Mahmod Suleiman Qalawi v. State ( 2015 )

NUMBER 13-14-00033-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MAHMOD SULEIMAN QALAWI, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 40th District Court
of Ellis County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Rodriguez
Appellant Mahmod Suleiman Qalawi (Qalawi) appeals from a judgment rendered
by the 40th District Court of Ellis County, Texas. 1 A jury found Qalawi guilty of
1 This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).
aggravated assault causing serious bodily injury, with a family violence deadly weapon
enhancement, and sentenced him to prison for five years. See TEX. PENAL CODE ANN.
§ 22.02 (West, Westlaw through 2013 3d C.S.).
Qalawi raises five issues on appeal:2 (1) the evidence was legally insufficient to
support a conviction for aggravated assault; (2) the trial court erred in failing to grant
Qalawi’s request for a lesser-included offense instruction; (3) the trial court erred in
admitting extrinsic evidence to impeach the complaining witness; (4) the trial court erred
in denying Qalawi’s motion for mistrial; and (5) the cumulative harm of trial errors denied
Qalawi a fair trial. We affirm.
I. BACKGROUND
On September 30, 2011, officers were dispatched to a shooting in Ellis County,
Texas. Qalawi placed the initial 9-1-1 call. The dispatcher, Ashley Novian, testified
Qalawi was very “excited” stating “his wife had a gunshot” and she needed an ambulance.
Novian initially dispatched officers to the scene to investigate an “accidental shooting.”
Lee Jones, a reserve police officer for the Venus Police Department, was the first
responder at the scene. Jones testified that when he arrived he attempted to have
Qalawi exit the residence and come to him. Qalawi yelled at Jones to “come in” and to
“come help [his] wife.” Jones also testified that Qalawi asked Jones to “shoot [him],” and
at one point Qalawi told Jones that Dora shot herself in the stomach. Jones waited for
back-up to arrive before entering the premises, as is standard operating procedure with
an unsecured premises. When additional police arrived, Jones again instructed Qalawi
2 We have reordered Qalawi’s issues pursuant to Texas Rule of Appellate Procedure 47.1. See
TEX. R. APP. P. 47.1.
2
to “come to [him],” and Qalawi complied. For the officers’ safety, Jones handcuffed
Qalawi and patted him down. During the pat down Jones found a 40-caliber Glock
magazine in Qalawi’s front left pocket. Jones secured Qalawi in the patrol car and
entered the residence to search for possible victims.
Jones testified that when he entered the residence, he observed a female lying on
the ground with a gunshot wound to her abdomen. After securing the residence, Jones
applied emergency aid and determined that the female was Qalawi’s wife, Dora. Jones
asked Dora who shot her. Dora stated she “could not say” who shot her. Jones then
asked “why he had shot [her]”—to which Dora replied that “he was mad.”
Robert Dennis and his girlfriend Erica Engleman were staying with the Qalawis in
September 2011. Engleman testified that Qalawi was upset and had fought with Dora
on the evening of the shooting because Dora “messed up” the cable service. Engleman
also testified that Qalawi had a gun in the waist of his pants that evening.
Dennis and Engleman were together in the residence but did not see the shooting
take place. Engelman testified that she heard Qalawi and Dora arguing right before she
heard the gunshot. Engleman then testified Dora said, “Mahmod, Mahmod, you shot
me.” Engleman fled from the house through a window while Dennis went to help the
Qalawies. Dennis testified that he heard Qalawi screaming “like he was scared” after
the gunshot. Dennis asked Qalawi what was going on, and Dennis testified that Qalawi
responded that he “shot his wife.” At some point that evening Qalawi also claimed that
Dennis shot Dora.
3
The police used a gunshot residue kit to take samples from Qalawi’s hands.3 The
test results from that kit contained particles that were characteristic of primer gunshot
residue. When Qalawi was processed for booking, the booking officer found a bullet in
Qalawi’s pocket. A week after the shooting, a 40-caliber Glock pistol was found in the
residence’s laundry room closet.
