Keys, Shane Donovan v. State ( 2013 )

MODIFY, REFORM, and AFFIRM; and Opinion Filed June 25, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01040-CR
SHANE DONOVAN KEYS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F11-45726-J
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion by Justice Lang-Miers
Appellant Shane Donovan Keys was charged with aggravated robbery with a deadly
weapon. He pleaded guilty and a jury assessed punishment at 25 years in prison and a $7,500
fine. Appellant raises two issues on appeal arguing that the trial court abused its discretion when
it overruled appellant’s motion for mistrial and that the judgment should be modified to
accurately reflect that appellant pleaded guilty. We modify the trial court’s judgment to reflect
appellant’s guilty plea and affirm as modified. We issue this memorandum opinion pursuant to
Texas Rule of Appellate Procedure 47.4 because the law to be applied in this case is well settled.
BACKGROUND
During the punishment phase of appellant’s trial the State introduced into evidence
without objection judicial confessions and stipulations of evidence from a total of four
aggravated robberies, including the aggravated robbery in this case. The State also introduced
into evidence without objection appellant’s judicial confessions relating to two prior convictions
for possession of marijuana. With respect to the armed robberies, appellant’s codefendant
Lacorey Birdow testified that he and appellant robbed between 10 and 15 women of their purses
over about a two month period. Each time, Birdow drove appellant around until they found a
woman getting out of her car alone. Most of the time, after they found a target, appellant would
leave the car by himself and return with the woman’s purse. The robberies were “an adrenaline
rush” to appellant and he was “very happy” when he returned to the car with the purses. Birdow
testified that he and appellant committed the robberies because it was “fast and easy.” They used
the money from the robberies for “[g]as and liquor and weed.” Birdow was caught by the police
after pawning some items belonging to one of the robbery victims. He confessed to the robberies
and identified appellant as his accomplice.
In this case appellant pleaded guilty to the aggravated robbery of Glynette Dilworth.
Dilworth testified that she returned home from work late one evening and was approaching her
front door when a man approached her carrying a baseball bat and wearing a bandana over his
face. The man repeatedly demanded her purse and she decided to hand it over to him. The
robbery left Dilworth constantly afraid for her safety, especially at night. In addition to
Dilworth, the women whose purses were stolen in the other armed robberies to which appellant
confessed also testified for the State, including one who testified that she was struck five or six
times with a baseball bat when she did not let go of her purse, and one who testified that a knife
was put to her throat during the robbery.
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Appellant’s counsel called three witnesses to testify during the punishment phase:
appellant’s best friend, appellant’s mother, and appellant. Appellant’s best friend and his mother
generally testified that appellant deserved probation because he came from a good family, did
not have a violent or criminal past other than marijuana use, and was a good person and student
whose demeanor changed after his cousin was murdered and other members of his family died.
Appellant testified that he was a good student and was halfway through earning a degree
in electrical engineering when he was kicked out of school for marijuana possession. Appellant
took responsibility for the robberies and the only testimony he disputed was the testimony about
him using a knife in one of the robberies. Appellant testified that it was a screwdriver that “may
have been misconcepted [sic] as a knife.” At the time of the robberies he felt “lost” and was not
himself. He asked the jury for a second chance.
After the close of the evidence the jury was instructed on (1) the range of punishment of
5 to 99 years with a fine not to exceed $10,000, and (2) the availability of community
supervision. The jury returned a verdict sentencing appellant to 25 years in prison and a $7,500
fine.
APPELLANT’S MOTION FOR MISTRIAL
In his first issue appellant argues that the trial court abused its discretion by overruling
appellant’s motion for mistrial.
Appellant’s complaint on appeal arises from the following exchange during the State’s
questioning of Birdow:
Q. And you currently have five cases of aggravated robbery pending
against you; is that correct?
A. Yes, sir.
Q. And you also have one in Collin County; is that right?
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A. Yes, sir.
Q. Same cases, same victims as [appellant]; is that correct?
A. Yes, sir.
Q. And you’ve already pled guilty to those; is that correct?
A. Yes, sir.
Q. And you are going to go open to the judge for punishment; is that
correct?
A. Yes, sir.
Q. So you’ve accepted responsibility for your involvement?
A. Yes, sir.
Q. And I’m also the prosecutor on those cases as well; is that correct?
A. Yes, sir.
Q. And you understood that your pretrial recommendation was 30
years.
A. Yes, sir.
Q. And we haven’t had any—
[Appellant’s Counsel]: Judge, objection.
THE COURT: Objection sustained.
[Appellant’s Counsel]: May we approach the side of the bench,
please?
