David Francis Anderson v. State ( 2010 )

Opinion Issued May 6, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00108-CR

DAVID FRANCIS ANDERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1152878

MEMORANDUM OPINION

A jury found appellant, David Francis Anderson, guilty of the offense of murder[1] and assessed his punishment at confinement for seventy-nine years and a fine of $10,000.  In ten points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction and the trial court erred in admitting certain hearsay and irrelevant evidence, permitting the State to make improper jury arguments, and instructing the jury that it could consider the prior relationship, if any, between appellant and Amy Smith, the complainant.[2]

          We affirm.

Background

In State’s Exhibit No. 3, a recording of a telephone call made by appellant to an emergency assistance operator on February 7, 2008 at approximately 5:00 a.m., appellant exclaimed,

Somebody came in our house and I wasn’t around and my girlfriend is laying on the ground with a bullet in her head.  I don’t know what . . . happened . . . The door is unlocked . . . There was like three or four black males . . . it happened about ten minutes ago . . . Someone tried to come in here and rob us . . . I don’t know if she got shot . . . I’m not [there] . . . if they’re robbing her, they’ll kill everyone . . . Four nights ago, they kicked in my door . . . and . . . they pointed shot guns at us   . . . [the robbers] took off running . . . [The victim’s] name is Amy and she has a very, very, very, very, . . . bad temper.

Houston Police Department (“HPD”) Officer K. Montague testified that on February 7, 2008, he was dispatched to appellant’s apartment in response to the emergency assistance call.  As he approached the apartment, he noted that the windows were undamaged and the door “appeared intact” and “secure” but “unlocked.”  Montague opened the door, walked into the living room, and saw “narcotics on the coffee table,” including marijuana and “some pills.” He then went into the bedroom, where he found the complainant, barely breathing, with a gunshot wound to her head.  Although there were no firearms in the apartment, Montague found “a nylon holster” for a pistol in the couch.  Neighbors gave Montague the description of “David,” who lived in the apartment.

At approximately 6:52 a.m., Officer Montague saw appellant, who matched the description given to him, walking in the parking lot.  After appellant tried to avoid him, Montague called out, “come here,” and appellant did.  Appellant, who was “rather calm,” asked Montague what had happened.  Montague responded that appellant’s girlfriend had been shot, but appellant did not seem surprised.  Montague then patted appellant down for weapons, “not knowing if he was [a] suspect,” and put him in the back of his patrol car “not handcuffed.”

HPD Homicide Investigator R. Swainson testified that he was dispatched to the apartment complex to investigate the complainant’s death. When he arrived, Swainson approached appellant, who was waving at him from the back of Montague’s patrol car.  After appellant asked Swainson if his girlfriend was “okay,” he stated “they kicked in the door” and “she was shot in the head.” Appellant told Swainson that he had some firearms located at the apartment of Kelly Kelso, an acquaintance. Swainson subsequently recovered from Kelso’s apartment appellant’s assault rifle, .22 caliber semi-automatic pistol, and .38 caliber revolver loaded with five chambered rounds.

Kelly Kelso testified that on February 7, 2008, at approximately 6:00 a.m., appellant came to her apartment, “banged” on the door, and “asked to drop something off.”  Appellant, who appeared “very nervous and kind of freaked out,” brought into her apartment “a large object.”  Appellant left and immediately returned carrying something that appeared to have “the end of a gun” sticking out of it.  Upon examining the items, Kelso discovered “two guns” and a third “big gun,” which were later recovered by Investigator Swainson.

HPD Crime Scene Investigator L. Verbitskey testified that the jamb and locking mechanism for the front door of appellant’s apartment were intact and the windows were unbroken.  He opined that there did not appear to have been a forced entry.  In the pantry, Verbitsky found seventeen live bullets, including some .38 caliber.  In the living room, he found a “green leafy substance,” which appeared to be marijuana, on the coffee table, and additional live bullets. 

