Earl Thompson v. State ( 2009 )

Affirmed and Memorandum Opinion filed May 19, 2009

Affirmed and Memorandum Opinion filed May 19, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00480-CR

NO. 14-08-00481-CR

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EARL THOMPSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause Nos. 1129754 & 1091097

M E M O R A N D U M   O P I N I O N

A jury found appellant Earl Thompson guilty of stalking and unlawfully carrying a weapon in a liquor-licensed premises.  The jury assessed punishment for both cases at five years= imprisonment in the Texas Department of Corrections, Institutional Division, but recommended community supervision for five years in the weapon case.  The trial court sentenced appellant to five years= imprisonment for each offense, and in the weapon case the court suspended the sentence and placed appellant on community supervision for ten years.

On appeal, appellant raises two issues.  In the first, he contends the trial court erred by denying a mistrial after the State, in the jury=s presence, questioned the arresting officer regarding appellant=s post-arrest silence.  In his second issue, appellant contends the trial court erred in making an incorrect statement regarding the law of juror disqualification to the venire.  We affirm.

Background

Appellant does not challenge the legal or factual sufficiency of the evidence supporting his convictions, so we only briefly recount the facts.  On October 25, 2006, appellant began sending Suzi Hanks, a Houston radio personality, a series of strange and threatening emails.  The emails included references to guns, Jack the Ripper, and a bronze chariot; they also contained sexual innuendos.  In the emails, appellant used the names Earl Thompson, Mystery Knight, Knights Elite, Saucy Jack, Black Jack, and Jack Porns.  These emails made Hanks Avery afraid,@ and she told her supervisor about them and reported the situation to the Pasadena Police Department.  Hanks did not respond to any of the emails, which prompted appellant to make numerous unsuccessful attempts to telephone her at the radio station where she worked. 

On October 31, 2006, Hanks=s radio station planned a live broadcast from Vito=s Deck House to promote a Halloween costume contest.  When Hanks arrived, she told the promotion workers who were already there about the emails, and let them know that she was nervous about the situation.  When she walked in, she saw a man in a booth dressed in black, and he Aimmediately made eye contact with [her] and got kind of very excited.@  Concerned, Hanks told the promotion workers there was a Aguy sitting in the booth@ and asked them to keep an eye on her.

As they broadcasted, people came by to pick up koozies, t-shirts, and other promotional items.  Eventually, appellant, who indeed was the Aguy sitting in the booth,@ approached the table and introduced himself as AJack Porns.@  Hanks was Apetrified.@  She gave him a t-shirt and tried to get him to leave.  After appellant walked away, Hanks was so frightened that she went out to her car to get her gun, for which she had a concealed-handgun license.  In the parking lot, she saw a bronze Lincoln Town Car in a handicapped parking space and was reminded of the email references to a bronze chariot.  At that point, Hanks realized that the emails from Jack Porns and Earl Thompson were from the same person.

Hanks called 911, and while she was speaking to the dispatcher, she saw a police car and flagged it down.  As she was talking to the police officer, the promotion workers came outside and handed her a threatening note that appellant had given them.  While they were talking, a waitress came out and handed them a note she had found in the restroom, which was a poem about Jack the Ripper. 

The officer called for assistance, and when the other officers arrived, they detained appellant.  Appellant had a concealed-handgun permit, and officers found a loaded Derringer handgun in his pocket.  The officers arrested appellant for unlawfully carrying a weapon inside a bar, and handcuffed him with his hands behind his back.  Appellant requested that he be handcuffed in front, but his request was denied.  Later, at the jail, officers discovered that appellant had concealed a second handgun in a Apouch that covered his crotch.@  Additionally, in a black bag that appellant had with him, police found a pair of rubber gloves and a steak knife. 

Analysis

Appellant raises two issues on appeal in which he asserts: (1) the trial court erred by denying a mistrial after the State, in the jury=s presence, questioned the arresting police officer regarding appellant=s post-arrest silence; and (2) the trial court erred by making incorrect statements regarding the law of juror disqualification to the venire during voir dire.  For the reasons explained below, we overrule both issues and affirm the trial court=s judgment.

A.      Questioning Regarding Post-Arrest Silence

In his first issue, appellant complains about the following exchange between the prosecutor and police officer Jamie Sherrill:

Q [State]:  Okay.  Now, real quickly, while B B how long were you with the defendant once he was handcuffed, from the time you handcuffed him, put him in the back of your car, drove down to the jail?

A [Witness]:  Actual time, I would say approximately 30, 45 minutes.

Q:  Okay.  Is it fair to say that during that 30 to 45 minutes he had plenty of opportunities to tell you whether or not he had a gun on him?

A:  Yes.

At this point, appellant=s attorney objected and, at the bench, specifically complained that the questioning was commenting on appellant=s right to remain silent.  The prosecutor responded that he did not intend to elicit evidence regarding the defendant=s post-arrest silence, but the trial court admonished him, saying AYou really went over the line there.  I=m going to try to fix that with a motion to disregard.  Be careful in the future.@  Before the jury, the trial court sustained appellant=s objection and then gave the jury this instruction: ALadies and gentlemen, you=ll disregard the last question and the last answer that was had by both the State and this witness.@  The court denied appellant=s request for a mistrial.

