Crawford, Milton Ray ( 2015 )

PD-1283-15
PD-1283-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/28/2015 12:00:00 AM
Accepted 9/30/2015 1:28:35 PM
ABEL ACOSTA
No. PD-_______-15 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
__________________________________________________________
MILTON RAY CRAWFORD, Appellant
v.
THE STATE OF TEXAS
_________________________________________________________
ON PETITION FOR DISCRETIONARY REVIEW
FROM THE DECISION BY THE TENTH COURT OF APPEALS
IN CAUSE NUMBER 10-14-00127-CR
_________________________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________
Richard E. Wetzel
State Bar No. 21236300
1411 West Avenue, Suite 100
Austin, Texas 78701
(512) 469-7943 - telephone
(512) 474-5594 - facsimile
September 30, 2015 wetzel_law@1411west.com - email
Attorney for Appellant
Milton Ray Crawford
Identity of Parties and Counsel
Appellant: Milton Ray Crawford
Trial Counsel for Appellant: Mark Maltsberger
Attorney at Law
219 E. William J. Bryan Pkwy.
Bryan, TX
77803
Appellate Counsel for Appellant: Richard E. Wetzel
Attorney at Law
1411 West Ave.
Suite 100
Austin, TX
78701
Appellee: The State of Texas
Trial and Counsel for Appellee: Jason Goss
Kara Comte
Assistant District Attorneys
300 E. 26th Street
Bryan, TX
77803
Appellate Counsel for Appellee: Doug Howell
Assistant District Attorney
300 E. 26th Street
Bryan, TX
77803
Trial Judge: Hon. Travis Bryan, III
272nd District Court
Brazos County, Texas
ii
Table of Contents
Page
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . .1
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . .1
Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . .2
Question for Review . . . . . . . . . . . . . . . . . . . . . . . . .2
Argument in Support of Question for Review . . . . . . . . . . . . . . . . . . . . . . . . .2
Is TEX. CRIM. PROC. CODE art. 62.102(c) the exclusive enhancement of
punishment provision for an offender who repeatedly or habitually fails to register
as a sex offender?
Prayer . . . . . . . . . . . . . . . . . . . . . . . . .7
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . .8
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . .9
Appendix . . . . . . . . . . . . . . . . . . . . . . . . .9
iii
Index of Authorities
Page
Cases
Barker v. State, 335 S.W.3d 731
(Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . 5
Beck, Ex parte, 922 S.W.2d 181
(Tex. Crim. App. 1996) ........................5
Cheney v. State, 755 S.W.2d 123
(Tex. Crim. App. 1988) ........................4
Crawford v. State, No. 10-14-00127-CR
(Tex. App. – Waco 2015, pet. pending) . . . . . . . . . . . . . . . . . . . . . . 2, 5
Dillehey v. State, 815 S.W.2d 623
(Tex. Crim. App. 1991) ........................4
Ford v. State, 334 S.W.3d 230
(Tex. Crim. App. 2011) ........................4
Harris, Ex parte, 495 S.W.2d 231
(Tex. Crim. App. 1973) ........................6
Heath v. State, 817 S.W.2d 335
(Tex. Crim. App. 1991) ........................5
McIver, Ex parte, 586 S.W.2d 851
(Tex. Crim. App. 1979) ........................5
Miller, Ex parte, 921 S.W.2d 239
(Tex. Crim. App. 1996) ........................5
Mikel v. State, 167 S.W.3d 556
(Tex. App. - Houston [14th Dist.] 2005, no pet.) ........................6
Mizell v, State, 119 S.W.3d 804
(Tex. Crim. App. 2003) ........................6
iv
Reyes v. State, 96 S.W.3d 603
(Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . 4, 5
Rich, Ex parte, 194 S.W.3d 508
(Tex. Crim. App. 2006) ........................7
Sanders v. State, 785 S.W.2d 445
(Tex. App. – San Antonio 1990, no pet.) ........................6
State v. Mancuso, 919 S.W.2d 86
(Tex. Crim. App. 1996) ........................4
White, Ex parte, 659 S.W.2d 434
(Tex. Crim. App. 1983) ........................5
Statutes
TEX. CRIM. PROC. CODE art. 62.058(a) . . . . . . . . . . . . . . . . . . . . passim
TEX. CRIM. PROC. CODE art. 62.102(a) . . . . . . . . . . . . . . . . . . . . passim
TEX. CRIM. PROC. CODE art. 62.102(b)(2) . . . . . . . . . . . . . . . . . . . . passim
TEX. CRIM. PROC. CODE art. 62.102(c) . . . . . . . . . . . . . . . . . . . . passim
TEX. GOV’T CODE § 311.021 ........................4
TEX. GOV’T CODE § 311.026(a) ........................4
TEX. GOV’T CODE § 311.026(b) ........................4
TEX. PEN. CODE § 12.33 ........................3
TEX. PEN. CODE § 12.42(d) . . . . . . . . . . . . . . . . . . . . passim
v
Rules
TEX. R. APP. P. 9.4 . . . . . . . . . . . . . . . . . . . . . . . . .8
TEX. R. APP. P. 66.3(b) . . . . . . . . . . . . . . . . . . . . . . . . .7
vi
Statement Regarding Oral Argument
Argument is requested in the event his petition for discretionary review is
granted. The question presented on discretionary review is both legally complex
and factually intensive. Argument would be of assistance to the court in the
decisional process.