Dora had a “through and through” gunshot wound to her abdomen with injuries to
her large and small intestines. She had significant blood loss and was listed in critical
condition when she arrived at the hospital. Dora underwent five surgeries to repair her
damaged intestines.
Four days after the shooting, Detective Rick White visited Dora in the hospital to
obtain her statement. Dora also testified at trial. During the trial Dora testified that she
was confused about what occurred on the day of the shooting because she was on
medication and did not know what was true and what was a dream. Dora testified that
she was standing in the laundry room when she felt pain in her stomach. She did not
see Qalawi with a gun but testified that “in my dream I saw he had a gun.” She denied
Engleman’s statement that she said “Mahmod, you shot me,” but did recall someone
telling her to “tell them that you shot yourself.” She did not know if Qalawi told her to say
she shot herself or if she only imagined hearing the voice. When asked what Qalawi
now says about the shooting, Dora testified that he “always stated that it was an accident,
that he didn’t mean to hurt me.” Dora’s testimony at trial differed from the statement she
gave to Detective White.
3 The police also took gunshot residue samples from Dennis and Engleman. Those samples were
not tested.
4
At trial, the State played a portion of Dora’s recorded statement to Detective White
for impeachment purposes over Qalawi’s objection. The trial court gave a verbal limiting
instruction that the audio statement was to be considered for impeachment purposes only.
On the recording, Dora told Detective White that Qalawi shot her, he told her to say she
shot herself, and “he thought he was too much a man who could kill anyone he wanted
to kill.”
In its closing argument the State referenced Dora’s statement as evidence of
Qalawi’s guilt: Qalawi’s counsel objected, requested a jury instruction from the court
ordering the jury to disregard the statement, and moved for a mistrial. The court did not
grant the mistrial, nor did it provide a curative instruction to the jury at that time.4 The
court gave a written limiting instruction in the charge. The jury returned a guilty verdict,
and the trial court sentenced Qalawi to five years in prison. This appeal followed.
II. LEGAL SUFFICIENCY CHALLENGE
By his fifth issue, Qalawi challenges the legal sufficiency of the evidence to support
his conviction for aggravated assault with a deadly weapon.
A. Standard of Review
Under the Jackson v. Virginia legal sufficiency standard of review, we view the
evidence in the light most favorable to the verdict and determine whether any rational trier
of fact could have found the essential elements of the offense beyond a reasonable doubt.
See 443 U.S. 307, 318–19 (1979); see also Brooks v. State, 323 S.W.3d 893, 895 (Tex.
4 The trial court gave a limiting instruction when the evidence was played to the jury, and the jury
charge contained a written jury instruction regarding the limited use for which Dora’s recorded statement
could be considered.
5
Crim. App. 2010) (plurality op.) (stating that the “Jackson v. Virginia legal-sufficiency
standard is the only standard that a reviewing court should apply . . . .”). It is not
necessary that the evidence directly proves the defendant's guilt; circumstantial evidence
is as probative as direct evidence in establishing guilt. Carrizales v. State, 414 S.W.3d
737, 742 (Tex. Crim. App. 2013).
The trier of fact is the sole judge of the weight and credibility of the witnesses and
may believe all, none, or part of the testimony of any witness. DeLeon v. State, 937
S.W.2d 129, 131 (Tex. App.—Waco 1996, pet. ref’d). If inferences raised by the
evidence are in conflict, we presume the trier of fact resolved the conflict in favor of the
verdict, and we defer to that resolution. Murphy v. State, 4 S.W.3d 926, 928 (Tex. App.—
Waco 1999, pet. ref’d).
Legal sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997) (en banc). The hypothetically correct jury charge “sets out the
law, is authorized by the indictment, does not unnecessarily increase the State's burden
of proof or unnecessarily restrict the State's theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Id.
