Clifford Scott Wright v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Clifford Scott Wright

Appellant

Vs.                   No. 11-00-00327-CR  B Appeal from Taylor County

State of Texas

Appellee

The jury convicted appellant of murder and assessed his punishment at confinement for life and a $10,000 fine.  We affirm.

In his first point of error, appellant argues that the trial court erred in overruling his claim of double jeopardy.  In another trial for this same offense, the trial court granted a mistrial at the request of appellant=s trial counsel.  We will interpret appellant=s first point of error as raising constitutional claims under the double jeopardy provisions of the United States Constitution, Fifth Amendment, as well as under Article I, section 14 of the Texas Constitution.

In Bauder v. State, 921 S.W.2d 696, 697 (Tex.Cr.App.1996), the court wrote:           

It is clear that the Fifth Amendment is not offended by a successive prosecution for the same offense when the earlier proceeding was terminated at the defendant's request unless the attorney representing the government deliberately set out to provoke the defendant's motion for mistrial.   Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982).  We have applied this standard of review to double jeopardy claims urged under the United States Constitution, as in  Crawford v. State, 703 S.W.2d 655 (Tex.Crim.App.1986), and to generic double jeopardy claims, as in Collins v. State, 640 S.W.2d 288 (Tex.Crim.App.1982) (panel opinion, rehearing en banc denied), and Anderson v. State, 635 S.W.2d 722 (Tex.Crim.App.1982).  

Recognizing that Texas courts could interpret the Texas Constitution in such a way as to provide more expansive rights than the United States Constitution, the court in Bauder also wrote:

[Under the double jeopardy provisions of the Texas Constitution] a successive prosecution is jeopardy barred after declaration of a mistrial at the defendant's request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request. Under this rule, the prosecutor is not accountable for mistrials when the trial judge need not have granted the defendant's motion.  But he is accountable for mistrials properly granted by the trial judge when the events making a mistrial necessary were of his own deliberate or reckless doing.

Bauder v. State, supra at 699.

Appellant=s first trial for the offense began on April 10, 2000.  The next day, outside the presence of the jury, the State told the trial court:

I=d like to state for the record that as the district attorney here in Taylor County and responsible for the prosecution of this case, on yesterday=s date, which would have been April 10 of the year 2000, after the conclusion of the proceedings in court yesterday I was meeting with Detective John McCoy of the Abilene Police Department in my office, we were discussing the investigation of this case, and at that time a subject=s name was presented to me and at that time I  learned for the first time from Detective McCoy that that person had given him information which would have been exculpatory to the defendant in this case, Clifford Scott Wright.  That is information I had not received until yesterday afternoon at approximately 5:45 to 6 p.m. 

After receiving that information from the detective I requested that he put that  in the form of a report, in writing.  He did so. I furnished that to defense counsel. I think without question I would represent to the Court that the information that we received was exculpatory and had not been disclosed prior to this morning to defense counsel.

At this point, appellant=s trial counsel requested a mistrial for the purpose of further investigation.  There was no discussion on the record at that time as to the nature of the exculpatory evidence.  The trial court granted the mistrial.  On June 30, 2000, appellant filed a pretrial application for writ of habeas corpus in which he asserted his claim of double jeopardy. The basis for the writ was that, after the jury was empaneled and sworn and the trial court had heard testimony from two witnesses, trial counsel for appellant was required to move for a mistrial because exculpatory evidence had been withheld.

A hearing, out of the presence of the jury, was held on July 13, 2000, to address appellant=s double jeopardy allegation.  At this hearing, the nature of the exculpatory evidence was developed for the first time.   The prosecutor testified that, on April 10, 2000, Detective John McCoy told him for the first time that George Rangel had also confessed to the victim=s murder.  Detective McCoy did not share this information with the prosecutor earlier because he did not feel it to be important.  The information regarding Rangel=s confession was never placed in the file because, in the course of the investigation, the police determined that Rangel=s confession Ahad no bearing on the case.@  The trial court denied appellant=s request for a writ of habeas corpus. 

The trial court need not have granted appellant=s request for a mistrial in the first trial.  The prosecutor informed appellant=s trial counsel and the trial court, outside the presence of the jury, of the newly-discovered exculpatory evidence. A mistrial is typically a Alast resort.@  See Bauder v. State, supra at 698-99.   Trial counsel did not request a continuance to investigate but, instead, requested a mistrial to investigate.  The record does not indicate that the prosecutor intended to induce appellant=s trial counsel to seek a mistrial or that he engaged in deliberate or reckless conduct.  The prosecutor brought the fact that exculpatory evidence existed to the attention of opposing counsel and the trial court as soon as he was aware of the information.  A mistrial was granted prior to the development of the nature of the exculpatory evidence.  Furthermore, the police did not consider Rangel=s confession to be legitimate because, although he confessed to committing the act, he knew no details of the murder.  There is no reason that the prosecutor should have been aware of this information because the police had conclusively determined that Rangel was not involved.  The request for mistrial was the free election of appellant=s trial counsel.  Because the mistrial did not give rise to a double jeopardy claim under either the United States Constitution or the Texas Constitution in the second trial, appellant=s first point of error is overruled.