Statement of the Case
Milton Ray Crawford was indicted by a Brazos County grand jury for
committing the offense of failing to verify his sex offender registration on an
annual basis on or about March 9, 2012 (CR 6). See TEX. CRIM. PROC. CODE
arts. 62.058(a), 62.102(a), and 62.102(b)(2). The indictment additionally alleged
two prior convictions for failing to register as a sex offender for enhancement of
punishment (CR 6). See TEX. PEN. CODE § 12.42(d). A jury was selected and
sworn (9 RR 241, 10 RR 31). Crawford entered a plea of not guilty to the indicted
offense (10 RR 31). The jury found Crawford guilty of the offense alleged in the
indictment (11 RR 172). Crawford elected for the jury to assess punishment (CR
157). He entered pleas of true to the prior convictions alleged for enhancement of
punishment (11 RR 207). The jury found the prior convictions true and assessed
punishment at 85 years in prison (12 RR 109). Crawford was sentenced in open
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court (12 RR 112). The trial court certified Crawford’s right to appeal (CR 164).
Notice of appeal was timely filed (CR 196).
Statement of Procedural History
Five points of error were presented on direct appeal. The Court of Appeals
affirmed Crawford’s conviction and sentence in an unpublished opinion. Crawford
v. State, No. 10-14-00127-CR (Tex. App. – Waco 2015, pet. pending). No motion
for rehearing was filed.
Question for Review
Is TEX. CRIM. PROC. CODE art. 62.102(c) the exclusive enhancement of
punishment provision for an offender who repeatedly or habitually fails to
register as a sex offender?
Argument in Support of Question for Review
On direct appeal, Crawford claimed his sentence was illegal because it was
unlawfully enhanced under TEX. PEN. CODE § 12.42(d). Crawford was indicted
by a Brazos County grand jury for committing the offense of failing to verify his
sex offender registration on an annual basis on or about March 9, 2012 (CR 6).
See TEX. CRIM. PROC. CODE arts. 62.058(a), 62.102(a), and 62.102(b)(2). The
indictment additionally alleged two prior convictions for failing to register as a sex
offender for enhancement of punishment (CR 6). See TEX. PEN. CODE § 12.42(d).
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Crawford entered pleas of true to the prior convictions alleged for enhancement of
punishment (11 RR 207). The court charged the jury the applicable range of
punishment was 25 to 99 years or life in prison (CR 171). The jury found the prior
convictions true and assessed punishment at 85 years in prison (12 RR 109).
Crawford maintains his sentence was improperly enhanced because
enhancement was only available under the special and specific enhancement
provision for a repeat or habitual offender found guilty of a failure to register as a
sex offender under TEX. CRIM. PROC. CODE art. 62.102(c). The statute provides;
If it is shown at the trial of a person for an offense or an attempt to
commit an offense under this article that the person has previously
been convicted of an offense or an attempt to commit an offense under
this article, the punishment for the offense or attempt to commit the
offense is increased to the punishment for the next highest degree of
felony.
Here, Crawford was indicted for a third degree felony offense under TEX.
