Dixon, Anthony v. State ( 2008 )

Affirmed and Memorandum Opinion on Remand filed April 22, 2008

Affirmed and Memorandum Opinion on Remand filed April 22, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01259-CR

____________

ANTHONY DIXON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 43,408

M E M O R A N D U M  O P I N I O N  O N  R E M A N D

A jury convicted appellant, Anthony Dixon, of aggravated sexual assault of a child and assessed punishment at thirty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division.  See Tex. Penal Code Ann. ' 22.021 (Vernon 2003).  This court reversed appellant=s conviction and remanded for a new trial finding the trial court committed reversible error when it failed to require the State to make an election as to which offense identified by the evidence it would rely upon for a conviction.  Dixon v. State, 171 S.W.3d 432, 438 (Tex. App.CHouston [14th Dist.] 2005), rev=d, 201 S.W.3d 731 (Tex. Crim. App. 2006).  The Court of Criminal Appeals granted the State=s petition for discretionary review, and held this court erred because the trial court=s error in failing to require the State to make an election was harmless.  Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006).  The Court of Criminal Appeals remanded the case to this court for consideration of appellant=s two remaining issues not addressed in our prior opinion.  Id.; see Dixon, 171 S.W.3d at 438 (disposing of appellant=s third and fourth points of error in light of the decision to reverse and remand). 

In his third and fourth points of error, appellant contends the trial court erred by (1) failing to grant his special requested jury charge and (2) failing to grant a mistrial because of improper prosecutorial argument.  We affirm.

Discussion

A.      Did the Trial Court Err by Failing to Grant Appellant=s Special Requested Jury Charge?

In his third issue, appellant argues the trial court erred when it denied his special requested jury charge.  During various stages of the trial, appellant moved for the State to elect which offense it would rely upon for a conviction, but the trial court ultimately denied relief.  During the charge conference, appellant re-urged his earlier motions to require the State to elect and requested the trial court rewrite the jury charge to narrow the evidence down to a specific event.  The trial court overruled these objections.  Appellant then requested a special instruction that Alimit[ed] the jury=s consideration to one case for the purpose of a conviction.@  The trial court denied this request.  Appellant argues the jury charge was improper because it did not limit the jury=s consideration to one event.  He claims the error was harmful, therefore, we should reverse and remand for a new trial.

1.       Applicable Law

The Court of Criminal Appeals has prescribed a two-step test for jury charge errors.  See Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).  An appellate court must first determine whether error exists in the charge.  Id.  Second, the appellate court must determine whether sufficient harm was caused by the error to require reversal of the conviction.  Id.  The degree of harm that must be present to require reversal of a case depends upon whether the error was preserved or unpreserved.  Id.  Concerning error that was preserved at trial by a timely and specific objection,^[1] that error must have been calculated to injure the rights of the defendant.  Id.  In other words, a defendant must have suffered some actual, rather than theoretical, harm from the error. Id. 

2.       Analysis

In the instant case, it was error for the trial court not to require the State to elect the offense it would use to convict appellant.  See Dixon, 201 S.W.3d at 734; O=Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988).  Therefore, it was error for the court to deny appellant=s special requested charge.  See Francis v. State, 36 S.W.3d 121, 122B125 (Tex. Crim. App. 2000) (holding the trial court erred in denying appellant=s special requested instruction where appellant was charged with one count of indecency with a child but the evidence at trial proved multiple incidents, and the jury charge improperly allowed the jury to consider two separate incidents in the disjunctive).

Accordingly, we must determine whether the error was harmful.  See Arline, 721 S.W.2d at 351 (stating the second step in jury charge error is a harm analysis).  In the analysis of his third issue, appellant does not specifically state why this charge error was harmful; however, in his discussion of jury charge error, he references his first point of error regarding why the trial court erred in failing to require the State to make an election.  In light of the prior decision of the Court of Criminal Appeals, we conclude this error was also harmless.  See Dixon, 201 S.W.3d at 734B35.  Because the child=s testimony did not meaningfully distinguish the various offenses, a limiting instruction would have been of no practical use and there was no risk of a non-unanimous jury verdict.  Id. at 735.  Accordingly, we find the trial court=s error in denying appellant=s special requested instruction was not calculated to injure the rights of the defendant.  We find defendant suffered no actual harm from the error.  See id. at 736 (finding the trial court=s failure to require the State to make an election did not contribute to appellant=s conviction or punishment).  We overrule appellant=s third issue.

B.      Did the Trial Court Err in Failing to Grant a Mistrial Because of Improper Prosecutorial Argument?

In his fourth issue, appellant argues the trial court erred by denying his request for a mistrial after the prosecutor made an allegedly improper jury argument during his closing statement.  Appellant complains about the following exchange:

Thank you for your time.  I know you will make the appropriate punishment in this case, but we are asking for a lot of years.  We want to make sure this doesn=t happen to anyone else.  I mean we think that=s appropriate.  You all will determine for sure what=s appropriate, but he=s already sentenced her to a life sentence for whatever psychological problems, emotional problems or for whatever nightmares she might have, living life with the knowledge that that [sic] he=s given her genital wartsB

MR. VARELA:        Objection, Your Honor, there=s no evidence that Mr. Dixon gave her that.  It is outside the record.

THE COURT:          Sustained.

MR. VARELA:        We will request an instruction to disregard.

THE COURT:          You=re instructed to disregard.

