Craig MacK v. State ( 1992 )

Mack-C v. State

IN THE

TENTH COURT OF APPEALS

No. 10-92-019-CR

     CRAIG MACK,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 91-509-C

O P I N I O N

      A jury found Craig Mack guilty of the offense of delivery of a controlled substance: cocaine (enhanced). It assessed punishment at life in prison. He appeals on two points. His first point is that the indictment was fundamentally defective because it failed to allege all the necessary elements to determine his punishment range. Second, he contends, the trial court erred when it overruled his objection to the State's strikes of all of the African-American jurors from his jury panel. We affirm.

      The indictment charging Mack with the delivery of cocaine reads: He "did then and there intentionally and knowingly deliver to SHAWN WILLIAMS a controlled substance, namely cocaine of less that two-hundred grams, including any adulterants and dilutants, by actually transferring, said controlled substance." Mack asserts that there is no provision in the Texas Controlled Substances Act that provides for a range of punishment for delivery of "less that two-hundred grams." Thus, he argues, the indictment was fundamentally defective. However, Mack waived any defect in the indictment by failing to object to it before the trial. See Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon Supp. 1992); Rodriguez v. State, 799 S.W.2d 301, 302 (Tex. Crim. App. 1990). We overrule the first point.

      Mack is African-American. The State peremptorily struck three African-Americans (Jones, Whitfield, and Cashaw). Mack asserts that the trial court erred by overruling his objection to the State's strikes of the three African-American jurors from his jury panel on the ground that the State's strikes were racially based. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). At the Batson hearing, the prosecutor testified that he struck Cashaw because Cashaw had a friend who sold drugs to an undercover officer and because the prosecutor had prosecuted Cashaw's first cousin on a drug charge. The prosecutor further testified that she struck Whitfield because Whitfield had a brother who had a federal conviction for forgery. Whitfield further indicated that she possibly knew the defendant. Jones, according to the State, was struck because she indicated that her husband had been convicted for unlawfully carrying a weapon.

      These reasons are facially race-neutral. See DeBlanc v. State, 799 S.W.2d 701, 713 (Tex. Crim. App. 1990), cert. denied, ——U.S.——, 111 S. Ct. 2912, ——L.Ed.2d—— (1991) (jurors knew the defendant or his family); Sims v. State, 768 S.W.2d 863, 865 (Tex. App.—Texarkana 1989), pet. dism'd, improvidently granted, 792 S.W.2d 81 (Tex. Crim. App. 1990) (juror's kinship with a person who has trouble with the law). Considering the voir dire and the record of the Batson hearing, Mack has not shown that the court's finding was clearly erroneous. See Whitsey v. State, 796 S.W.2d 707, 726 (Tex. Crim. App. 1989) (on rehearing). Point two is overruled.

      We affirm the judgment.

                                                                                     BOB L. THOMAS

                                                                                     Chief Justice

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Affirmed

Opinion delivered and filed October 30, 1992

Do not publish

ion that even if he continued the trial until May 10 he did not believe the attorneys for either side would want Boykin on the jury. Barron and Cannon both agreed that they would not. The court then ruled that he would declare Boykin "disabled" and proceed with the trial with only eleven jurors.

          In his first point of error Taylor argues the trial court erred in overruling the motion for mistrial he made after the court dismissed Boykin from the jury. Within this single point of error Taylor raises several issues. They are: (1) whether the trial court was without discretion to permit the trial to proceed with only eleven jurors because Texas law requires twelve in all felony cases; (2) whether Boykin was "disabled" as provided by statute; and (3) whether the court erred in dismissing Boykin because she only wanted the trial to be continued to a time when she could concentrate on the case again, not to be dismissed altogether.

          In his brief, Taylor refers to three separate statutory provisions that apply to the first issue. They are: Tex. Gov't Code Ann. § 62.201 (Vernon 1988), which provides that "[t]he jury in a district court is composed of 12 persons, except that the parties may agree to try a particular case with fewer than 12 jurors"; Tex. Code Crim. Proc. Ann. art. 33.01 (Vernon 1989) which provides, in part, that "[i]n the district court, the jury shall consist of twelve qualified jurors"; and Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 1995), which reads, in relevant part:

Not less than twelve jurors can render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman . . . [H]owever, when pending the trial of any felony case, one juror may die or be disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it.