Harris County Medical Examiner Dr. Pramod Gumpeni, who performed the autopsy of the complainant’s body, testified that the complainant suffered from an “entrance gunshot wound” just over her left eye with evidence of “stippling” on her “left forehead, part of her nose and her eye.” He explained that “stippling,” or “burns,” are caused by gunpowder when a firearm is discharged within four to eighteen inches of a target.  Dr. Gumpeni opined that the stippling was inconsistent with “a self-inflicted gunshot wound” because most self-inflicted gunshot wounds are “close contact, where the gun is placed directly against the skin.”  He recovered a “bullet and jacket fragments” from the complainant’s brain. On cross-examination, Dr. Gumpeni conceded that he could not exclude to a “reasonable medical certainty” that the complainant’s death was not a suicide or an accident.

HPD firearms analyst Donna Eudaley testified that the .38 revolver recovered from Kelly Kelso’s apartment fired the bullet fragment that Dr. Gumpeni recovered from the complainant’s brain.  She noted that the revolver’s “hammer block” and “rebound safety,” which prevent it from “discharging accidentally,” were in working order and would prevent it from accidentally discharging if the trigger was “accidentally knocked.”  On cross-examination, Eudaley conceded that a person could accidentally discharge the revolver if he had “his finger on the trigger” or “the hammer engaged and [attempted] to disengage the hammer.”  Eudaley could not determine whether the complainant’s shooting was “unintentional,” and she noted that evidence of only one fired cartridge “could be consistent with suicide.”

Legal and Factual Sufficiency

          In his first and second points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction because the “State wholly failed to establish, beyond a reasonable doubt, that the complainant was murdered.”

          We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979)).  In doing so, we give deference to the responsibility of the fact-finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts.  Id.  However, our duty requires us to “ensure that the evidence presented actually supports a conclusion that the defendant committed” the criminal offense of which he is accused.  Id.

          In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, i.e., that the verdict seems “clearly wrong and manifestly unjust,” or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006).  We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford due deference to the jury’s determinations.  Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).  Although we should always be “mindful” that a jury is in the best position to decide the facts and that we should not order a new trial simply because we disagree with the verdict, it is “the very nature of a factual-sufficiency review that . . . authorizes an appellate court, albeit to a very limited degree, to act in the capacity of a so-called ‘thirteenth juror.’”  Watson, 204 S.W.3d at 414, 416–17.  Thus, when an appellate court is “able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury’s verdict[,] . . . it is justified in exercising its appellate fact jurisdiction to order a new trial.”  Id. at 417.

A person commits the offense of murder when he intentionally or knowingly causes the death of an individual.  Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003).

In support of his legal sufficiency challenge, appellant asserts that the evidence is “wholly circumstantial” and no evidence shows that he “engaged in any act for which he could be held criminally responsible.”  He emphasizes that Dr. Gumpeni and Donna Eudaley could not rule out suicide and accidental discharge of the weapon and appellant’s “unusual behavior [near the location of the complainant’s death] . . . adds nothing to this Court’s evaluation of this Point of Error.”

Viewing all of the evidence in the light most favorable to the verdict, appellant, on February 7, 2008, at about 5:00 a.m., called for emergency assistance and told the operator that “three or four black males” had “tried to come in here and rob us” and the robbers had shot his girlfriend “Amy” in the head.  However, Officer Montague testified that when he arrived at appellant’s apartment shortly thereafter, he found numerous valuable electronics and narcotics lying about undisturbed.  Investigator Verbitsky testified that appellant’s apartment showed no sign of forced entry.  Most significantly, appellant, who had left the apartment before calling for emergency assistance, took three guns, including the .38 revolver that was the murder weapon, to Kelly Kelso’s apartment.  When appellant then returned to his apartment complex, he continued walking when he saw Officer Montague even though he knew that his girlfriend had been shot.  The physical evidence contradicted appellant’s representation that a robbery had occurred.  Moreover, his efforts to conceal the murder weapon and avoid Officer Montague at the apartment complex indicate his “consciousness of guilt.”  His attempt to conceal incriminating evidence, his inconsistent statements, and his implausible explanations “are probative of wrongful conduct and are also circumstances of guilt.”  Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).  Also, Dr. Gumpeni explained that the complainant’s injury was inconsistent with suicide because of the “stippling.”  Moreover, firearm’s analyst Eudaley testified that the .38 revolver had fully operational safety mechanisms and would likely not have discharged accidentally.  Viewing the evidence in the light most favorable to the verdict, a reasonable trier of fact could have found beyond a reasonable doubt that appellant murdered the complainant.  Accordingly, we hold that the evidence is legally sufficient to support appellant’s conviction.