B. Discussion
The State bore the burden of proving each element of aggravated assault beyond
a reasonable doubt. See TEX. PENAL CODE ANN. §§ 22.01, .02 (West, Westlaw through
2013 3d C.S.). The State had to prove that Qalawi (1) intentionally, knowingly, or
recklessly (2) caused serious bodily injury to Dora (3) while using or exhibiting a firearm.
6
See id. The offense is a felony of the first degree if a deadly weapon is used to assault
a spouse. See id. at § 22.02(b)(1); TEX. FAM. CODE ANN. § 71.003 (West, Westlaw
through 2013 3d C.S.). Under the Texas Penal Code, a firearm is defined as a “deadly
weapon.” TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (West, Westlaw through 2013 3d C.S.)
On appeal, Qalawi does not challenge the legal sufficiency of a specific element
of the offense—instead he lodges a general sufficiency challenge to his conviction. We
will review the evidence of each element of the aggravated assault conviction in the light
most favorable to the verdict to determine whether any rational factfinder could have
found Qalawi guilty beyond a reasonable doubt. See Jackson, 443 U.S. at 318–19; see
also Brooks, 323 S.W.3d at 895.
Qalawi cited to Clark v. Procunier for the proposition that if the evidence viewed in
the light most favorable to the prosecution gives equal or nearly equal circumstantial
support to a theory of guilt and a theory of innocence—then the State did not meet its
burden of proof of beyond a reasonable doubt. See 755 F.2d 394, 396 (5th Cir. 1985).
Clark is not applicable. We will not disturb the jury’s finding unless the evidence was
legally insufficient to support the conviction on at least one essential element of the crime.
See Jackson, 443 U.S. at 318–19; Brooks, 323 S.W.3d at 895.
There is ample evidence, both direct and circumstantial, to support Qalawi’s
conviction. The following evidence was before the jury: (1) Dora was Qalawi’s wife;
(2) Dora and Qalawi were arguing immediately before the shooting; (3) Qalawi had a gun
on his person a short time before the shooting; (4) after the shooting, Dora cried out
“Mahmod, you shot me”; (5) Qalawi told Dennis that he shot Dora; (6) on the night of the
7
shooting, Qalawi gave the police inconsistent statements, alleging both that Dora shot
herself and that Dennis shot Dora; (7) Dora said “he” shot her because “he” was mad;
(8) Dora suffered serious bodily injury with a gunshot wound to her abdomen; (9) Qalawi
had a 40-caliber Glock magazine in his pocket when he was patted down at the residence
and a bullet in his pocket when he was arrested; (10) the gun found hidden in the laundry
room of Qalawi’s home was a 40-caliber Glock; and (11) Qalawi’s hands had particles
consistent with gunshot residue on them.
The jury, as the finder of fact, resolved any conflicts of facts, determined the weight
to give the evidence presented, and evaluated the credibility of the witnesses. See
Jackson, 443 U.S. 319; DeLeon, 937 S.W.2d at 131. The jury was presented with all of
the evidence at trial, and it determined that Qalawi was guilty of the offense of aggravated
assault beyond a reasonable doubt. We find that there was legally sufficient evidence
before the jury to find that Qalawi intentionally, knowingly, or recklessly shot Dora with a
firearm, that Dora was his wife, and that Dora suffered serious bodily injury beyond a
reasonable doubt. See Jackson, 443 U.S. at 318–19; Brooks, 323 S.W.3d at 895; see
also TEX. PENAL CODE ANN. §§ 22.01, .02.
We overrule Qalawi’s fifth issue.
III. EXCLUSION OF LESSER-INCLUDED OFFENSE INSTRUCTION
By his second issue, Qalawi contends that the trial court’s failure to submit an
instruction on the lesser-included offense of deadly conduct constituted reversible error.
He contends that the jury would have convicted him, if at all, on the lesser-included
offense if they were given the opportunity to do so.
8
A. Standard of Review
A claim of jury-charge error is governed by the procedures set forth in Almanza v.
State. 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc) (op. on reh'g), overruled
on other grounds by Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). We
must first determine whether the trial court erred in its refusal to submit the requested
instruction in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).