CRIM. PROC. CODE art. 62.102(a)(2). In view of his prior convictions for failing
to report as a sex offender, the applicable range of punishment was that of a second
degree felony of 2 to 20 years and a fine of up to $10,000. See TEX. PEN. CODE §
12.33. Crawford submits art. 62.102(c) represents a legislative determination that
those who repeatedly fail to register as sex offenders are subject to increased
punishment under art. 62.102(c) but not the habitual felon punishment provisions
of § 12.42(d). Indeed, this Court has recognized that in a prosecution for failing to
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register as a sex offender, a prior conviction of the same nature increases the level
of punishment to that of the next highest felony degree under art. 62.102(c). See
Ford v. State, 334 S.W.3d 230, 235 (Tex. Crim. App. 2011). These arguments
were brought to the attention of the trial court and rejected (11 RR 196-197).
It is presumed in the enactment of a statute that the entire statute and all
words in the statute are intended to be effective, and the language therein will
create a just and reasonable result. See TEX. GOV’T CODE § 311.021. If a general
provision conflicts with a specific provision, the provisions shall be construed, if
possible, so that effect is given to both. TEX. GOV’T CODE § 311.026(a); Dillehey
v. State, 815 S.W.2d 623, 632 (Tex. Crim. App. 1991); Cheney v. State, 755
S.W.2d 123, 126 (Tex. Crim. App. 1988). If the statutes are unable to be
reconciled, the specific statute will prevail as an exception to the general statute,
unless the general statute is the later enactment and the manifest intent is that the
general provisions prevail. TEX. GOV’T CODE § 311.026(b); State v. Mancuso, 919
S.W.2d 86, 88 (Tex. Crim. App. 1996). See Reyes v. State, 96 S.W.3d 603, 605
(Tex. App.—Houston [1st Dist.] 2002, pet. ref'd).
Crawford maintains art. 62.102(c) can be reconciled with § 12.42 by
following the legislative mandate within art. 62.102(c) that it is the exclusive
enhancement of punishment provision for those repeatedly convicted of failing to
-4-
register as a sex offender. Alternatively, if the statutes cannot be reconciled, then
the later enacted specific statute of art. 62.102(c) should prevail as an exception to
the general enhancement of punishment statute within § 12.42(d).
In the Court of Appeals, Crawford acknowledges there is authority against
his current argument in both Barker v. State, 335 S.W.3d 731, 738 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref'd) and Reyes, 96 S.W.3d at 605. Crawford
submits both cases were wrongly decided and the gratuitous comments concerning
the interplay between art. 62.102(c) and § 12.42(d) were dicta because the prior
enhancing convictions in both of those cases were not, as in Crawford’s case, for
failing to register as a sex offender. In Barker, punishment was enhanced with an
aggravated assault conviction and in Reyes, punishment was enhanced with
burglary and aggravated assault convictions. Id. The Court of Appeals disagreed
with Crawford’s challenges to Barker and Reyes upon finding they do not
“misstate the law.” Crawford, slip op. at 4.
A defect which renders a sentence void may be raised at any time. Ex parte
Beck, 922 S.W.2d 181 (Tex. Crim. App. 1996) (citing Heath v. State, 817 S.W.2d
335, 336 (Tex. Crim. App. 1991) (opinion on original submission)); see also Ex
parte Miller, 921 S.W.2d 239 (Tex. Crim. App. 1996); Ex parte White, 659 S.W.2d
434, 435 (Tex. Crim. App. 1983); Ex parte McIver, 586 S.W.2d 851 (Tex. Crim.
-5-
App. 1979); Ex parte Harris, 495 S.W.2d 231, 232 (Tex. Crim. App. 1973). In
fact, there has never been anything in Texas law that prevented any court with
jurisdiction over a criminal case from noticing and correcting an illegal sentence,
no matter when or how the relief was sought. Mizell v. State, 119 S.W.3d 804
(Tex. Crim. App. 2003).
Furthermore, Crawford did not forfeit his claim by pleading true to the
enhancement paragraphs at the punishment hearing. Despite the general rule that a
plea of true to an enhancement paragraph relieves the State of its burden to prove a
prior conviction alleged for enhancement and forfeits the defendant's right to
appeal the insufficiency of evidence to prove the prior conviction, there is an
exception when the record affirmatively reflects that the enhancement is itself
improper. The exception originated in Sanders v. State, in which the Fourth Court
of Appeals held that a prior non-final conviction could not be used to enhance
punishment even where the defendant had pleaded true to the enhancement
paragraph characterizing the prior offense as final. 785 S.W.2d 445, 448 (Tex.
App. – San Antonio 1990, no pet.). In the interest of justice, the court of appeals
set aside the defendant’s enhanced punishment and remanded the case to the trial
court for the proper assessment of punishment. Id. Similarly, the Fourteenth Court
of Appeals applied this exception to a case in which the offenses used for
enhancement did not occur in the sequence alleged by the indictment. Mikel v.