In support of his factual sufficiency challenge, appellant again emphasizes that suicide and accidental discharge of the weapon could not be ruled out and the State “relied upon circumstantial evidence,” not direct evidence, to prove his guilt.  We note that circumstantial evidence is probative of a defendant’s guilt and is sufficient by itself to establish guilt.  Guevara, 152 S.W.3d at 49.

Dr. Gumpeni and firearms analyst Eudaley did testify that suicide and accidental discharge could not be ruled out.  However, Dr. Gumpeni explained that the complainant’s injury was “inconsistent” with suicide because of the “stippling,” and Eudaley noted that the revolver’s safety mechanisms were fully operational, making accidental discharge unlikely.  Moreover, the physical evidence contradicted appellant’s representations that a robbery had occurred.  Again, appellant took the .38 revolver that fired the fatal shot and his other firearms to Kelso’s apartment, and he tried to avoid Officer Montague when he returned to his apartment.  See id. at 50.  We conclude that the verdict is not “clearly wrong and manifestly unjust” and the proof of guilt is not against the great weight and preponderance of the evidence.  See Watson, 204 S.W.3d at 414–15. Accordingly, we hold that the evidence is factually sufficient to support appellant’s conviction.

We overrule appellant’s first and second points of error.

Evidentiary Issues

In his third, fourth, fifth, sixth, and eighth points of error, appellant argues the trial court erred in admitting certain evidence because it was hearsay, irrelevant, or “not supported in the record.”

We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard.  Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006).  Therefore, we will not reverse a trial court as long as its ruling was within the “zone of reasonable disagreement.”  Id.

Hearsay

In his third point of error, appellant asserts that eleven hearsay statements made by the complainant were improperly admitted into evidence over his objection. Prior to her death, the complainant had told Diane Smith, her grandmother, that (1) she was unhappy living with appellant; (2) appellant “was mean to her”; (3) “she was afraid of him and she didn’t know what he would do if she tried to leave, but that’s what she wanted to do”; and (4) “that’s what he will do to me,” demonstrated by “put[ting] her finger to her head” as if it was a handgun.  The complainant had written in her diary: (5) “All blamed on me. Going crazy.  I actually think he’s going to kill me”; (6) “We fight and argue over everything that doesn’t count”; (7) “I moved back in with Grandma because me and him aren’t doing that good now”; and (8) Pro/con list.  “Pro: I love him . . . con: Scared of him. . . . .” The complainant had told her neighbor, Stacy Chiapetta, that (9) “she was scared” and had told Billie Simmons that (10) “she was scared” and “her boyfriend was mad, angry and throwing a fit” and (11) “she wanted to move [in] with her grandmother,” “she had moved some of her stuff,” and “she told [this to appellant].” 

In his fourth point of error, appellant asserts that his statements made while he was sitting in Officer Montague’s patrol car that “Is my girlfriend okay?,” “they kicked in the door,” and “she was shot in the head” to Investigator Swainson were inadmissible hearsay “in response to police questioning.”

A statement is hearsay if it is “other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Tex. R. Evid. 801.  Generally, hearsay is not admissible except as provided by statute or the rules of evidence.  Tex. R. Evid. 802.  A statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” or “of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed” is not excluded by the hearsay rule. Tex. R. Evid. 803(2), (3).  Further, an “admission by a party opponent,” a party’s out-of-court statement that is “offered against the party,” is not hearsay.  Tex. R. Evid. 801(e)(2).