If error exists and the appellant properly objected at trial, reversal is required if “some
harm” resulted, i.e., if the error was “calculated to injure the rights of the defendant.” Id.
(quoting Almanza, 686 S.W.2d at 171). If the appellant failed to object, error must be
“fundamental,” and reversal will result only if the error was so egregious and created such
harm that the defendant “has not had a fair and impartial trial.” Id. (quoting Almanza,
686 S.W.2d at 171). Qalawi objected to the trial court's failure to submit an instruction
on the lesser-included offense of deadly conduct; thus, if error exists we will determine
whether some harm resulted. See Barrios, 283 S.W.3d at 350; Price v. State,
__S.W.3d__, 2015 WL 1743388, at *2 (Tex. Crim. App. 2015).
B. Applicable Law
Whether a lesser-included offense instruction should be given is determined on a
case-by-case basis and requires a two-step analysis. Rice v. State, 333 S.W.3d at 140,
144 (Tex. Crim. App. 2011); Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App.
2007); Bartholomew v. State, 871 S.W.2d 210, 212–13 (Tex. Crim. App. 1994) (en banc).
The first step requires us to ask whether the “requested charge is for a lesser-included
offense of the charged offense.” Rice, 333 S.W.3d at 144. The second step looks at
9
whether there was evidence admitted at trial that supports giving the lesser-included
instruction to the jury. Id.
In analyzing the first step, we look to the Texas Code of Criminal Procedure. The
code provides, in relevant part, that an offense is a lesser-included offense if “it is
established by proof of the same or less than all the facts required to establish the
commission of the offense charged.” See Rice, 333 S.W.3d at 144 (citing TEX. CODE
CRIM. PROC. ANN. art. 37.09(1) (West, Westlaw through 2013 3d C.S.)). This is a
question of law, and it does not depend on the evidence produced at trial. Id.
The court of criminal appeals adopted the “cognate-pleadings approach” for this
step. Id. We look at “the elements and the facts alleged in the charging instrument to
find lesser-included offenses.” Id.
An offense is a lesser-included offense of another offense . . . if the
indictment for the greater-inclusive offense either: 1) alleges all of the
elements of the lesser-included offense or 2) alleges elements plus facts
(including descriptive averments, such as non-statutory manner and
means, that are alleged for purposes of providing notice) from which all of
the elements of the lesser-included offense may be deduced.
Id. (citing Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g));
see Hall, 225 S.W.3d at 535.
The second step of the analysis asks if there is some evidence in the record to
permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-
included offense. Id. at 145; Guzman v. State, 188 S.W.3d 185, 188–89 (Tex. Crim. App.
2006); Hall, 225 S.W.3d at 536. The second prong requires an examination of the record
to determine if the lesser included offense was raised by the evidence, whether produced
by the State or the defendant and whether it be strong, weak, unimpeached, or
10
contradicted. See Ford v. State, 38 S.W.3d 836, 842 (Tex. App.—Houston [14th Dist.]
2001, pet. ref’d). “[I]t is not enough that the jury may disbelieve crucial evidence
pertaining to the greater offense; there must be some evidence directly germane to a
lesser included offense for the factfinder to consider before an instruction on a lesser
included offense is warranted.” Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App.
1994) (en banc). The evidence must establish the lesser-included offense as “a valid,
rational alternative to the charged offense.” Rice, 333 S.W.3d at 145 (citing Hall, 225
S.W.3d at 536).
B. Discussion
The first step of the lesser-included offense analysis requires us to determine if
deadly conduct is a lesser-included offense of aggravated assault, as charged. See id.
at 144. We do not consider the evidence that was presented at trial; rather we consider
only the statutory elements of aggravated assault with a deadly weapon as they were
modified by the particular allegations in the indictment. See id. The indictment read as
follows:
[Qalawi] did then and there intentionally, or knowingly, or recklessly cause
serious bodily injury to Dora Qalawi by shooting her in the stomach, and the
defendant did then and there use or exhibit a deadly weapon, to-wit: a
firearm, during the commission of said assault.
