretion when it denied the motion for mistral. See Hawkins, 135 S.W.3d at 76-77.
[T]he question of whether a mistrial should have been granted involves
most, if not all, of the same considerations that attend a harm analysis. A
mistrial is the trial court's remedy for improper conduct that is “so
prejudicial that expenditure of further time and expense would be wasteful
and futile.” In effect, the trial court conducts an appellate function:
determining whether improper conduct is so harmful that the case must be
redone.
Penix v. State Page 2
Hawkins, 135 S.W.3d at 77 (footnoted citation omitted). Thus, the appropriate test for
evaluating whether the trial court abused its discretion in overruling a motion for mistrial
is a tailored version of the test originally set out in Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998), a harm analysis case. Id. The Mosley factors that we consider in
determining whether the trial court abused its discretion in denying a mistrial are: (1)
the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s
remarks), (2) any curative measures (the efficacy of any cautionary instruction by the
judge), and (3) the certainty of the punishment assessed absent the misconduct (the
likelihood of the same punishment being assessed). Id. Only in extreme circumstances,
where the prejudice is incurable, will a mistrial be required. Id.; see also Archie, 221 S.W.3d
at 699. Otherwise, when the prejudice is curable, an instruction by the court to disregard
eliminates the need for a mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).
The law generally presumes that a jury will follow the trial court’s instruction to
disregard. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009); see also
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Only offensive or flagrant
error will mandate reversal after a trial court gives an instruction to disregard. Phillips v.
State, 130 S.W.3d 343, 356 (Tex. App.—Houston [14th Dist. 2004), aff’d, 193 S.W.3d 904
(Tex. Crim. App. 2006); see also Williams v. State, 417 S.W.3d 162, 176 (Tex. App.—Houston
[1st Dist.] 2013, pet. ref’d). “[O]nly in the most egregious cases when there is an
‘extremely inflammatory statement’ is an instruction to disregard improper argument
considered an insufficient response by the trial court.” Moore v. State, 999 S.W.2d 385,
Penix v. State Page 3
405-06 (Tex. Crim. App. 1999) (quoting Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim.
App. 1988)).
Proper jury argument falls into four general categories: (1) summation of the
evidence; (2) reasonable deductions from the evidence; (3) answer to opposing counsel’s
arguments; and (4) plea for law enforcement. Gallo v. State, 239 S.W.3d 757, 767 (Tex.
Crim. App. 2007). A prosecutor cannot use closing argument to put 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); Gonzalez v. State, 115 S.W.3d 278, 284 (Tex. App.—Corpus
Christi 2003, pet. ref’d). Comparing a defendant or his acts to an infamous criminal is
considered “an improper and erroneous interjection of facts not in the record that is
harmful to the accused.” Gonzalez, 115 S.W.3d at 284-5. However, a prosecutor’s
reference to a notorious individual in closing argument that does not make a direct
comparison to the defendant is less likely to be found by the courts to be improper or
harmful to the defendant’s case. See Martinez v. State, No. 08-15-00124-CR, 2018 WL
3084147, at *8 (Tex. App.—El Paso June 22, 2018, no pet.) (mem. op., not designated for
publication);1 see also Primes v. State, 154 S.W.3d 813, 815 (Tex. App.—Fort Worth 2004,
no pet.) (trial court did not abuse its discretion in denying defendant’s motion for mistrial
where prosecutor responded to testimony of defendant’s family regarding their love for
defendant by commenting that “Ted Bundy’s mother loved him too,” as comment did
1
Under Rule 47.7(a) of the Rules of Appellate Procedure, unpublished memorandum opinions not
designated for publication have no precedential value but may be cited with the notation, “(not designated
for publication).” Unpublished memorandum opinions are persuasive rather than binding precedent that
the court may follow or reject. See Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
Penix v. State Page 4
not directly compare Bundy’s actions to those of defendant); Luna v. State, No. 08-13-
00151-CR, 2015 WL 4572276, at *6 (Tex. App.—El Paso July 29, 2015, pet. ref'd) (mem. op.,
not designated for publication) (trial court did not err in denying motion for mistrial
where prosecutor merely asked jury if they had heard of Bernie Madoff and made no
direct comparison of Madoff to defendant); see also Alford v. State, No. 05-98-00262-CR,
2000 WL 175115, at *6-7 (Tex. App.—Dallas Feb. 16, 2000, no pet.) (mem. op., not
designated for publication) (prosecutor’s statement that “Ted Bundy had a paper route
when he was a boy,” did not warrant reversal where made in response to defense
counsel’s argument that defendant was hard-working and was not meant to compare
Bundy’s conduct with that of defendant).
In determining whether a prosecutor’s reference to a notorious criminal was
improper, we must consider it in the context that it was made, examining the “entire
argument, not merely isolated sentences.” Robbins v. State, 145 S.W.3d 306, 314-15 (Tex.
App.—El Paso 2004, pet. ref’d); see also Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.
App. 1988). In closing argument, the defense attorneys argued that the murder was an
aberration, possibly caused by Penix’s use of Ambien and Xanax, that Penix was a low
risk as a repeat offender, and that the jury should not judge Penix solely on the basis of
the worst thing he had ever done. Immediately prior to the reference to Timothy
McVeigh, the prosecutor stated: “Defense counsel said, What’s the measure of a man?