-6-
State, 167 S.W.3d 556 (Tex. App. - Houston [14th Dist.] 2005, no pet.) (even
though the defendant pleaded true at the punishment hearing, the court of appeals
concluded that the evidence was legally insufficient to prove the allegations in the
improper enhancement paragraph and remanded the case for a new punishment
hearing.). The Court of Criminal Appeals has expressed approval of the no
forfeiture by a plea of true opinions in Sanders and Mikel. See Ex parte Rich, 194
S.W.3d 508, 514 (Tex. Crim. App. 2006).
Here, Crawford’s sentence was improperly enhanced under § 12.42(d). A
sentence of 85 years exceeds the lawful punishment which may be imposed for an
offense punished as a second degree felony. The Court of Appeals should have
vacated Crawford’s unlawful sentence and remanded the case for a new
punishment proceeding in which a lawful sentence within the range of a second
degree felony could be imposed.
Crawford submits the question presented in an important question of state
law that has not been, but should be, settled by this Court. See TEX. R. APP. P.
66.3(b).
Prayer
Wherefore, premises considered, Milton Ray Crawford prays this Honorable
Court will grant this petition for discretionary review, reverse the judgment of the
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Court of Appeals, remand to the trial court for a new punishment hearing, or enter
any other relief appropriate under the facts and the law.
Respectfully submitted,
/s/ Richard E. Wetzel
Richard E. Wetzel
State Bar No. 21236300
1411 West Avenue
Suite 100
Austin, TX 78701
(512) 469-7943
(512) 474-5594 – facsimile
wetzel_law@1411west.com
Attorney for Appellant
Milton Ray Crawford
Certificate of Compliance
This pleading complies with TEX. R. APP. P. 9.4. According to the word
count function of the computer program used to prepare the document, the
pleading contains 1,372 words excluding the items not to be included within the
word count limit.
/s/ Richard E. Wetzel
Richard E. Wetzel
State Bar No. 21236300
-8-
Certificate of Service
This is to certify that a true and correct copy of the foregoing pleading was
mailed to counsel for the State, Doug Howell, Assistant District Attorney, at his
email address of dhowell@co.brazos.tx.us and Lisa McMinn, State Prosecuting
Attorney, at her email address of information@spa.texas.gov on this the 27th day of
September, 2015.
/s/ Richard E. Wetzel
Richard E. Wetzel
State Bar No. 21236300
Appendix
-9-
IN THE
TENTH COURT OF APPEALS
No. 10-14-00127-CR
MILTON RAY CRAWFORD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 13-04461-CRF-272
MEMORANDUM OPINION
In 1984, Appellant Milton Ray Crawford pled guilty to the offense of sexual assault
and was sentenced to fifteen years in prison. Thereafter, he had two felony convictions
for failing to register as a sex offender, the second one being in Brazos County in 2009.
Crawford registered in 2009, 2010, and 2011. In 2013, Crawford was indicted for the third-
degree felony offense of failing to comply with sex-offender registration. See TEX. CODE
CRIM. PROC. ANN. art. 62.102(b)(2) (West Supp. 2014). The indictment alleged the two
prior convictions for failing to register as enhancements.
Crawford testified that he thought that sex-offender registration was unfair to him
because it had not been required in 1984, and that in 2011, he received legal advice from
a legal-aid line that he did not have to register. He also believed that sex-offender
registration was not applicable because his conviction was not for the offense of
indecency with a child. In August of 2011, Crawford told Carla Field, who is responsible
for sex-offender registration in Brazos County, that he would no longer register, and she
told him that he was required to register for the rest of his life. Crawford admitted that
he did not register in March of 2012, which led to the instant charge. A jury found
Crawford guilty. He pled true to the two prior convictions, and the jury, after finding the
prior convictions true, assessed an 85-year prison sentence. Asserting five issues,
Crawford appeals.
In his first issue, Crawford contends that the 85-year sentence is illegal because the
punishment range was improperly enhanced under Penal Code section 12.42(d), which
provides a punishment range of 25 to 99 years or life for habitual offenders:
(d) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on
the trial of a felony offense other than a state jail felony punishable under
Section 12.35(a) that the defendant has previously been finally convicted of
two felony offenses, and the second previous felony conviction is for an
offense that occurred subsequent to the first previous conviction having
become final, on conviction the defendant shall be punished by
imprisonment in the Texas Department of Criminal Justice for life, or for
any term of not more than 99 years or less than 25 years. A previous
conviction for a state jail felony punishable under Section 12.35(a) may not
be used for enhancement purposes under this subsection.
TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014). In his second issue, Crawford
asserts that he was harmed by the improper enhancement because the jury was
Crawford v. State Page 2
improperly charged on the punishment range; instead, he asserts that enhancement
should have been to a second-degree felony.
Crawford asserts that enhancement could only be done under article 62.102(c),
which provides:
If it is shown at the trial of a person for an offense or an attempt to
commit an offense under this article that the person has previously been
convicted of an offense or an attempt to commit an offense under this
article, the punishment for the offense or the attempt to commit the offense
is increased to the punishment for the next highest degree of felony.
TEX. CODE CRIM. PROC. ANN. art. 62.102(c).
Crawford acknowledges that two of our sister courts have addressed this issue
adversely to his position but contends that they were wrongly decided or dicta. See Reyes
v. State, 96 S.W.3d 603, 605 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“As such,
article 62.10(c) [now 62.102(c)] provides a very specific exception to the general
enhancement statute, but does not otherwise preclude the application of section 12.42.”).
Appellant also argues that section 12.42(b) cannot be used to enhance
his punishment because article 62.102 includes a unique punishment-
enhancement section. Article 62.102(c) provides that an offender’s
punishment level is increased to the next highest felony if he is found guilty
of a failure-to-register offense and has previously been convicted of a
failure-to-register offense. TEX. CODE CRIM. PROC. ANN. art. 62.102(c). The
Court of Criminal Appeals recently agreed that article 62.102(c) is a
punishment-enhancement provision and does not enhance the offense level
of the charged offense. See Ford, 334 S.W.3d at 231-35. However, article
62.102(c) is not implicated in appellant’s case because his punishment was
not enhanced by a prior failure-to-register conviction, but by his prior
aggravated-assault conviction. Moreover, we reject appellant’s contention
that inclusion of subsection (c) to article 62.102 precludes the application of
section 12.42(b) to enhance a defendant’s punishment for a failure-to-
register conviction. We agree that a prior failure-to-register conviction could
have been used to enhance appellant’s punishment to a first-degree felony under
either article 62.102(c) or section 12.42(b). Thus, there is some overlap
Crawford v. State Page 3
between these statutes. However, punishment enhancement under article
62.102(c) is not merely repetitive of that provided by section 12.42. For example,
although article 62.102(c) provides for punishment enhancement to the next
highest felony degree when the defendant has one prior failure-to-register
conviction, under certain subsections of section 12.42, punishment for a failure-to-
register conviction may be enhanced only if the defendant has two prior felony
convictions. Compare TEX. CODE CRIM. PROC. ANN. art. 62.102(c), with TEX.
PENAL CODE ANN. § 12.42(a)(1), (2). Furthermore, nothing in article 62.102(c)
suggests that it is the exclusive provision governing punishment enhancement for
a failure-to-register conviction. Accordingly, we reject appellants argument
that article 62.102(c) precluded the State’s use of section 12.42(b) to enhance
his punishment. See Reyes v. State, 96 S.W.3d 603, 605 (Tex. App.—Houston
[1st Dist.] 2002, pet. ref’d) (rejecting similar argument concerning former
version of article 62.102(c) and expressing “article 62.10(c) [predecessor of
article 62.102] provides a very specific exception to the general
enhancement statute, but does not otherwise preclude the application of
section 12.42”). We conclude that appellant’s offense level for punishment
was properly enhanced from a second-degree felony to a first-degree felony
pursuant to section 12.42(b). See TEX. PENAL CODE ANN. § 12.42(b).
Barker v. State, 335 S.W.3d 731, 738 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)
(emphases added).
We are not persuaded that Barker and Reyes misstate the law. We hold that
Crawford’s sentence is not illegal and that he was not harmed. Issues one and two are
overruled.
In issue three, Crawford asserts that the trial court abused its discretion by
allowing Crawford’s 1984 sexual-assault conviction “to serve quadruple duty in his
conviction and punishment assessed.”1 Largely relying on Ballard v. State, 149 S.W.3d 693
(Tex. App.—Austin 2004, pet. ref’d), Crawford contends that “having used Crawford’s
1
Crawford alleges that the “quadruple duty” consisted of the 1984 sexual-assault conviction first serving
as the reportable conviction that gave rise to his duty to register. Second, it served as the sexually violent
offense that determined the term and frequency of his duty to register and thus made his failure to comply
a third-degree felony. The third and fourth duties were its serving as the basis on which prosecution was
brought for the two prior failure-to-register convictions.