We review the trial court=s denial of a motion for mistrial under an abuse-of-discretion standard.  Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).  The Court of Criminal Appeals has determined that whether a trial court should have granted a mistrial involves most, if not all, of the same considerations that attend a harm analysis.  Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007).  To determine whether a trial court abused its discretion, therefore, the court has instructed that it is appropriate to apply the test articulated in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).  Id.  The test requires a balancing of three factors: (1) the severity of the misconduct; (2) the measures adopted to cure the misconduct; and (3) the certainty of conviction absent the misconduct.  See id.

A comment on the defendant=s post-arrest silence violates the defendant=s rights under the Fifth Amendment of the United States Constitution and article I, section 10 of the Texas Constitution, as well as Texas statutory law.  See Doyle v. Ohio, 426 U.S. 610, 618 (1976); Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995); Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005).  Nevertheless, a mistrial is required only in extreme circumstances, when the prejudice is incurable.  Archie, 221 S.W.3d at 699; Austin v. State, 222 S.W.3d 801, 815 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d), cert. denied, 128 S. Ct. 1230 (2008).

Moreover, an instruction to disregard an improper comment on an appellant=s post-arrest silence is generally sufficient to cure any harm.  Ho v. State, 171 S.W.3d 295, 306 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (citing Dinkins v. State, 894 S.W.2d at 356; Hyett v. State, 58 S.W.3d 826, 833 (Tex. App.CHouston [14th Dist. 2001, pet. ref=d)); Perez v. State, 187 S.W.3d 110, 113 (Tex. App.CWaco 2006, no pet.); see also Garza v. State, 878 S.W.2d 213, 221 (Tex. App.CCorpus Christi 1994, pet. ref=d).  We presume the jury obeyed the trial court=s instruction absent evidence that would suggest otherwise.  See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987).  In determining whether a new trial is mandated despite the instruction to disregard, we look at the particular facts and circumstances to see if the trial court=s instruction sufficiently diffused the harm.  See Moore v. State, 278 S.W.3d 444, 450 (Tex. App.CHouston [14th Dist.] 2009, no pet.) (citing Hawkins, 135 S.W.3d at 77)).

Although the complained-of exchange amounted to an improper comment on appellant=s post-arrest silence, a prompt instruction to disregard was enough to fix it.  The trial court immediately sustained appellant=s objection to the exchange and promptly instructed the jury to disregard it.  The instruction was clear and direct, and the State did not comment on the matter again.  Although appellant complains that Ait was beyond the power of the court to eradicate the State=s action or to prevent the jury from being influenced,@ nothing about the exchange suggests that the trial court=s instruction was not effective. 

Besides, the State=s case against appellant was overwhelming.  The State proved that appellant carried two handguns onto a liquor-licensed premises; handguns that the police recovered and the State admitted into evidence.  The State also proved that appellant sent unsolicited bizarre and threatening emails to Hanks, that he called her repeatedly at the radio station where she worked, that he came to Vito=s to see her, and that he sent her a threatening message while at that establishment. Additionally, appellant took the stand in his defense, and, although he stated that he did not intend the emails to be threatening, he admitted that he sent them to Hanks and that he Akept calling@ her at the radio station.  He also admitted that he asked someone at Vito=s to hand Hanks the threatening note referencing Jack the Ripper, and that he had a handgun with him when he went to Vito=s.  The State also offered evidence that appellant attempted to maintain access to the second handgun that remained concealed on his person even after he was in custody.  In light of the evidence presented at trial, the one brief comment on appellant=s post-arrest silence had minimal, if any, effect on the outcome of the trial.

The trial court=s prompt instruction to disregard was sufficient, and the trial court did not abuse its discretion in denying appellant=s request for a mistrial.  We overrule appellant=s first issue.

B.      Statement to Venire

In his second issue, appellant contends that the trial court made an incorrect statement of law to the jury venire during the voir dire process.  Appellant complains of the following italicized statements the trial court made as it explained the qualifications for jury service:

You can never have been convicted of a felony in this state or any other.  You can=t be on any type of a felony probation nor awaiting trial for a felony.

You cannot have been convicted for a misdemeanor involving moral turpitude, which mainly deals with prostitution or theft cases.  You can=t be awaiting trial for a misdemeanor involving moral turpitude case or be on probation for a misdemeanor involving moral turpitude.  The reason, of course, if you=re involved in any of those types of proceedings, you may be biased, and so we try to eliminate that by saying you just can=t sit on the jury if you=re involved in that.

Specifically, appellant contends that a misdemeanor prostitution conviction is not a disqualification to serve as a juror, and the trial court=s reference to crimes of moral turpitude is a reference to a term applied in the context of impeachment, not jury qualification.  See Tex. Gov=t Code Ann. ' 62.102 (Vernon 2005 & Supp. 2008); Tex. Code Crim. Proc. Ann. art. 35.16(a)(2) (Vernon 2006); Tex. R. Evid. 609.  Thus, appellant submits, the trial court=s statements of the law concerning qualifications to serve on a jury in a criminal case were improper.

In response, the State contends that appellant did not object to the trial court=s statement, and his failure to raise the issue below precludes this court=s review.  We agree.  See, e.g., Beltran v. State, 99 S.W.3d 807, 811 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d); Oulare v. State, 76 S.W.3d 231, 233B34 (Tex. App.CAmarillo 2002, no pet.); Rabago v. State, 75 S.W.3d 561, 562B63 (Tex. App.CSan Antonio 2002, pet. ref=d). By failing to voice any objection to the trial court=s statement, appellant waived this complaint. We overrule appellant=s second issue.

We affirm the trial court=s judgments.

/s/      Jeffrey V. Brown

Justice

Panel consists of Justices Frost, Brown, and Boyce.

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