Taylor contends that these provisions are in conflict and that section 62.201 should control because it was allegedly the most recently enacted. With section 62.201 controlling, asserts Taylor, he was entitled to twelve persons on his jury notwithstanding any contrary provisions in article 36.29(a).

          When a general statute and a more detailed enactment are in conflict, the latter will prevail, regardless of whether it was passed prior to or subsequently to the general statute, unless it appears that the legislature intended to make the general statute controlling. Tex. Gov't Code Ann. § 311.026 (Vernon 1988); Ex Parte Smith, 849 S.W.2d 832, 834 (Tex. App.—Amarillo 1992, no pet.). Article 36.29(a) is a specific statute addressing the issue of whether a felony trial may proceed with less than twelve jurors when one of them becomes "disabled" within the meaning of the statute before the charge is read to the jury. Section 62.201 and article 33.01 are general statutes, relating to how many jurors are supposed to sit in trials in the district courts. Nothing in either section 62.201 or article 33.01 indicates that the legislature intended them to control over article 36.29(a). Accordingly, article 36.29(a) controls and the trial court did not err in permitting the case to proceed to trial with only eleven jurors. There is no merit to Taylor's arguments in this first issue.

          In the latter two issues, Taylor complains of the court's declaration that Boykin was disabled and its consequent dismissal of her from the jury. Under article 36.29(a), a trial court may declare a juror disabled not only in situations where he is physically injured, but also if he is suffering from any mental or emotional condition which hinders his ability to perform his duties as a juror. Landrum v. State, 788 S.W.2d 577, 578 (Tex. Crim. App. 1990) (per curiam). The determination of whether a juror should be declared disabled is within the sound discretion of the court. Id. Here, there was evidence that Boykin was emotionally distraught after learning that her son had been recently killed. Boykin, herself, stated that she did not believe she would be able to concentrate on the case for at least another week. Furthermore, the trial court was not bound by Boykin's statement that she believed she might be able to return to the jury within a week. The court was within its discretion both in finding that Boykin was presently disabled and that she would continue to be disabled for an indefinite period of time, which justifies the court's decision not to continue the case until a later date. Thus, the court was authorized to continue with the trial under article 36.29(a) with only eleven jurors. Taylor's latter two issues under his first point of error are also without merit. His first point is overruled.

          In his second point Taylor argues the trial court erred in permitting the prosecutor to make an improper comment during his closing argument. At the close of the guilt-innocence stage, the prosecutor commented, "[Taylor] was intoxicated the night before [the killing] and he probably was still intoxicated when he got up and then drank --". Taylor's objection that "[t]here [was] no evidence of that" was overruled.

          There are four permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answers to arguments from the defense; and (4) pleas for law enforcement. Willis v. State, 785 S.W.2d 378, 384 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 908, 111 S. Ct. 279 (1990). Taylor does not specify which portion of the above-quoted comment from the prosecutor to which he objects, whether the allegation of Taylor being intoxicated the night before the killing, the allegation that he was probably intoxicated the next morning, the allegation that he drank alcohol that next morning, or all of the above. There is direct evidence in the record that Taylor was intoxicated the night before the killing and that he drank alcohol on the morning of the killing; therefore, these comments were proper summations of the evidence. With regard to the prosecution's assertion that Taylor was probably intoxicated when he awoke on August 1, there was testimony that Taylor drank beer all day long on July 31, was intoxicated when he went home at around 2:00 or 3:00 in the morning on August 1, and awoke after sleeping only five hours. Under these facts, the prosecutor's comment that Taylor was probably intoxicated when he awoke on August 1 was a reasonable deduction from the evidence. Cantu v. State, 842 S.W.2d 667, 690 (Tex. Crim. App. 1992) (holding that counsel is generally afforded wide latitude in drawing inferences from the record, as long as such inferences are reasonable and offered in good faith), cert. denied, — U.S. —, 113 S. Ct. 3046 (1993). Taylor's second point is overruled.