We then compare the elements in the indictment with the statutory elements of deadly
conduct, the proposed lesser-included offense. Those elements are: (1) a person;
(2) recklessly engages in conduct; (3) that places the complainant in imminent danger of
serious bodily injury. TEX. PENAL CODE ANN. § 22.05(a) (West, Westlaw through 2013 3d
C.S.).
11
Under article 37.09(1), we ask whether the elements of the lesser offense are
established by proof of the same or less than all the facts required to establish the
commission of the offense charged. Rice, 333 S.W.3d at 145; TEX. CODE CRIM. PROC.
ANN. art. 37.09(1). Without considering the facts of this case, we agree with Qalawi that
one who causes bodily injury with a deadly weapon necessarily places the complainant
in imminent danger of serious bodily injury. See Ford v. State, 38 S.W.3d 836, 844 (Tex.
App.—Houston [14th Dist.] 2001, pet. ref’d). We therefore determine in this case that
the elements of aggravated assault causing serious bodily injury, as alleged in the
indictment, include the elements of deadly conduct.
We now address the second prong of the Hall analysis. See 225 S.W.3d at 536.
We look to the entire record to determine whether there is some evidence that would
permit a jury to rationally find that, if Qalawi is guilty, he is guilty only of the lesser-included
offense of deadly conduct. See Rice, 333 S.W.3d at 145; Guzman, 188 S.W.3d at 188–
89; Hall, 225 S.W.3d at 536; Ford, 38 S.W.3d at 842. The evidence must establish
deadly conduct as “a valid, rational alternative to the charged offense.” Rice, 333 S.W.3d
at 145 (citing Hall, 225 S.W.3d at 536).
The only applicable difference between the lesser-included offense and the
charged offense focuses on injury suffered by Dora. 5 See TEX. PENAL CODE ANN.
§§ 22.02, .05. Aggravated assault as alleged is a “result-oriented” offense while deadly
5 Qalawi argues that there is evidence that he acted recklessly (as opposed to knowingly or
intentionally) as support for his contention that he was entitled to a lesser included offense instruction. See
TEX. CODE CRIM. PROC. ANN. art. 37.09(3) (West, Westlaw through 2013 3d C.S.). In this case the
indictment for aggravated assault included the reckless mens rea—therefore Qalawi’s argument on that
ground has no merit.
12
conduct is a “conduct-oriented” offense.6 See Ford, 38 S.W.3d at 844–45 (“In a result-
oriented offense, it is not enough for the State to prove that the defendant engaged in
conduct with the requisite criminal intent, the State must also prove that the appellant
caused the result with the requisite criminal intent.”) (emphasis added); see also TEX.
PENAL CODE ANN. § 22.02.
There is no evidence in the record that if Qalawi was guilty, he was guilty only of
deadly conduct. Rice, 333 S.W.3d at 145; Guzman, 188 S.W.3d at 188–89; Hall, 225
S.W.3d at 536. The evidence did not establish deadly conduct as “a valid, rational
alternative to aggravated assault” because there was no evidence that Qalawi merely
placed Dora in “imminent danger of serious bodily injury” as opposed to actually causing
Dora serious bodily injury. See Rice, 333 S.W.3d at 145. That Dora actually suffered
serious bodily injury was not disputed at trial or on appeal. Dora’s treating surgeon
testified without objection that Dora would have died without emergency surgery and that
she lost her entire “volume of blood” during the first surgery. Because there was no
evidence directly germane to the lesser-included offense of deadly conduct for the
factfinder to consider, an instruction on the lesser offense was not warranted. See id.;
Bignall, 877 S.W.2d at 24. The trial court did not abuse its discretion denying Qalawi’s
requested jury instruction on the lesser-included offense of deadly conduct.
We overrule Qalawi’s second issue.
6 Aggravated assault as charged is a “result-oriented” offense because an element of the crime
requires the State to prove beyond a reasonable doubt that Dora actually suffered serious bodily injury.