Appellant asserts that the complainant’s statements were inadmissible as “statements of memory or belief to prove the fact remembered or believed.” The State counters that the statements were excited utterances or expressions of the complainant’s state of mind. With excited utterances, the “critical determination is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement.” Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003) (internal citations omitted).  Whereas, the state of mind exception encompasses a declarant’s statements indicating fear of or a desire to leave the defendant. Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim. App. 2000) (declarant’s statement that she was afraid of defendant was statement of her then existing state of mind).  The trial court could have reasonably concluded that the complainant’s statement that she “was scared,” uttered to Simmons while the complainant was “crying” and appellant “was mad, angry and throwing a fit,” was an excited utterance because appellant was acting angry and violent at the time of the complainant’s declaration.  See Zuliani, 97 S.W.3d at 596.  The trial court could have also reasonably concluded that the complainant’s other statements showed that her state of mind was fearful of appellant. See Fain v. State, 986 S.W.2d 666, 680 (Tex. App.—Austin 1998, pet. ref’d). Accordingly, we hold the trial court did not err in admitting these statements.

In regard to appellant’s remarks to Investigator Swainson, Swainson testified that he did not ask appellant any questions.  Thus, the trial court could have reasonably concluded that these voluntary statements made by appellant were “admissions by a party opponent.”  See Tex. R. Evid. 801(e)(2).  Additionally, in his telephone call for emergency assistance, appellant had asserted that the complainant had been shot in the head during a robbery by four black males who had broken into his apartment.  Thus, appellant’s statements were cumulative of evidence already admitted without objection.  Accordingly, we hold that the trial court did not err in admitting these statements.

We overrule appellant’s third and fourth points of error.

Relevancy

In his fifth, sixth, and eighth points of error, appellant asserts that the following evidence admitted against him is not relevant: photographs and a diagram showing illegal narcotics in his living room; weapons, other than the single one responsible for causing the complainant’s death; and Investigator Swainson’s testimony during the sentencing phase about appellant’s affiliation with the “Fresno Bulldog Gang.” 

Evidence that is not relevant is inadmissible.  Tex. R. Evid. 402.  Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence.”  Tex. R. Evid. 401.  Relevancy is determined by whether “‘a reasonable person, with some experience in the real world, believes that the particular piece of evidence is helpful in determining the truth or falsity” of any fact of consequence.  Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990) (op. on reh’g) (quoting United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir.1976)).  The evidence does not have to prove or disprove a particular fact; it is sufficient if the evidence provides “a small nudge toward proving or disproving some fact of consequence.”  Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004).  A crime scene photograph is almost always relevant because it may show the manner in which the offense occurred.  See Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999).  Nonetheless, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”  Tex. R. Evid. 403.  The opponent of the evidence must demonstrate that the negative attributes of the evidence substantially outweigh any probative value.  Montgomery, 810 S.W.2d at 377.

Appellant asserts that no “drugs were involved in the death of the complainant” and the photographs and diagram left the jury “free to speculate about appellant’s use of drugs.”  The State counters that the photographs and diagram were relevant to refute appellant’s defense that “someone shot [the complainant] during a robbery.”  Evidence of valuable narcotics left in plain view may tend to prove that a robbery was not the motive for the shooting of a complainant.  See Guevara, 152 S.W.3d at 51.  Thus, the trial court could have reasonably concluded that the photographs and diagram were relevant to disproving appellant’s alternate theory of how the complainant was killed.  See Chamberlain, 998 S.W.2d at 237.  Appellant does not explain how the negative attributes of the photographs and diagram “substantially outweigh” any probative value.  See Montgomery, 810 S.W.2d at 377.  We conclude that the photographs and diagram were not unfairly prejudicial because no evidence identified the narcotics as appellant’s. The only evidence regarding narcotics came from Diane Smith, who said the complainant had used marijuana.  We hold the trial court did not err in admitting the photographs and diagram of the scene.