          In his third point of error, Taylor argues that the prosecutor injected improper statements into his closing argument at the end of the punishment phase of the trial. Taylor contends that the prosecutor (1) improperly asserted that Taylor was ineligible for probation unless he demonstrated remorse; (2) offered his opinion on whether Taylor should be eligible for probation; (3) commented on the applicability of the parole law; and (4) offered other personal opinions about Taylor's appropriate punishment. None of these allegedly improper comments were objected to either during the trial or by a post-trial motion.

          As a general rule, there must be a timely, proper, and specific objection to the prosecutor's complained about jury argument in order to preserve the complaint for appellate review purposes. Tex. R. App. P. 52(a); Miller v. State, 741 S.W.2d 382, 391 (Tex. Crim. App. 1987); Karnes v. State, 873 S.W.2d 92, 101 (Tex. App.—Dallas 1994, no pet.). An exception to the general rules exists when the prosecutor's argument so infects the trial with unfairness as to make the resulting conviction a denial of due process. Miller, 741 S.W.2d at 391. We have reviewed the complained of arguments and find that they do not rise to the level of a denial of due process. His third point of error is overruled.

          In his fourth point of error Taylor asserts the trial court erred in overruling his objection to the Allen charge given the jurors when they informed the court they were unable to reach a unanimous decision on punishment. Allen v. United States, 164 U.S. 492, 17 S. Ct. 154 (1896).

          An Allen charge is a supplemental instruction to a deadlocked jury essentially stating that the jurors should examine the questions submitted to them with candor and a proper regard and deference for the opinions of each other and decide the case if they can conscientiously do so. Duc Vu v. State, 750 S.W.2d 8, 9 (Tex. App.—Texarkana 1988, pet. ref'd) (citing Allen, 164 U.S. 492, 17 S. Ct. 154; 23 Tex.Jur.3d Criminal Law § 2897 (1982)). Every charge, however, that instructs the jury to continue their deliberations after they inform the court that they are deadlocked is not necessarily an Allen charge. See Muniz v. State, 573 S.W.2d 792, 794 (Tex. Crim. App. 1978). To be an Allen charge, there must be some language bringing pressure to bear upon the jury to reach a unanimous verdict. See id; see also Montoya v. State, 810 S.W.2d 160, 167 (Tex. Crim. App. 1989).

          The coercive language that constitutes an Allen charge, however, does not necessarily render the charge an improper means of compelling a verdict. Duc Vu, 750 S.W.2d at 9. A number of factors may operate to prevent the charge from becoming unduly coercive, including the length of time the jury had been deliberating when they notify the court they are deadlocked and the amount of coerciveness indicated in the charge. The primary factor to be weighed, however, is whether the court incorporates any cautionary language in the charge that the minority jurors should not do violence to their consciences in considering whether to join the majority vote of their co-jurors. See Dodd, 753 S.W.2d at 521; Duc Vu, 750 S.W.2d at 9.

          The charge given in the instant case reads in full:

You are instructed that it is not appropriate for the Court to communicate privately with the jury. If you are ultimately unable to reach a unanimous decision, it will be necessary to declare a mistrial, then another jury will be empaneled to consider the same evidence which you have considered. You should continue your deliberations in an effort to reach a unanimous decision.

(Emphasis added.) Taylor objected, requesting that the italicized portion of the charge be deleted. The trial court overruled the objection.

          In his brief Taylor asserts that the charge issued by the court was deficient because it failed to include any cautionary language that the jurors should not violate their consciences in attempting to agree upon a unanimous verdict. Jackson v. State, 753 S.W.2d 706, 711-12 (Tex. App.—San Antonio 1988, pet. ref'd); Griffith v. State, 686 S.W.2d 331, 333 (Tex. App.—Houston [1st Dist.] 1985, pet. ref'd). The State argues that Taylor's argument on appeal does not comport with his objection to the trial court and, therefore, his complaint is waived. Tex. R. App. P. 52(a); Garcia v. State, 887 S.W.2d 862, 874 (Tex. Crim. App. 1994).