Crawford v. State Page 4
1984 sexual assault conviction to prove that he had a duty to register as a sex offender (to
prove, in other words, that Crawford had the status of being required to register), the
State could not also use that conviction or a conviction derived therefrom to enhance his
punishment.”
But as the State points out, in Ballard, the court held that the prohibited use of the
underlying sexual-assault conviction was as one of the two prior felony convictions to
punish the appellant as a habitual offender under Penal Code section 12.42(d). Id. at 696.
Crawford’s underlying sexual-assault conviction was not used to enhance his
punishment, as had been done in Ballard. We thus overrule issue three.
Issues four and five contend that the trial court abused its discretion by failing to
grant a mistrial when the State twice allegedly made improper arguments in the
punishment phase. Proper jury argument includes: (1) summation of the evidence
presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the
opposing counsel’s argument; or (4) a plea for law enforcement. York v. State, 258 S.W.3d
712, 717 (Tex. App.—Waco 2008, pet. ref’d) (citing Jackson v. State, 17 S.W.3d 664, 673 (Tex.
Crim. App. 2000)).
The denial of a motion for mistrial, appropriate for “highly
prejudicial and incurable errors,” is reviewed for abuse of discretion.
Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). We consider
three factors when determining whether the trial court abused its discretion
in overruling a motion for mistrial during punishment: (1) the severity of
the misconduct (prejudicial effect); (2) curative measures; and (3) the
certainty of the punishment assessed absent the misconduct (likelihood of
the same punishment being assessed). Perez v. State, 187 S.W.3d 110, 112
n.1 (Tex. App.—Waco 2006, no pet.) (quoting Hawkins v. State, 135 S.W.3d
72, 77 (Tex. Crim. App. 2004)).
Crawford v. State Page 5
Id. at 716.
In issue four, Crawford alleges that the State improperly argued that the jury
should apply parole law to any sentence assessed against Crawford. In the punishment
phase, the prosecutor argued:
So, I'm going to tell you right now, we’re asking for the high end of this
sentence; and I'm going to take this time because the question will come up
during your deliberations, I anticipate, what's the difference between 99
years and life? The difference is that with the 99-year sentence, it is
mathematically possible that he could get off of parole. With life, it’s not.
Crawford objected, and the trial court sustained the objection and instructed the
jury to disregard the statement. Crawford then moved for a mistrial, which the trial court
denied.
Citing an unpublished opinion, the State contends that the argument was not
improper.2 The State alternatively argues that the instruction to disregard cured any
error. We assume without deciding that the argument was improper, but we find that,
because the trial court’s prompt instruction to disregard cured any error, denying the
motion for mistrial was not an abuse of discretion. See at 716-17. Issue four is overruled.
In issue five, Crawford asserts that the trial court abused its discretion by failing
to grant a mistrial when the State allegedly made an improper argument about Crawford
being a danger to every child he is around. In the punishment phase, the prosecutor
argued:
You know what kind of man he is. You know where he belongs.
Because on the streets of our community, he is nothing but a danger to
2
Sepulveda v. State, No. 13-07-00627-CR, 2009 WL 1677530 (Tex. App.—Corpus Christi Feb. 12, 2009, pet.
ref’d) (mem. op., not designated for publication).
Crawford v. State Page 6
every single person he comes into contact with, to every single female that
walks the streets, to every child that he’s around, he is a danger. Not only
because - -
The trial court sustained Crawford’s objection that the argument about children
was outside the evidence and promptly instructed the jury to disregard it. The trial court
then denied Crawford’s motion for mistrial.
In the punishment phase, Crawford’s niece Kim testified that she had not had an
objection to Crawford’s possibly living with her in the past and that she would not have
any concern about Crawford being around her one-year-old daughter because he had
“never tried anything with us or any other family members.” The State thus asserts that
the argument at issue was a proper response to this testimony. We agree, and we further
find that if any error occurred, it was cured by the trial court’s prompt instruction to the
jury to disregard it. Issue five is overruled.
Having overruled all of Crawford’s issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 24, 2015
Do not publish
[CRPM]
Crawford v. State Page 7