The State asserts that admission of all three firearms, not just the murder weapon, recovered from Kelso’s apartment was “necessary to show appellant’s consciousness of guilt and to refute his defense” that the complainant died during “a robbery or from suicide.”  The firearms, viewed together, served to disprove appellant’s theory that the complainant was shot during a robbery because such valuable property would have been the target of any robbery.  See Guevara, 152 S.W.3d at 51.  Moreover, appellant’s concealment of the murder weapon along with the other firearms shows a consciousness of guilt, a relevant fact at issue.  Id. at 50.  Thus, the trial court could have reasonably concluded that the additional firearms were relevant. 

Appellant argues that the admission of the firearms into evidence was unfairly prejudicial because the “jury was free to speculate about Appellant’s possession of an arsenal of weapons” creating a “negative impact” that was “impossible to ignore.”  However, Kelly Kelso testified, without objection, that appellant left the three firearms in her apartment such that evidence of appellant’s “arsenal,” if any, was already before the jury.  We conclude that the admission into evidence of the additional two firearms did not create such negative impact to be unfairly prejudicial. 

Appellant asserts that, at sentencing, Investigator Swainson “did not possess the type of specialized knowledge necessary” to offer evidence of the activities of the “Fresno Bulldog Gang,” which was necessary for the jury to make “a fair evaluation of how gang membership reflects on the gang member’s character.”  See Beasley v. State, 902 S.W.2d 452, 457 (Tex. Crim. App. 1995) (evidence of defendant’s membership in gang admissible if fact finder provided with evidence of defendant’s gang membership and character and reputation of gang, not required to determine if defendant committed bad acts or misconduct, and asked only to consider reputation or character of accused.).  The State asserts that appellant’s gang affiliation was “relevant to sentencing,” specifically as to appellant’s “general reputation and character or extraneous crimes or bad acts.”

Investigator Swainson testified that appellant had a tattoo just above his right ankle depicting four dog paws along with the words “Fresno” and “Bulldog,” which identified “a gang in Fresno, California,” but he did not testify about the gang’s activities.  The trial court instructed the jury,

You may consider evidence of an extraneous . . . bad act in assessing punishment . . . However, you may consider such evidence only if the extraneous . . . bad act has been shown by the State beyond a reasonable doubt to have been committed by the defendant . . . .

Texas Code of Criminal Procedure article 37.07 governs the admissibility of evidence during the punishment stage of a non-capital criminal trial.  Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2009); Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004); Sierra v. State, 266 S.W.3d 72, 79 (Tex. App.—Houston [1st Dist.] 2008, pet. filed).  This section provides that

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 prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and . . . any other evidence of an extraneous crime or bad act.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (emphasis added).  Thus, the State has great latitude in offering evidence of “bad acts” during the punishment phase.  Id.  Relevance in this context is “more a matter of policy” than an application of Rule 401 and is better determined by “what would be helpful to the jury in determining the appropriate punishment.”  Garcia v. State, 239 S.W.3d 862, 865 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (citing Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000) and Tex. R. Evid. 401).  Evidence of gang affiliation is relevant to sentencing and may be introduced without satisfying the requirements set forth in Beasley.  Sierra, 266 S.W.3d at 79.

          Appellant’s tattoo of a “Fresno bulldog” constituted some evidence that he was a member of the gang and was admissible under article 37.07 as probative of his character, even without the State’s compliance with the requirements of Beasley.  Id. Thus, the trial court could have reasonably concluded that such evidence of appellant’s gang affiliation was relevant in the punishment phase of the trial.

          Appellant argues that the gang affiliation evidence was more prejudicial than probative because it allowed the jury “to speculate on what being a member of the ‘Fresno Bulldog Gang’ meant.”  The probative value of appellant’s gang affiliation was low since Investigator Swainson did not testify about the gang’s activities. However, its prejudice was correspondingly low for the same reason.  Significantly, the trial court instructed the jury that it could not consider the gang affiliation unless the State proved that appellant committed an extraneous bad act by such affiliation beyond a reasonable doubt.  See id. at 79–80.  The trial court’s instruction likely curtailed the jury’s consideration of appellant’s gang membership more than a Beasley instruction would have.  See id.  Accordingly, we hold that the trial court did not err in admitting evidence of appellant’s gang affiliation.

          We overrule appellant’s fifth, sixth, and eighth points of error.