          We first note that the court's charge was, indeed, an Allen charge. The italicized portion of the charge could only have had the effect of pressuring the jury to reach a unanimous verdict; this language transformed the charge from a completely innocuous charge into an Allen charge. Taylor's objection to the use of the italicized portion of the charge reveals that he disapproved of the court's intention to bear pressure upon the jury; in other words, he objected to the court's intention to issue an Allen charge. Undeniably, Taylor did not inform the court that he objected to the omission of any cautionary language from the charge, but, because the cautionary language is inextricably entwined to the elements of what constitutes an Allen charge, Taylor's objection was broad enough to encompass the argument he makes on appeal. Tex. R. App. P. 52(a). Therefore, we find his complaint was preserved at the trial court. Id.

          Having found that the complaint was preserved, we will now consider whether the court erred in issuing the charge. In reviewing an Allen charge, the appellate court must evaluate its potential for harmful coercion of the jurors, followed by an evaluation of any harm caused by the error. Tex. R. App. P. 81(b)(2); Duc Vu, 750 S.W.2d at 9. The charge issued by the court came over three hours after the jury began deliberating and lacked any of the cautionary language usually included to temper the coercive aspects of the charge. Furthermore, as stated above, the italicized portion of the charge necessarily had the effect of coercing the jurors to reach a unanimous verdict. Accordingly, we find that the charge was unduly coercive.

          We next evaluate whether any harm came from the charge. Id. Factors we will consider include the level of coercion present in the charge, whether there is any evidence that some of the jurors were coerced, and the amount of time that passed following the issuance of the charge before the jury returned its verdict.

          The level of forcefulness in the charge's coercive language was not unduly severe; it merely informed the jury that another jury would need to be empaneled to consider the same evidence if this jury was unable to reach a unanimous verdict. See Griffith, 686 S.W.2d at 332-33 (stronger charge that implied to the jurors that their oath required them to reach a unanimous verdict did not constitute harmful error). Nothing else in the record indicates that any juror was coerced by the instruction given. No affidavits or testimony were presented from any jurors to indicate that he was in any way influenced. See id. There was also no indication in the record that the jury came back with a unanimous verdict within a short amount of time the charge was issued. See id. Accordingly, we conclude no harm came from this error, and Taylor's fourth point is overruled.

          In his fifth point Taylor complains the trial court erred in denying the motion for mistrial he lodged as a consequence of the court's issuance of the above-quoted Allen charge. In his motion, he asserted that the jury had been deliberating for more than three hours, that it was unlikely the jury would be able to reach a unanimous decision, and, therefore, a mistrial was in order.

          The substance of an appellant's complaint on appeal must comport with his objection to the trial court; if it does not, the complaint cannot be considered by the appellate court because it was not preserved for review. Tex. R. App. P. 52(a); Garcia, 887 S.W.2d 862, 874. Taylor's objection does not comport with his argument on appeal. Taylor's argument in his fifth point is the same one he raises in his fourth point. His argument on appeal fails to comport with his complaint to the trial court. Tex. R. App. P. 52(a); Garcia, 887 S.W.2d at 874. Therefore, his complaint is not preserved and his fifth point of error is overruled.

          Taylor asserts in his sixth point that the trial court erred in allowing the prosecution to ask a witness for the defense, Edith Stroad, during the punishment phase of the trial if she knew that Taylor had been arrested for driving while intoxicated in March 1974 and April 1975. Taylor objected that the two DWI arrests were too remote to be used to impeach Stroad's testimony of Taylor's good character. The trial court overruled the objection.

          In his brief, Taylor contends the trial court erred in allowing the questions to be asked because only bad acts that result in criminal convictions may be used to impeach a character witness during the punishment phase. Once more, Taylor's argument on appeal does not comport with his objection to the trial court. Tex. R. App. P. 52(a); Garcia, 887 S.W.2d at 874. Accordingly, his complaint is waived and we overrule his sixth point.

