Justin Maurice Harris v. State ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00489-CR
NO. 09-14-00490-CR
NO. 09-14-00491-CR
NO. 09-14-00492-CR
NO. 09-14-00493-CR
NO. 09-14-00494-CR
____________________
JUSTIN MAURICE HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause Nos. 13-10-11058 CR (Counts 1, 2, 4)
& 14-02-02044 CR (Counts 1, 3, 5)
MEMORANDUM OPINION
Appellant, Justin Maurice Harris (Harris), was indicted for six counts of
aggravated robbery with a deadly weapon in Cause Number 13-10-11058-CR and
for six counts of aggravated robbery with a deadly weapon in Cause Number 14-
02-02044-CR, all first degree felony offenses. After his indictment but prior to
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trial, the State moved to dismiss Counts 3, 5, and 6 from Cause Number 13-10-
11058-CR, and Counts 2, 4, and 6 from Cause Number 14-02-02044-CR, leaving
three counts in each case. Harris waived his right to a jury trial, and he pleaded
guilty to all six remaining counts. Harris elected to have the trial court determine
his punishment.
The trial court accepted his pleas and found Harris guilty. After a bench trial
on punishment, the trial court assessed punishment at ninety-nine years of
confinement in the Texas Department of Criminal Justice, Institutional Division on
each count, with sentences to run concurrently. Harris filed notices of appeal. On
appeal Harris raises only one appellate issue. He contends that the trial court erred,
and thereby abused its discretion, in failing to grant Harris a mistrial after the State
elicited testimony from a complaining witness concerning the specific punishment
the complaint wanted the trial court to impose. We overrule his issue and affirm.
UNDERLYING FACTS
On October 4, 2013, and on October 11, 2013, the Montgomery County
Sheriff’s Department responded to 911 calls reporting the robbery of two different
McDonald’s fast food restaurant located on Woodlands Parkway. According to an
eyewitness who called 911 on October 4th, the suspects fled and fired shots toward
the eyewitness during the October 4th robbery. Spent shell casings were obtained
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from the scene of the first robbery, along with bullet fragments from a wall. A
sixteen-year-old employee who was working the front window testified at the
punishment hearing that a male jumped through the drive-through window of the
McDonald’s restaurant, aimed a pistol at her, and told her to show him where the
vault was.
During the punishment hearing, M.C. testified that he was working the
drive-through at a different McDonald’s restaurant on the evening of October 11,
2013, when a man wearing a brown hoodie “blasted” open the drive-through
window and pointed a gun at M.C.’s face. Two accomplices entered through the
window, and they demanded cash from the registers and the safe. M.C. stated that
he thought he was going to die and that he prayed for mercy. M.C.’s manager took
the assailants back to the safe, and M.C. fell to the ground because he thought he
was going to have a heart attack and he was very scared.
Detective Schmitt investigated the October 11th incident and prepared an
offense report and affidavit for a warrant of arrest. According to Schmitt’s
affidavit, at approximately 8:05 p.m. on October 11, 2013, two men entered the
restaurant though the drive-through window, took money from the safe and
registers in the store, and then exited and fled to a vehicle that was waiting. One of
the men was described by witnesses as having a distinctive hairstyle and having
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displayed a semi-automatic handgun that was silver and black with “an attachment
under the barrel of the gun.”
Detective Ansley with the Montgomery County Sheriff’s Office testified at
the punishment phase of the trial that he and other officers responded to the 911
call regarding the robbery that occurred on October 11, 2013. Upon responding to
the call, Ansley said they learned that three men had entered the restaurant through
the drive-through window, one of the men had a two-toned pistol, money was
taken, and the men fled. According to Detective Ansley, Harris was the suspect
who was carrying the gun during the October 11th robbery, and Harris hit one of
the employees with the gun. Ansley’s investigation included obtaining surveillance
video from the two restaurants. Based on his review of the October 11th incident,
Ansley and another detective determined that the October 11th robbery appeared
related to the October 4th robbery, in which the means of entry was also through a
drive-through window.
Harris was identified as a suspect and arrested by the Houston Police
Department (HPD) on an unrelated charge, and HPD recovered a firearm from
Harris that matched the description of the gun used in the robberies. The shell
casings collected from the October 4th robbery investigation also matched the gun.
One of the HPD officers notified the Montgomery County Sheriff that Harris had a
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tattoo on his leg that matched the tattoo on the leg of one of the assailants as
depicted in the surveillance video.
Officer Davis with the HPD, North Division Gang Unit, testified that Harris
is a confirmed member of a violent gang based in Houston. The gang is known to
have committed several aggravated robberies and aggravated assaults. Davis
testified that Harris was a suspect in several violent robberies around the Houston
area. According to Officer Davis, the members of the gang in question are active
on social media sites. Officer Davis identified posts and photos from Harris’
Facebook page and Twitter feed, wherein Harris identified himself using a gang
name and posted information about his criminal behavior, his association with a
gang, and pictures of himself with guns, money, and illegal drugs.
Harris complains on appeal specifically about a portion of the testimony
provided by M.C., a complaining witness to the October 11th robbery. Harris
contends that the trial court erred, and thereby abused its discretion, in failing to
grant Harris a mistrial after the State elicited testimony from a complaining witness
concerning the specific punishment the witness wanted the trial court to impose.
During the examination of the witness the following exchange occurred:
Q. [State’s Attorney]: Does it make you feel safe or unsafe to know
that [Harris] could be walking around the streets?
