Parker, Manuel Dwayne v. State ( 2006 )

Affirmed and Memorandum Opinion filed June 1, 2006

Affirmed and Memorandum Opinion filed June 1, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00081-CR

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MANUEL DWAYNE PARKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court of

Harris County, Texas

Trial Court Cause No. 1004081

M E M O R A N D U M    O P I N I O N

A jury convicted appellant Manuel Dwayne Parker of the offense of aggravated sexual assault and sentenced him to ninety-nine years confinement in the Texas Department of Criminal JusticeCInstitutional Division.  In three issues, appellant contends the trial court abused its discretion by overruling his objections to the testimony of two witnesses, and by denying his request for a mistrial.  We affirm.

I.  Factual and Procedural Background

On January 28, 2004, R.R. and his then seventeen-year-old daughter K.R. lived in an apartment complex in southeast Houston.  At approximately 6:00 a.m., R.R. left his apartment and began walking to his car when he noticed a man that appeared suspicious walking through the complex.  Although R.R. got into his car and began to drive away, he decided to go back to the apartment check on K.R., who was seven months pregnant.  K.R. informed him that she was all right.

Shortly after R.R. left for the second time, K.R. was struck in the head with what she believed to be a hammer.  When she regained consciousness, her attacker dragged her by the neck into her room. K.R. pleaded with him to let her go to the restroom and explained that she was pregnant.  After a brief struggle, K.R=s attacker removed K.R=s clothes.  He then instructed K.R. to put his penis in her mouth.  Fearing for her life and for the life of her unborn child, K.R. complied. He next penetrated her with his penis. When the attacker left the apartment, he stated that he planned to return.  K.R. quickly opened the window to her first-floor bedroom, jumped out, and ran to a neighbor=s house.  K.R.=s neighbor called 911 and K.R. was transported to the hospital. At the hospital, a rape kit was administered and semen from K.R was collected.  Appellant=s DNA was consistent with that found in K.R=s rape kit.

Appellant was charged with one count of aggravated sexual assault.  During the guilt-innocence phase of the trial, the State called eleven witnesses, including Dr. Victoria Sloan, a psychologist with whom K.R. met after the attack.  When Dr. Sloan was asked to recount K.R=s explanation for coming to see her, appellant objected that the testimony was Acumulative and repetitive.@ The trial court overruled the objection. During her testimony, Dr. Sloan mistakenly stated that K.R was able to identify appellant at the time of the attack, and appellant objected.  The trial court sustained the objection and instructed the jury to disregard the statement. Appellant then moved for a mistrial, which the trial court denied.  At the conclusion of the trial, the jury found appellant guilty.

In the punishment phase, the State called twelve witnesses, including Officer Keith McMurtry of the Houston Police Department.  In his testimony, Officer McMurtry explained how appellant became a suspect in the present case.  Appellant objected to the relevancy of Officer McMurtry=s testimony, but was overruled by the trial court.  The jury sentenced appellant to ninety-nine years incarceration. This appeal ensued.

II.  Discussion

A.      Dr. Sloan=s Testimony

In his first issue, appellant claims the trial court abused its discretion in overruling his objection to the testimony of Dr. Victoria Sloan.  At trial, the State called K.R. to testify about the attack. When Dr. Sloan took the stand, the State asked the following:

THE STATE: Now, in October of 2004, when [K.R.] first comes to see you, I=d like for you to kind of walk us through what it is that she tells you.  But first, let me ask you, is that part of what is necessary for you to make your diagnosis?

DR. SLOAN: Yes, it is very important for me to hear the nature of the trauma and determine how severe and horrific the experience was for the individual.

THE STATE: NowCand also in October of >04, just so the jury is kind of on the same page, at that point has the perpetrator or the rapist been caught?

DR. SLOAN: No.

THE STATE: Okay.  So, if you can, tell us about what [K.R.] explained to you that happened to her and the reason that she came to see you?

DR. SLOAN: [K.R.] explained to me that she was at home, that she heard different noisesC

APPELLANT=S TRIAL COUNSEL: Excuse me, Doctor.  Judge, I=m going to object to the recitations of the events as cumulative and repetitive.

THE COURT: Overruled.