          Taylor argues in his seventh point of error the trial court erred in permitting the prosecution to ask Stroad, again during the punishment phase, a question about another extraneous offense. The relevant portion of the trial is quoted below:

[PROSECUTOR]: Have you heard or did you know that Joe Taylor was arrested for driving while intoxicated both --

CANNON: Your honor, it's have you heard. It's not do you know.

[PROSECUTOR]: It's do you know to the opinion and have you heard to general reputation.

. . .

[PROSECUTOR]: Did you know that in 1988 in Jewett that [Taylor] assaulted an individual named Kevin Newcomb?

STROAD: No, I did not.

[PROSECUTOR]: Did you know at that same time that he fired several shots at Kevin Newcomb?

CANNON: Judge, that's still . . . asking do you know, and that's assuming that it's correct and that's just an assumption on the part of the [S]tate and we object to it because of that.

          THE COURT: Overruled.

Taylor's objections to the trial court were based upon the form of the prosecution's impeachment question; i.e., whether the question should be phrased in either the "Did you know" or the "Have you heard" format. Taylor's objection reveals that he disapproved of the "Did you know" format because, implicit in that form of a question, is allegedly an assumption that Taylor had actually done the bad act the prosecution was referring to. Taylor apparently preferred the "Have you heard" form because it supposedly lacks this inherent assumption.

          Taylor's arguments on appeal involve the propriety of admitting into evidence the extraneous offense of Taylor's alleged firing of several shots at Kevin Newcomb. These arguments have nothing to do with the proper form of the prosecution's impeachment questions to Stroad. Because his arguments on appeal do not comport with his objections to the trial court, his complaints in his seventh point of error were not preserved for review. Tex. R. App. P. 52(a); Garcia, 887 S.W.2d at 874. His seventh point is overruled.

           In his eighth point Taylor argues the trial court erred in failing to schedule a hearing on his motion for new trial and in permitting it to be overruled by operation of law. Tex. R. App. P. 31(d),(e)(3). Taylor alleged in his motion, which was supported by an accompanying affidavit from one of the jurors, that a new trial was in order because the jury had improperly considered the effect of the parole laws on Taylor's sentence in assessing the proper punishment for him.

          Rule of Appellate Procedure 31(c)(1) provides:

An accused shall present his motion for new trial to the court within ten days after filing it, unless in his discretion the trial judge permits it to be presented and heard within 75 days from after date sentence is imposed or suspended in open court.

Tex. R. App. P. 31(c)(1). Unless the accused obtains permission from the court to present his motion at a later date within the seventy-five day time period mentioned in Rule 31(c)(1), his complaint is untimely if he fails to present his motion for new trial to the trial court for consideration within ten days of its filing. Price v. State, 840 S.W.2d 694, 696-97 (Tex. App.—Corpus Christi 1992, pet. ref'd); Enard v. State, 764 S.W.2d 574, 575 (Tex. App.—Houston [14th Dist.] 1989, no pet.). There is nothing in the record to indicate either that Taylor presented his motion to the trial court or that the trial court gave him permission to present the motion at some time during the seventy-five day period. Therefore, we conclude the motion was not timely presented and the court committed no error in permitting it to be overruled by law. Taylor's eighth point is overruled.

          In his ninth and final point, Taylor contends the facts elicited at his trial are insufficient to support his conviction for voluntary manslaughter. At the end of the guilt-innocence stage of the trial, the court charged the jury on both murder and the lesser-included offense of voluntary manslaughter. The jury convicted him only of voluntary manslaughter. Taylor maintains that, because there was no evidence adduced at trial of sudden passion, an element of voluntary manslaughter, the evidence was legally insufficient to support his conviction.

          Taylor, however, failed to object to the court's charge. In failing to object to the charge on the lesser-included offense, Taylor is estopped from complaining on appeal that the evidence failed to establish all the elements of the lesser offense. Scott v. State, 867 S.W.2d 148, 154 (Tex. App.—Austin 1993, no pet.); Tamez v. State, 865 S.W.2d 518, 519-20 (Tex. App.—Corpus Christi 1993, pet. ref'd). Therefore, his ninth point is overruled.

          The judgment is affirmed.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed September 29, 1995

Do not publish