Deadly conduct is a “conduct-oriented” offense because it requires only that the State prove that Qalawi’s
actions placed Dora in imminent danger of serious bodily injury. See Ford v. State, 38 S.W.3d 836, 842–
45 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
13
IV. ADMISSION OF IMPEACHMENT EVIDENCE
By his third issue, Qalawi contends that the trial court abused its discretion in
allowing the State to admit a prior inconsistent statement to impeach Dora, the
complaining witness. It is Qalawi’s position that the statement was not properly used to
impeach Dora because the State did not lay a proper predicate in compliance with Texas
Rule of Evidence 613(a). See TEX. R. EVID. 613(a).
A. Standard of Review and Applicable Law
A trial court’s decision to admit or exclude evidence is reviewed under an abuse of
discretion standard. Osbourne v. State, 92 S.W.3d 531, 537–38 (Tex. Crim. App. 2002).
If a trial court’s decision to admit evidence is within the zone of reasonable disagreement
we will defer to the trial court’s ruling. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim.
App. 2002).
Texas Rule of Evidence 613(a) provides the context in which a witness may be
impeached with a prior inconsistent statement. See id. When a witness is examined
about a prior statement, rule 613(a) requires that the witness be told: (1) the contents of
the statement; (2) the time and place the statement was taken; and (3) the identity of the
individual to whom the statement was made. TEX. R. EVID. 613(a). The witness must
be given an opportunity to explain or deny the statement before it is admitted to the jury.
Id. If the witness unequivocally admits having made the statement, extrinsic evidence of
the same shall not be admitted. Id. “If the admission is partial, qualified, or otherwise
equivocal, or if the witness claims to not remember making the prior statement, the prior
statement is admissible for impeachment purposes.” Ruth v. State, 167 S.W.3d 560,
14
566 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (citing McGary v. State, 750 S.W.2d
782, 786 & n.3 (Tex. Crim. App. 1988)).
B. Discussion
Four days after the shooting, Detective White visited Dora in the hospital and took
her recorded statement. In that statement Dora stated, among other things, that Qalawi
shot her and that he had a gun. At trial, Dora testified that she did not know who shot
her and that she did not see Qalawi with a gun. The State allowed Dora to hear her prior
statement, told her when and where the statement was recorded, and identified Detective
White as the individual that took the statement. Dora stated that she did not remember
making the statements included on the recording but acknowledged that the voice on the
recording was hers.
Qalawi contends that the trial court erred in admitting Dora’s prior inconsistent
statement because the State did not lay the proper predicate. Specifically, Qalawi
contends that Dora’s trial testimony was not inconsistent with the prior recorded statement
and that she did not unequivocally deny making the statement.
We conclude that Dora’s testimony that she did not know who shot her and that
she did not see Qalawi with a gun was inconsistent from her recorded statement in which
she identified Qalawi as the shooter and stated that he did have a gun. We further
conclude that Dora’s statement that she “did not remember” was not an unequivocal
admission pursuant to rule 613(a). See TEX. R. EVID. 613(a); Ruth, 167 S.W.3d at 556
(stating that if the witness claims not to remember making the prior statement, it is
admissible for impeachment purposes). Admitting evidence of the prior inconsistent
15
statement was reasonable, and the trial court did not abuse its discretion in admitting the
statement for the limited purpose of impeachment. See Wheeler, 67 S.W.3d at 888.
We overrule Qalawi’s third issue.
V. MISTRIAL
By his fourth issue, Qalawi contends that the trial court abused its discretion in
denying Qalawi’s motion for mistrial. It is Qalawi’s position that a mistrial was warranted
when the State violated the trial court’s limiting instruction during its closing argument by
referencing evidence admitted only for impeachment purposes.
A. Standard of Review and Applicable Law
An appellate court reviews a trial court's ruling on a motion for mistrial using an
abuse-of-discretion standard. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App.