On appeal, however, appellant contends Dr. Sloan=s testimony amounted to improper bolstering of K.R.=s testimony and inadmissible victim-impact evidence. Because his trial objections do not comport with the issues he now raises on appeal, the issue is waived.  Tex. R. App. P. 33.1; Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994) (en banc).  Accordingly, appellant=s first point of error is overruled.

B.      Motion for Mistrial

In his second issue, appellant argues the trial court abused its discretion in denying his motion for mistrial.   Specifically, appellant argues that the identity of the attacker was the only issue at trial, and the following testimony Alikely left an indelible impression in the minds of the jurors@: 

DR.SLOAN:  She stated that at one point she began toCshe prepared a meal for herself and she sat, ate the meal and then afterwards went into the living room areaCwent into the living room area.  And before she knew it she experienced a very painful blow to her head. After this happened, she saw the DefendantC

APPELLANT=S TRIAL COUNSEL: Judge, I=m going to object to that.  That certainly is not the testimony.^[1]

The trial court sustained the objection.  Appellant then asked the trial court to instruct the jury to disregard Dr. Sloan=s statement and the trial court did so.  Appellant next moved for a mistrial, which was denied.

We review the trial court=s denial of a motion for mistrial under an abuse of discretion standard.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).  A mistrial will rarely be granted when improper testimony is elicited because a motion to disregard will generally cure any harm.  Id.  We presume the jury followed the court=s instruction to disregard.  Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (en banc).

It is well settled that improper remarks can be rendered harmless by an instruction to disregard by the trial judge, unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury=s mind.  Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (en banc); see also Stoker v. State, 788 S.W.2d 1, 13 (Tex. Crim. App. 1989) (en banc). This is not the case here. Although, Dr. Sloan did refer to K.R.=s assailant as Athe Defendant,@ t he reference was not so inflammatory as to undermine the efficacy of the trial court=s instruction to disregard.  See Kemp, 846 S.W.2d at 308.  Moreover, as discussed above, we presume the jury follows the court=s instructions and there is no evidence to suggest the jurors did not do so in this case.  Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (en banc). Appellant=s second issue is overruled.

C.      Officer McMurtry=s Testimony

In his third issue, appellant argues the trial court abused its discretion in overruling his objection to the relevance of Officer McMurtry=s testimony at the punishment phase of trial.  Specifically, he argues that Officer McMurtry=s testimony detailing numerous other sexual assaults and a robbery that had taken place in the area where K.R. was sexually assaulted was unfairly prejudicial^[2] and irrelevant.  Appellant presents no legal authority to support his contention as he is required to do pursuant to Rule of Appellate Procedure 38.1(h).  As such, this point of error is inadequately briefed.  Hankins v. State, 132 S.W.3d 380, 384 (Tex. Crim. App. 2004), cert. denied, 543 U.S. 944 (2004).

Even if this issue were adequately briefed, appellant=s argument still fails.  Appellant concedes that at the punishment phase of trial, evidence may be presented on any matter the court deems relevant to sentencing, including evidence of the defendant=s background and character.  Tex. Code Crim. Proc. art. 37.07 ' 3(a)(1) (West 2005).  Moreover, the State is permitted to present evidence of an extraneous crime or bad act Athat is shown by a reasonable doubt to be committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.@  Id. The Court of Criminal Appeals has held that the relevance of evidence presented during the punishment phase is determined by what is helpful to the jury.  Erazo v. State, 144 S.W.3d 487, 490 (Tex. Crim. App. 2004).

In the present case, Officer McMurtry testified that appellant became a suspect after he reviewed other sexual assault cases that were committed in the same manner and in the same neighborhood.  By the time Officer McMurtry testified, two of the victims of appellant=s previous assaults had already identified appellant as their assailant and DNA evidence was presented which linked appellant to those assaults. Officer McMurtry=s testimony simply offered a road map to the jury as to how all of the evidence came together and implicated appellant.  Accordingly, appellant=s third point of error is overruled.

For the foregoing reasons we affirm the trial court=s judgment.

/s/      Eva M. Guzman

Justice

Judgment rendered and Opinion filed June 1, 2006.

Panel consists of Justice Fowler, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant was not identified as K.R=s attacker until some time after she related her version of events to Dr. Sloan.

^[2]  At trial, appellant did not object that Officer McMurtry=s testimony was unfairly prejudicial. Therefore, we will not address that portion of appellant=s claim.  Tex. R. App. P. 33.1.