DEFENDANT=S MOTION FOR MISTRIAL

MR. VARELA:        Move for a mistrial at this point, Your Honor.

THE COURT:          Denied.

Appellant argues this comment presented prejudicial evidence not supported by the record.  Appellant argues this comment aroused the jury=s prejudices and passions, which lead it to sentence appellant to a long prison term even though he was eligible for probation.

1.       Standard of Review

When the trial court sustains an objection and instructs the jury to disregard but denies a motion for mistrial, the issue is whether the trial court abused its discretion by denying the mistrial.  Hawkins v. State, 135 S.W.3d 72, 76B77 (Tex. Crim. App. 2004).  Almost any improper argument may be cured by an instruction to disregard.  Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995).  The reviewing court puts its faith in the jury's ability, upon instruction, to consciously recognize the potential for prejudice and to discount the prejudice, if any, in its deliberations.  Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.1987). We presume the jury obeyed the trial court's instruction to disregard.  See id.  A mistrial is the trial court=s remedy for improper conduct that is so prejudicial expenditure of further time and expense would be wasteful and futile.  Hawkins, 135 S.W.3d at 77. 

The question of whether a mistrial should have been granted when a curative instruction has been given involves most, if not all, of the same considerations that attend a harm analysis.  Id.  Therefore, in cases in which constitutional rights are not implicated, courts employ a multi-factored analysis which seeks to evaluate the effect of the harm on the outcome of the trial.  See id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); Tucker v. State, 15 S.W.3d 229, 237B38 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Those factors to be considered in determining whether the trial court abused its discretion in denying a mistrial include: (1) the severity of the misconduct (magnitude of the prejudicial effect); (2) measures adopted to cure the misconduct (efficacy of any cautionary instruction by the judge); and (3) the certainty of the punishment assessed absent the misconduct.  See Hawkins, 135 S.W.3d at 77 (applying the three-factor test to improper arguments during the punishment phase); Mosley, 983 S.W.2d at 259; Tucker, 15 S.W.3d at 237B38 (applying the Mosley factors to determine if improper argument during guilt/innocence phase constituted reversal).  We do not find any constitutional rights were impinged upon by the prosecutor=s remarks in this case.  See Tucker, 15 S.W.3d at 237 (finding the trial court=s erroneous ruling regarding improper comments made during jury argument involved nonconstitutional error); Ortiz v. State, 999 S.W.2d 600, 605B06 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (finding the trial court=s error in overruling the appellant=s repeated objections to arguments outside the record constituted nonconstitutional error).  We therefore utilize the Mosley factors to determine if a mistrial should have been granted.

2.       Analysis

With respect to the first factor, we do not find the improper argument by the State to be severe.^[2] See Geuder v. State, 76 S.W.3d 133, 138 (Tex. App.CHouston [14th Dist.] 2002), overruled on other grounds by 115 S.W.3d 11 (2003) (finding a mistrial not necessary despite the statement Awho knows how many other people defendant has stolen from in other counties@ by the prosecutor in the guilt/innocence phase).  We presume the jury obeyed the trial court=s instruction to disregard.  See Gardner, 730 S.W.2d at 696.  When counsel asks for a particular instruction and the trial court accedes to the request by saying Athe jury is so instructed,@ that instruction in most cases will be considered effective to cure the harm from an improper argument.  Hawkins, 135 S.W.3d at 84.  In this case, the trial court immediately sustained appellant=s objection and instructed the jury to disregard.  We find this curative measure sufficient.  See Martinez v. State, 17 S.W.3d 677, 689B90 (Tex. Crim. App. 2000) (finding an instruction to disregard a sufficient curative measure); Geuder, 76 S.W.3d at 138 (same); Hamilton v. State, 818 S.W.2d 880, 882 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d) (same). In any event, it is unlikely the prosecutor=s comment regarding genital warts lead the jury to sentence appellant more harshly.  We find the punishment assessed was fairly certain, regardless of the prosecutor=s improper remarks, considering the applicable range of punishment, the severity of the crime, and the evidence produced during the sentencing phase proving appellant had been convicted of six other offenses in the past.  Accordingly, we hold the trial court did not abuse its discretion in finding the prosecutor=s improper comments to the jury were not so prejudicial that expenditures of further time and expense would be wasteful and futile.  We overrule appellant=s fourth issue.

Conclusion

Having overruled appellant=s two remaining issues on remand, we affirm the trial court=s judgment.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion on Remand filed April 22, 2008.

Panel consists of Justices Anderson, Frost, and Senior Justice Hudson.^*

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

---

^[1]  Based on the facts discussed above, we believe appellant sufficiently preserved error.

^[2]  Appellant argues this case is similar to Bennett v. State, in which this court reversed a conviction for aggravated sexual assault of a child due to the trial court=s failure to grant a mistrial after improper prosecutorial comments.  Bennett v. State, 677 S.W.2d 121, 125B26 (Tex. App.CHouston [14th Dist.] 1984, no pet.).  However, in Bennett, this court found twenty-four objections by appellant during the prosecutor=s argument at the punishment stage of trial, thirteen of which were sustained by the trial court.  Id. at 126.  This court found error based on the number and seriousness of the prosecutor=s improper remarks.  Id.  The instant case is distinguishable from Bennett.  Here, the prosecutor made one comment, which was not as prejudicial or harmful as the myriad of comments made in Bennett.

^*  Senior Justice J. Harvey Hudson sitting by assignment.