2004). We view the evidence in the light most favorable to the trial court's ruling and
uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id.
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. Thus, a trial court abuses
its discretion in denying a motion for mistrial only when no reasonable view of the record
could support the trial court's ruling. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim.
App. 2004), superseded in part on other grounds as recognized by State v. Herndon, 215
S.W.3d 901, 905 n.5 (Tex. Crim. App. 2007).
A mistrial is an appropriate remedy for improper jury argument in “extreme
circumstances” for a narrow class of “highly prejudicial and incurable errors.” Hawkins v.
State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc). A mistrial halts trial
16
proceedings when error is so prejudicial that expenditure of further time and expense
would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.
1999). Whether an error requires a mistrial must be determined by the particular facts of
the case. Id. The law favors that the trial continue, if possible. Bauder v. State, 921
S.W.2d 696, 698 (Tex. Crim. App. 1996) (en banc), overruled on other grounds by Ex
Parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007).
The law provides for, and presumes, a fair trial free from improper argument by the
prosecuting attorney. Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990) (en
banc). Improper jury argument is non-constitutional error which must affect a
defendant’s substantial rights to constitute reversible error. See TEX. R. APP. P. 44.2(b);
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (en banc). Rule 44.2(b)
provides that: “[a]ny other error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b). A substantial right is
affected when the error has 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). The
Texas Court of Criminal Appeals recognizes three factors to balance when evaluating
improper argument: (1) the severity of the misconduct, (2) measures adopted to cure
the misconduct, and (3) the certainty of conviction absent the misconduct. Hawkins, 135
S.W.3d at 75; Mosley, 983 S.W.2d at 259.
B. Discussion
During the State’s closing argument, the prosecutor referenced one of the prior
inconsistent statements the State used to impeach Dora. The prosecutor stated that
17
“you heard Dora Qalawi tell you herself he’s a man that fixed problems with bullets. He
thinks he’s too much man. He could kill anything.” The State referenced the statement
as substantive evidence of the case—contrary to the limiting instruction provided by the
court. Qalawi’s counsel objected to the State’s argument and requested an additional
limiting instruction be given to the jury. The trial court overruled Qalawi’s objection and
denied his request for an oral jury instruction.7 Qalawi then moved for a mistrial which
the trial court denied. We agree with Qalawi that the State improperly referenced Dora’s
prior inconsistent statement as evidence of guilt because it was admitted only for
impeachment purposes. However, the only issue properly before us is whether the trial
court abused its discretion in denying Qalawi’s motion for mistrial.8
The Texas Court of Criminal Appeals has stated that “the question of whether a
mistrial should have been granted involves most, if not all, of the same considerations
that attend a harm analysis” in the context of improper jury argument. See Hawkins, 135
at 77. The trial court essentially “conducts an appellate function: determining whether
improper conduct is so harmful that the case must be redone.” Id. The harm analysis
is conducted in light of the trial court's curative instruction.9 Id.
The Texas Court of Criminal Appeals has found that a mistrial is only required in
extreme cases where the prejudice is incurable. Id. In Hawkins, the court of criminal
7The jury was given a written instruction in the charge that the evidence referenced above was to
be used solely for purposes of weighing credibility and not as substantive evidence of guilt.
8 Qalawi does not complain on appeal that the trial court erred in overruling his objection or denying
his request for a jury instruction.
9 The trial court did not provide a curative instruction during the State’s closing argument. It did
however provide a verbal limiting instruction to the jury when the impeachment evidence came in, and
provided a second written limiting instruction in the jury charge.
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appeals determined that application of the Mosley factors was appropriate in the mistrial
context. Id. The Court held as follows:
The federal courts have recognized the interplay between a trial court's
curative actions and an appellate court's harm analysis in the argument
context. This Court has joined that recognition by applying federal
precedent in connection with argument error that is analyzed under Rule
44.2(b). Employing a harm analysis formula in evaluating the trial court's
ruling on a motion for mistrial seems especially appropriate in the argument
context, where misconduct occurs near the end of the case—giving the trial
court an appellate-like “bird's eye” view of the situation. We therefore
agree that the Mosley factors should be used to evaluate whether the trial
court abused its discretion in denying a mistrial for improper argument, at
least in cases like this one, in which constitutional rights are not implicated.