A. [Witness]: Unsafe.
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Q. [State’s Attorney]: What would make you feel safe?
[Defense Attorney]: Objection. This is an improper question, Your
Honor. It’s invading the province of the Court’s position to sentence
Mr. Harris.
THE COURT: I’ll allow him to answer that question.
Q. [State’s Attorney]: You can answer.
A. [Witness]: I would like to see life.
[Defense Attorney]: Objection, Your Honor. Move to strike and ask
the Court to disregard. It’s a specific question that he cannot -- he
cannot tell the Court a specific sentence that he wishes the Court to
apply.
THE COURT: Okay. Well, just rephrase your question, and we’ll
strike the answer.
...
[Defense counsel]: Your Honor, I have a motion to make. At this
point I’m going to move for a mistrial based on the witness blurting
out that he wants the Court to impose a life sentence, as if the jury was
in the box. Once that bell has been rang [sic] you can’t unring it.
Based on that, Your Honor, and the improper answer -- the
inappropriate answers the witness gave. I’m going to ask the Court to
move for a mistrial.
THE COURT: Well, the Court --
[Defense counsel]: I’m going to move for a mistrial.
THE COURT: -- the Court is in a different position than the jury, and
I can easily disregard it. So that’s denied.
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ANALYSIS
We review a trial court’s admission of evidence under an abuse of discretion
standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Moses
v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). During the punishment
hearing in a non-capital criminal case, “evidence may be offered by the [S]tate and
the defendant as to any matter the court deems relevant to sentencing, including
but not limited to . . . the circumstances of the offense for which he is being tried
. . . .” See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2014).
Accordingly, the trial court may admit into evidence any evidence it “‘deems
relevant to sentencing.’” Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App.
2008) (emphasis omitted) (quoting Tex. Code Crim. Proc. Ann. art. 37.07,
§ 3(a)(1)). The Legislature has expressly provided that evidence regarding the
“circumstances of the offense” will be relevant. The definition of “relevant
evidence” as applied under Rule 401 of the Texas Rules of Evidence “does not
readily apply to Article 37.07. What is ‘relevant’ to the punishment determination
is simply that which will assist the fact finder in deciding the appropriate sentence
in a particular case.” Id. (footnotes omitted); see also Hayden v. State, 296 S.W.3d
549, 552 (Tex. Crim. App. 2009) (“Evidence is relevant if it helps the factfinder
decide what sentence is appropriate for a particular defendant given the facts of the
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case.”). The Texas Court of Criminal Appeals has noted that during the
punishment phase, a victim is in a unique position to describe what happened and
to describe the impact the crime has had on the victim’s life and family. See Fryer
v. State, 68 S.W.3d 628, 630, 633 (Tex. Crim. App. 2002) (noting that “the crime
victim” is knowledgeable about the offense and may be allowed “to speak on the
issue of appropriate punishment.”); Garza v. State, No. 09-14-00173-CR, 2014 WL
6984333, at *3 (Tex. App.—Beaumont Dec. 10, 2014, no pet.) (mem. op., not
designated for publication). In his appellate brief, Harris cites to Sattiewhite v.
State, 786 S.W.2d 271, 290 (Tex. Crim. App. 1989), for the assertion that “[a] non-
victim witness should not be asked for his or her recommendation of a particular
punishment.” In Sattiewhite, the Court specifically addressed a punishment
recommendation by experts, and not testimony by a crime victim. See Garza, 2014
WL 6984333, at *3; see also Fryer, 68 S.W.3d at 631 (explaining that Sattiewhite
does not address the propriety of what may be considered in a PSI). Sattiewhite is
inapposite to this case.
Harris elected to have his punishment tried to the court without a jury.
Accordingly, because it was a bench trial, there was no risk that the question or the
answer given by the victim-witness would sway or influence a jury. See generally
Navarro v. State, 477 S.W.2d 291, 292 (Tex. Crim. App. 1972); Moreno v. State,
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900 S.W.2d 357, 359-60 (Tex. App.—Texarkana 1995, no pet.). Nothing in the
record before us indicates that the trial judge failed to remain impartial. See Brewer
v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. [Panel Op.] 1978).
Moreover, even if the testimony in question was objectionable, the trial court
did not err in failing to grant a mistrial. “[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.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.
2004). Courts balance three factors in the harm analysis: (1) the severity of the
misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of
punishment assessed absent the misconduct (likelihood of the same punishment
being assessed). Id.
In this case, the victim’s statement that he would feel safe if Harris received
a life sentence was not so prejudicial that a mistrial was warranted. The
overwhelming evidence showed that Harris robbed both restaurants, shot at
customers, threatened employees and customers with a gun, caused one employee
to believe his death was imminent, and that Harris was a member of a gang known
to be involved in criminal and violent activity, and boasted about his gang-related
activities on social media. It is understandable why a witness who was a victim of
one of the robberies might testify he would feel safe if Harris were to receive a life
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sentence, but such testimony is not so prejudicial in the context of this bench trial
that it would warrant a mistrial. The evidence presented at the punishment phase,
even without such statement, would support the punishment assessed by the trial
court. Accordingly, we conclude that the trial court did not err in refusing to grant
a mistrial.
We overrule Harris’s sole issue and affirm his convictions.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on July 10, 2015
Opinion Delivered July 29, 2015
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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