In his second point of error, appellant argues that the trial court abused its discretion in denying his motion to suppress evidence.  We disagree.

Appellant filed his motion to suppress evidence on January 19, 2000.  In his motion, appellant asserted that A[t]he search in [this] case does not fall within any exception to the warrant requirement.@  At the hearing on this motion, one witness, Detective McCoy, testified. Although Detective McCoy testified that he requested, obtained, and executed an arrest warrant for appellant, appellant complains that the arrest warrant was not presented to the trial court. Appellant apparently lived with his parents.  Following an initial interview, appellant and his father voluntarily consented to a search of the residence.  Both appellant and his father signed a Aconsent to search@ form after reading the document.  The officers searched appellant=s bedroom and seized two pairs of blue jeans; a T-shirt; a pair of tennis shoes; and a pair of combat-style boots with a long, dark-brown hair and possible blood on them.

Appellant=s motion to suppress was denied by the trial court.  During trial, when the boots were offered into evidence, trial counsel for appellant stated that he had A[n]o objection@ to their admission.  Although trial counsel for appellant objected to the admissibility of evidence in his motion to suppress, when the boots were actually offered into evidence at trial, he had A[n]o objection.@  Appellant waived his challenge to the admissibility of evidence.  Moody v. State, 827 S.W.2d 875, 889 (Tex.Cr.App.1992).  Appellant=s second point of error is overruled.

In his third point of error, appellant argues that the trial court erred in overruling his objection to the State=s comment in jury argument which he claims was a comment on his failure to testify.  There are four permissible areas of jury argument:  (1) summations of the evidence;  (2) reasonable deductions from the evidence; (3) responses to the defendant=s argument; or  (4) a plea for law enforcement. See Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Cr.App.1997).  During jury argument, a prosecuting attorney may draw inferences from the facts in evidence as well as all inferences from the facts which are reasonable, fair, and legitimate.  McFarland v. State, 989 S.W.2d 749, 751 (Tex.Cr.App.1999).

When considering whether an argument was an improper comment on the defendant=s failure to testify, we review the statement from the standpoint of the jury.  Staley v. State, 887 S.W.2d 885, 895 (Tex.Cr.App.1994).  It is insufficient that the statement might be considered as an implied or indirect reference to the defendant=s failure to testify.  Staley v. State, supra at 895.  The argument must necessarily refer to the defendant=s failure to testify.  Wolfe v. State, 917 S.W.2d 270, 279 (Tex.Cr.App.1996).

 Erroneous rulings by the trial court following improper jury argument are classified as Aother errors@ or non-constitutional errors under TEX.R.APP.P. 44.2(b).  See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Cr.App.1998).  The Court of Criminal Appeals has held:

A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. 

Johnson v. State, 967 S.W.2d 410, 417 (Tex.Cr.App.1998).

Pamela J. Brady testified that appellant confessed to the murder a number of years after the offense was committed.  Brady was one of several witnesses for the State who testified that appellant had confessed that he had committed the murder. In his closing argument, trial counsel for appellant attacked the credibility of these witnesses.  In response, the prosecutor argued that the witnesses were credible because appellant admitted to committing the offense at different times to different people.  During the prosecutor=s argument, the following exchange took place:

[PROSECUTOR]:  But even if you discount that, say APeople are liable to boast and talk big while they=re in the jail,@ years and years later Pam Brady says, ASitting in a car in a park, he told me he did it.  And he was emotional about it.@  Now, folks, would an innocent person say that under those conditions?  If you=d been accused and arrested for something this serious sixteen years ago, think that you would scream to the mountainside AI didn=t do it.@ Innocent B

[DEFENSE COUNSEL]: Objection, Your Honor. Comments on the defendant=s failure to testify.  We=d ask for a mistrial.

[PROSECUTOR]: I=m speaking of the conversation in the car with Pam Brady.

THE COURT: Overrule the objection.

After reviewing the record as a whole, it appears that the prosecutor was summarizing the testimony of the witnesses to whom appellant confessed the commission of the offense.  The argument did not necessarily refer to appellant=s failure to testify; it is a characterization of witness testimony presented by the State. 

Moreover, even if the prosecutor=s comment was improper, it is not reversible error.  The prosecutor=s comment does not rise to such a level that appellant=s substantial rights were affected; it did not influence the jury or have an insignificant effect on the verdict.  See Rule 44.2(b).  Appellant=s third point of error is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

April 18, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.