Should we judge a man by the worse moment of his life?” Taken in context with the
defense argument, the prosecution’s reference to Timothy McVeigh was obviously a
Penix v. State Page 5
reference to the fact that people who commit bad acts can also commit good ones, but
those good acts should not excuse them from being punished appropriately. The
prosecutor did not directly compare Penix to Timothy McVeigh or his acts; therefore, the
one-time reference to Timothy McVeigh, when considered in the context of the trial and
the defense closing argument, was not so egregious that it could not be remedied by an
appropriate limiting instruction. As the Archie court noted, “Under the facts of this case,
we conclude that, in sustaining appellant’s objection and instructing the jury as it did, the
trial court sufficiently ameliorated any potential harm.” Archie, 221 S.W.3d at 700.
The Gonzalez case cited by Penix is readily distinguishable. See Gonzalez, 115
S.W.3d at 278. In closing argument, the prosecutor compared Gonzalez to Osama bin
Laden. After the trial court sustained an objection to those remarks, the prosecutor then
compared Gonzalez’s gang, the Mexican Mafia, to al Qaida. The Corpus Christi Court
found the remarks to be so egregious that the trial court’s limiting instruction could not
overcome the prejudice to Gonzalez, particularly in light of the fact that the trial was
conducted only seven months after 9/11, when those “vile and dastardly acts were
undoubtedly still fresh in the minds of the jurors.” Id. at 284. Timothy McVeigh’s “vile
and dastardly acts,” however, were committed in 1995, close to twenty years prior to
Penix’s trial. Unlike our sister court, we conclude that the prosecutor’s reference to
Timothy McVeigh was not “a blatant attempt to deprive appellant of a fair and impartial
trial.” Id. at 285.
Penix v. State Page 6
Finally, the record supports a conclusion that the jury was likely to assess the same
punishment in the absence of the prosecutor’s remarks. As noted, Penix shot Rebecca at
close range while she was lying helpless on the ground, as evidenced by the gunpowder
stippling on her face, hands, and forearms. There was no sign of a struggle in the
bedroom or the rest of the house. After the shooting, Penix called 9-1-1, stating “My wife
woke me up in the middle of the night, and I shot her.” He further stated, “My wife woke
me up and started arguing with me. I was asleep.” When the 9-1-1 operator asked what
happened next, Penix replied, “And she kept on arguing with me. I had a gun, and I shot
her.” He further said, “She kept arguing with me and trying to (unintelligible). She woke
me up.” The 9-1-1 operator connected Penix to the emergency medical services
dispatcher who gave Penix instructions on how to perform CPR. Penix was not
noticeably distressed during the 9-1-1 call, but remained calm and gave clear and lucid
responses to the dispatchers.
When the police arrived at Penix’s house, Penix was still on the phone with 9-1-1
and performing CPR on Rebecca. The officers who testified did not believe that Penix
was making an actual attempt at CPR because he was using only one hand, he was barely
pressing down, and his hand did not appear to be on her chest. Penix also had no blood
on him despite the large amount of blood around Rebecca’s body. Penix’s demeanor
remained calm and coherent when questioned by the police. The only strong emotion
Penix exhibited was in response to his dogs barking when the police forced entry into the
house. Penix also did not appear to the officers to be under the influence of any substance
that would have affected his mental capacity. Penix told officers that he drank a couple
Penix v. State Page 7
of beers earlier in the day, but he did not mention that he had taken any prescription
medication.
Penix told officers that he shot Rebecca when she woke him up, as if he acted in
reflex after she startled him. However, Rebecca’s body was found on the opposite side
of the bed from where Penix slept. In contrast to the statements Penix made to 9-1-1 and
to the police, Penix testified at trial that he did not remember much of what occurred the
evening Rebecca was murdered. He had no memory of retrieving the gun or firing it.
Penix testified that he also could not remember all of his conversations with 9-1-1 or the
police. Penix also showed no emotion regarding Rebecca’s death during his testimony.
The State introduced witnesses who testified to problems in the Penix marriage,
including at least one incident of domestic abuse. Penix admitted that the police had been
called after he put his hands around Rebecca’s neck, but Rebecca refused to press charges.
Penix attributed his actions on that occasion to a mixture of alcohol and medications,
remarkably similar to his explanation for Rebecca’s murder. Penix presented an expert
witness who testified that patients who took the drugs prescribed to Penix—Ambien and
Xanax--reported instances of memory loss, as well as aggression and other aberrant
behaviors. In rebuttal, the State presented the testimony of Penix’s treating physician
who testified that Penix had never reported any side effects from his prescriptions,
particularly any type of memory loss.
Considering the brutality of the murder, Penix’s emotionless response to Rebecca’s
death, his contradictory statements regarding the events surrounding the murder, and
his unsuccessful attempts to deflect responsibility for his actions, the record supports a
Penix v. State Page 8
conclusion that the jury would likely have returned the same verdict in the absence of the
prosecutor’s reference to Timothy McVeigh.
After application of the Mosley factors, we cannot say that the trial court abused its
discretion in denying the motion for mistrial. Accordingly, we overrule Appellant’s sole
issue and affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 26, 2018
Do not publish
[CRPM]
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