Id.
We will therefore review the Mosley factors to determine if the trial court abused
its discretion in denying Qalawi’s motion for mistrial. See id. The first factor requires us
to look to “the severity of the misconduct” in the State’s closing argument. See id. We
do not find that the State’s reference to evidence that had been admitted pursuant to a
limiting instruction to be “severe misconduct.” See id. The evidence was neither new
to the jury nor did it involve facts outside of the record. See Borjan, 787 S.W.2d at 57.
Further, the State did not emphasize the impeachment evidence in its closing: only one
of the many comments Dora made was mentioned, and it was only mentioned once. The
improper comment was a very small portion of the State’s entire argument. See Martinez
v. State, 17 S.W.3d 677, 693 (Tex. Crim. App. 2000) (en banc).
The second Mosley factor looks at measures adopted to cure the misconduct. Id.
The trial court did not provide a curative instruction to the jury at the time the statement
was made. See id. It did, however, provide both verbal and written instructions to the
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jury regarding the limited purpose for which that evidence was to be used. When the
State admitted the impeachment evidence the trial court provided the following
instruction: “Members of the jury, the audio recording is being offered into evidence for
the purpose of attempting to impeach the in court testimony of Dora Qalawi. It is being
offered for this purpose and no other purpose.” The charge of the court contained a
similar limiting instruction. It stated: “In this case, the audio recording between Dora
Qalawi and Investigator White was offered and admitted into evidence, and you are
instructed that you may consider it for impeachment purposes only as a prior inconsistent
statement of Dora Qalawi.” While it would have been appropriate for the trial court to
instruct the jury to disregard the State’s comment, we conclude that the instructions
provided by the court were sufficient to instruct the jury with regard to the limited evidence.
See Taylor v. State, 332 S.W.3d 483, 493 (Tex. Crim. App. 2011) (“[W]e presume that
the jury understood and followed the court’s charges absent evidence to the contrary.”).
In analyzing the third Mosley factor, we review the certainty of conviction absent
the misconduct. See Hawkins, 135 S.W.3d at 77. The third factor weighs heavily in the
State’s favor. As addressed above in our analysis of Qalawi’s legal sufficiency issue,
there was ample evidence in the record to support the conviction without considering
Dora’s statement. There were four people in the residence at the time of the shooting:
Dennis and Engleman were together in a separate room when the shooting occurred and
Dora was shot—leaving only Qalawi as the suspected shooter. There was testimony
that Qalawi had a gun prior to the shooting. Dennis testified that Qalawi stated that he
shot his wife. Finally, Qalawi made numerous inconsistent statements to the officers and
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dispatchers, stating: (1) there was an accidental shooting; (2) Dora shot herself; and (3)
Dennis shot Dora.10 We determine, based on the evidence in the record, that the State’s
misconduct did not affect the jury’s determination of guilt.
Given the nature of the State’s misconduct and the strength of the evidence
supporting Qalawi’s conviction, our review of the record supports the trial court’s ruling.
See Charles, 146 S.W.3d at 208. The trial court did not abuse its discretion in denying
Qalawi’s motion for mistrial. See Wead, 129 S.W.3d at 129.
We overrule Qalawi’s fourth issue.
VI. CUMULATIVE ERROR
By Qalawi’s first issue, he contends that “cumulative harm of errors” throughout
his trial merits a reversal of his conviction. Qalawi’s argument fails because we have
determined that the trial court did not commit error or abuse its discretion. See
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (noting that there is
“no authority holding that non-errors may in their cumulative effect cause error”).
We overrule Qalawi’s first issue.
VII. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
11th day of June, 2015.
10 Dora testified that she did not shoot herself, and Dennis testified that he did not shoot Dora.
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