THE COURT: Yes.
(At the bench, off the record.)
(Open court, defendant and jury present.)
[Appellant’s Counsel]: Your Honor, at this time I’m going to move
for a mistrial.
THE COURT: Your request is denied.
[Appellant’s Counsel]: Ask the jury to disregard, please.
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THE COURT: The jury is instructed to disregard the last answer
that was given.
At the conclusion of Birdow’s testimony, appellant’s counsel re-urged his motion for
mistrial and argued as follows:
Your Honor, I believe when a codefendant gets up here, that is involved in
directly each of these robberies, and the State of Texas talks about plea bargain
negotiations and what the offer is, that that—that that number that was put there at
30 years is—is so damaging because it gives them a benchmark that is outside
what—this trial, that I don’t believe that the instruction that you justly gave is
enough to be able to cure what has been planted inside of their brains; that the
fella here, who is—is obviously a lesser participant but a codefendant, gets
offered 30. I believe that is—that is too much damage. I believe it’s—I believe
it’s outside the bounds, and I believe not even an instruction to the jury is going to
be able to cure that.
In response, the trial court denied the motion and explained its reasoning as follows:
The Court is ready to rule. The Court is going to deny your request for a mistrial.
I will say that, certainly, the number causes a concern for the Court; but since it
was made clear to the jury that this was a plea bargain offer and that the defendant
has not taken that plea bargain offer and, in fact, he is going open to the Court,
meaning that I will assess punishment[.] [A]dditionally, the fact that it has been
made clear to the jury that the defendant is asking for probation and the State has
offered some other number, I don’t see [ ] his desire for probation being anymore
offensive than the State's desire for 30.
Certainly, I think it could have been handled differently, but I do not believe that
it is grounds for a mistrial.
We review a trial court’s denial of a mistrial for an abuse of discretion. Webb v. State,
232 S.W.3d 109, 112 (Tex. Crim. App. 2007). To determine whether a trial court abused its
discretion we consider three factors: (1) the severity of the misconduct, (2) curative measures,
and (3) the likelihood the jury would assess the same punishment absent the misconduct. See
Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011). Asking an improper question
seldom requires a mistrial because any harm can usually be cured by an instruction to disregard.
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is required “[o]nly in
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extreme circumstances, where the prejudice is incurable[.]” Hawkins v. State, 135 S.W.3d 72, 77
(Tex. Crim. App. 2004).
In this case we cannot conclude that the trial court abused its discretion when it denied a
mistrial. First, the conduct was not severe. Appellant and the State agree that the State’s
question about the State’s offer to Birdow of 30 years in prison as part of his plea bargain was
improper. Cf. De La Rosa v. State, 627 S.W.2d 207, 216–17 (Tex. App.—San Antonio 1981, no
pet.) (“The rule has been repeatedly laid down that it is inadmissible to prove that another, jointly
or separately indicted for the same offense, has been convicted or acquitted. . . . There appears to
be no reason why proof of punishment in the one case should be admissible at the punishment
phase of the co-defendant’s trial.”). But the question was brief and the State did not emphasize it
or refer to it again. Second, the trial court took immediate curative measures; it sustained
appellant’s objection to the relevant question and instructed the jury to disregard Birdow’s
answer. Third, the record supports the punishment the jury assessed in the absence of the
question. At trial four victims testified about being robbed of their purses. One was beaten with
a baseball bat, the others were threatened. The victims also testified about the ongoing impact
the aggravated robberies had on them. The jury was instructed to assess punishment between 5
and 99 years and elected a sentence at the lower end of that range: 25 years.
We resolve appellant’s first issue against him.
JUDGMENT MODIFICATION
In his second issue appellant asks this Court to modify the trial court’s judgment to
correct the plea entered in this case. The judgment indicates that appellant pleaded not guilty to
the charge, but the record demonstrates that appellant pleaded guilty. The State agrees. This
Court has the power to modify an incorrect judgment to make the record speak the truth when we
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have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865
S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.
App.—Dallas 1991, pet. ref’d). We modify the judgment to change the notation under “Plea to
Offense” from “NOT GUILTY” to “GUILTY.”
CONCLUSION
We modify the trial court’s judgment to reflect appellant’s guilty plea and affirm as
modified.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
121040F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SHANE DONOVAN KEYS, Appellant On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-12-01040-CR V. Trial Court Cause No. F11-45726-J.
Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee Justices Moseley and Bridges participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
the notation under “Plea to Offense” is changed from “NOT GUILTY” to
“GUILTY.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 25th day of June, 2013.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
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