Argument

          In his seventh point of error, appellant argues that the trial court erred in allowing the State in its guilt-phase argument to the jury to make certain statements because they injected the personal opinion of the prosecutor into the case, were outside the record, and shifted the burden of proof to appellant.  In his ninth point of error, appellant argues that the trial court erred in overruling his motion for mistrial during the punishment phase because the State’s argument “injected the idea that the jury should assess a ‘worth’ to the complainant’s life.”

Permissible jury argument is limited to (1) a summation of the evidence; (2) a reasonable deduction from the evidence; (3) answering argument of opposing counsel; or (4) a plea for law enforcement.  Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc).  The trial court has broad discretion in controlling the scope of closing argument.  Lemos v. State, 130 S.W.3d 888, 892 (Tex. App.—El Paso 2004, no pet.); see Herring v. New York, 422 U.S. 853, 862–63, 95 S. Ct. 2550, 2555–56 (1975).  The State is afforded wide latitude in its jury arguments and may draw all reasonable, fair, and legitimate inferences from the evidence.  See Allridge v. State, 762 S.W.2d 146, 156 (Tex. Crim. App. 1988).  The State may also argue outside the record in response to the defendant’s having done so, but may not stray beyond the scope of the invitation.  See Wilson v. State, 938 S.W.2d 57, 60–61 (Tex. Crim. App. 1996) (en banc), abrogated on other grounds, Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002). 

          Appellant first complains that the following State’s argument injected the prosecutor’s “personal opinion” into the case and was “outside the record”:

Members of the jury, we know what happened in that room; [appellant] killed [the complainant]. . . . We know from the evidence that it wasn’t a suicide and we know from the evidence that it wasn’t an accident.  Now, this investigation is maybe not perfect but we brought you all the critical, admissible evidence that you needed to render a verdict of guilty in this case.  We are not withholding the statements that [appellant] made to you because we’re trying to hide something from you. 

(Emphasis added).  A prosecutor may “argue his opinions concerning issues in the case so long as the opinions are based on the evidence in the record and not as constituting unsworn testimony.”  McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985).  Dr. Gumpeni testified that the complainant’s injury was “inconsistent” with suicide.  Firearms analyst Eudaley testified that the .38 revolver’s safety mechanisms were in proper working order such that unintentional discharge was unlikely.  Thus, even as opinions, the State’s arguments were based on permissible reasonable deductions from the evidence.  See Wesbrook, 29 S.W.3d at 115. 

          The State’s argument that it was not withholding appellant’s statements was a direct response to appellant’s trial counsel’s argument that

And the journal? Where’s the journal?  Why did they want to hide that from you?  They brought a few pages from the journal. . . . Ask yourself those questions. . . . Where are [appellant’s three] statements?  We can’t bring those in evidence.  That’s their burden.  Why are they hiding that from you?  Why didn’t they want you to know what he said?  That’s critical. . . . And they didn’t bring it to you.

Thus, this argument, too, was within the permissible scope of argument.  See id.

          Appellant next complains that the following argument by the State “shifted the burden of proof” to appellant and the State did not tell the jury that “appellant was not required to present evidence”:

In response to [appellant’s trial counsel’s] argument that we didn’t offer the entire diary or [appellant’s] statements, let me point out that [trial counsel] could have attempted to bring those to you.

Appellant’s trial counsel had argued, as noted above, that the State appeared to be “hiding” evidence from the jury.  The State’s arguments, in rebuttal of appellant’s trial counsel’s arguments, were permissible and did not shift the burden of proof to appellant.  See Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000) (State’s argument that defense could have called expert to dispute State’s evidence did not impermissibly shift burden because argument was response to defendant’s argument that State’s evidence was lacking).

          Appellant finally complains that the following arguments allowed the State to impermissibly “bring evidence outside the record to the jury”:

(1) [The caller to emergency assistance] identifies the victim as my girlfriend Amy.  Well, we all know that [appellant’s] girlfriend is [the complainant].

(2) Both of ‘em – both of the gunshot residue reports are inconclusive on [appellant] and [the complainant].  But they both have particles on their hands.  What does that mean?  That means they were both around a fired gun.  They both had particles on their bodies consistent with gunshot residue.

(3) . . . you’ve got the Medical Examiner who tells you that it is no accident and it is not suicide.

(4) You learned that [the complainant] was afraid of [appellant] . . . Arguably, the honeymoon phase of any kind of a new relationship.  You move in together, you’re exploring all kinds of new things about each other.  But not [appellant] and [the complainant], they fought over everything.

(5) . . . they live with the men that they’re afraid of, that they love.  They live with them day in and day out and they know exactly what they’re capable of. And in this case [the complainant] was trying everything she could to get back to her grandma’s house without [appellant] knowing, before she could tell him –

As to the State’s first argument, Stacy Chiapetta, the complainant’s neighbor, identified appellant as the caller on the recording of the telephone call for emergency assistance.  Thus, appellant’s contention that “[t]here has never been any evidence on the record that that’s [appellant’s] voice on the 911 tape” is without merit.  See Wesbrook, 29 S.W.3d at 115.  

As to the State’s second argument, William Davis, Manager of Trace Evidence for the Harris County Medical Examiner, testified that if the gunshot residue tests on appellant and the complainant had been positive, it could mean that a “person was in the presence of where a weapon was fired.”  He did not testify that the “inconclusive” tests indicated that appellant and the complainant had been around a fired gun.  However, other evidence previously noted affirmatively linked appellant to the murder weapon, such that any error made by the trial court in allowing the argument would be harmless.

Regarding the State’s third argument, Dr. Gumpeni did not testify that the complainant’s death was “no accident” but, rather, that he could not exclude the possibility that the complainant’s injury was inflicted as a result of an accident.  However, firearms analyst Donna Eudaley did testify that the .38 revolver’s safety mechanisms were fully functional and the firearm did not likely discharge unintentionally, even if the trigger had been “accidentally knocked.”  Thus, the State’s argument was a reasonable deduction from all the evidence admitted at trial.  See id.

Regarding the State’s fourth argument, appellant asserts that no evidence showed “that [appellant and the complainant] fought over everything.” However, the complainant’s January 14, 2008 diary entry clearly stated, “We fight and argue over everything.” Thus, the State’s argument was a reasonable deduction from the evidence. 

As to the State’s fifth argument, appellant asserts that no evidence showed that the complainant was “trying to get back to her grandmother’s house.”  Diane Smith and Investigator Swainson testified that they found the complainant’s personal belongings at Smith’s apartment after her murder.  Billie Smith testified that the complainant had told appellant that she wanted to move back in with Smith.  The State’s argument was, thus, a reasonable deduction from the evidence.

Appellant finally asserts that the State’s impermissible argument during the punishment phase that “Your verdict puts a value on [the complainant’s life]” was not cured by the trial court’s instruction to disregard and the trial court should have granted his motion for mistrial.  During his closing argument, appellant’s trial counsel suggested a twenty year sentence for appellant when he argued, “When I think about things, I am going to start off with [twenty] years.  Just say [twenty] years as a benchmark.  Is [twenty] years a really long time?”  In its closing argument, the State responded,

[Twenty] years ago, [the complainant] was born.  When you think about [twenty] years, think about the fact that [the complainant] only got to live on this Earth with her family and her friends for [twenty] years and because of [appellant], they will never get her back in their lives again. Is [twenty] years really enough? The effect of your verdict has greater impact than just on [appellant].  Your verdict puts a value on [the complainant’s] life.

Appellant’s trial counsel objected to this argument, and, after the trial court sustained the objection, asked for an instruction to disregard and moved for mistrial.  The trial court instructed the jury, “Disregard the last comment and don’t consider it for any purpose,” but did not rule on appellant’s motion.”[3] 

          A mistrial is an extreme remedy for prejudicial events occurring during the trial process.  See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007).  We review the denial of a motion for mistrial for an abuse of discretion.  Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).  In our review, we balance three factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction/punishment absent the misconduct (the strength of the evidence supporting the conviction).  See Archie, 221 S.W.3d at 700; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

          The State’s argument was improper because it asked the jury to “value” a life and did not fall within one of the four general permissible categories of argument.  See Tidmore v. State, 976 S.W.2d 724, 731 (Tex. App.—Tyler 1998, pet. ref’d).  In Tidmore, the court held improper the State’s argument that “What’s a human life worth? . . . If it were a member of your family . . . , how would you feel about ten years probation? Five years probation? Two years probation? Would you think that was enough? . . . But I think a human life . . . is certainly worth twenty years.”  Id. In this case, the State was responding to appellant’s trial counsel’s suggested twenty-year sentence for appellant. Moreover, the prejudicial effect of the comment was not significant as the statement was only one point made in an eleven page argument.  The trial court’s instruction to disregard was clear, and it further instructed the jury that “you may take into consideration all the facts shown by the evidence admitted before you in the full trial of this case.”  In addition to the evidence presented during the guilt phase, evidence presented at sentencing about appellant’s other bad acts, including his involvement in another shooting and a physical altercation, evading arrest, concealing evidence, and gang affiliation, supported the jury’s conclusion that a sentence of twenty years was insufficient.  We conclude that the State’s argument was not so egregious that, in its absence, appellant would not have received the same sentence.  Balancing the three factors, we hold that the trial court did not err in denying appellant’s motion for mistrial.

          We overrule appellant’s seventh and ninth points of error.

Jury Charge

In his tenth point of error, appellant argues that the trial court erred in instructing the jury that it could consider the prior relationship between the complainant and appellant because it “improperly expanded the 803(3) evidence [about the state of mind of the complainant] into a ‘38.36 charge.’”  See Tex. R. Evid. 803(3); Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon 2005). 

We first decide whether jury charge error exists.  Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).  If we find error, reversal is required when the defendant has properly objected to the charge and we find “some harm” to his rights, that is, “the error appearing from the record was calculated to injure the rights of defendant.”  Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994).

The trial court instructed the jury in pertinent part,

. . . you may consider all relevant facts and circumstances surrounding the death, if any, and the previous relationship existing between the accused and the deceased, together will all relevant facts and circumstances going to show the condition of the mind of the accused and/or the decedent at the time of the offense, if any.

(Emphasis added.). Appellant objected to the portion of the charge stating “the condition of the mind of the accused and/or the decedent” on the ground that there was “no article 38.36 evidence” regarding appellant, and he requested that the trial court delete the reference to “the accused and/or.”  The trial court denied the request. 

Article 38.36 provides that “[i]n all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.”  Tex. Code Crim. Proc. Ann. art. 38.36(a) (emphasis added).  Texas Rules of Evidence 803(3) allows evidence of the complainant’s state of mind.

Here, the trial court’s instruction was technically in error because it varied from the statutory language and expanded the scope of the language of article 38.36 to include the complainant’s state of mind. However, appellant’s proposed instruction, which would have instructed the jury to consider such evidence only in regard to the complainant’s state of mind, would not have cured the error.  The trial court admitted the complainant’s statements to show her state of mind and “to give a contextual relationship.”  Because article 38.36 allows evidence as to the previous relationship between appellant and the complainant and Rule 803(3) allows evidence of the complainant’s state of mind, we conclude that there could be no harm to appellant’s rights from the erroneous jury instruction.

We overrule appellant’s tenth point of error.

Conclusion

          We affirm the judgment of the trial court.

                                                                             Terry Jennings

                                                                             Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1]           See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003).

[2]           See Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon 2005).

[3]           Appellant asked for an instruction to disregard and for a mistrial in the same request.  The trial court responded with an instruction to disregard and then stated, “You may continue.”  While this may not be an explicit overruling of the motion for mistrial, we construe it as sufficient for the trial court to have implicitly overruled appellant’s motion such that he has preserved error.  See Crocker v. State, 248 S.W.3d 299, 303–04 (Tex. App.—Houston [1st Dist.] 2007, pet ref’d) (defendant preserved error where trial court answered his joint request for instruction to disregard and motion for mistrial with “Denied”).