Wayne Edward Lindsey v. State

Opinion issued June 9, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00143-CR
———————————
WAYNE EDWARD LINDSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1426650
MEMORANDUM OPINION
A jury convicted appellant, Wayne Edward Lindsey, of the second-degree
felony offense of aggravated assault and assessed his punishment at twenty years’
confinement.1 In three issues, appellant contends that: (1) the trial court erred by
refusing to admit evidence of the complainant’s fourteen prior convictions; (2) the
trial court erroneously denied his request for a jury instruction on the right to use
deadly force to prevent the complainant from fleeing after allegedly trying to rob
him; and (3) the trial court erroneously denied his motions for mistrial made during
the State’s punishment-phase argument when the prosecutor, on four occasions,
commented on his failure to testify.
We affirm.
Background
Torreon Wells, his mother, Lakeisha Scruggs, and Dequalin Backstrom, the
complainant, all lived in the same house together. On April 29, 2014, Wells,
Scruggs, and Backstrom drove Backstrom’s car over to appellant’s house because
appellant was a mechanic and Backstrom was experiencing trouble with his car.
Appellant and Backstrom knew each other and “were friendly.” Appellant spent
about thirty minutes looking at Backstrom’s car, told him what the problem was, and
then started discussing his fee with Backstrom. Appellant requested $50 as payment,
but Backstrom thought that price was too high because appellant did not actually do
anything to fix the problem. Backstrom eventually told appellant that he only had
1
See TEX. PENAL CODE ANN. § 22.02(a)(1) (Vernon 2011).
2
$35 with him at the time and that he would need to come back later with the rest of
the money.
Appellant started yelling at Backstrom, who, after listening to appellant yell
for several minutes, hit appellant in the face with his fist. Wells testified that, after
Backstrom punched appellant, appellant said, “I got something for you,” and went
inside his garage. While appellant was inside, Backstrom got into his car and started
backing out of appellant’s driveway. Appellant returned and pointed a gun at
Backstrom through the windshield. Appellant ordered Backstrom out of the car and
started walking around to the driver’s side door. Backstrom started to get out of the
car, but appellant hit him in the jaw and on the top of the head with the gun, and
Backstrom sat back down in the driver’s seat. Wells testified that as appellant started
to hit Backstrom again, the gun went off, shooting Backstrom in the lower jaw.2
Wells stated that Backstrom did not say anything and was not being aggressive
at the time of the shooting, but was instead trying to get away from appellant. Wells
also testified that appellant no longer appeared concerned about the money that
Backstrom owed him, and appellant stated, “Don’t you [ever] put your hands on me
again. I hope you die.” When Scruggs requested that appellant retrieve a towel to
2
The bullet traveled through Backstrom’s jaw and neck and lodged in his shoulder.
Backstrom was paralyzed as a result of the shooting, and he resides at a nursing
home.
3
help stop Backstrom’s bleeding after the shooting, appellant refused. Wells found a
towel in the garage and held it to Backstrom’s neck until an ambulance arrived.
Lakeisha Scruggs testified that she drove to appellant’s house after a dentist
appointment, and when she arrived, appellant and Backstrom were getting along.
The men started arguing when appellant requested $50 for his services and
Backstrom informed him that he only had $35 with him. Both appellant and
Backstrom cursed at each other, with appellant waving his hands in Backstrom’s
face, and then Backstrom punched appellant. Appellant then ran into his garage and
returned with a gun, which he pointed at Backstrom, who was trying to leave.
Scruggs saw appellant open the driver’s side door to Backstrom’s car and hit
Backstrom with the gun three times before the gun went off. Scruggs could not see
Backstrom’s hands during this encounter, but she testified that she had no doubt that
appellant was holding the gun when it discharged. Appellant refused to call 9-1-1,
refused to get Backstrom a towel, and stated, “I’m not getting shit. He can bleed to
death,” before sitting down in his garage.
Milton Atterberry, appellant’s next-door neighbor, also witnessed portions of
the altercation. Atterberry walked over to appellant’s house while he was looking at
Backstrom’s car, and he heard appellant explain to Backstrom that he needed a
specific part. Backstrom declined to purchase the part, but Atterberry stated that
both men were still getting along at this point. Atterberry returned to his house for
4
about five to ten minutes, and when he came back outside, appellant and Backstrom
were “talking smack” to each other, but Atterberry did not get the impression that
they were about to fight. Atterberry went inside his house again for about fifteen
minutes, and, this time, when he came back outside, he saw Backstrom hit appellant.
He saw Backstrom get in his car and try to leave, and then he saw appellant come
out of his garage, holding a gun and pointing it at Backstrom. Atterberry heard
appellant order Backstrom out of the car and demand, “Where is my goddamn
money?” Atterberry saw appellant hit Backstrom twice on the head with the gun,
which caused Backstrom to fall down, and then, when appellant tried to hit
Backstrom a third time, Backstrom grabbed a hold of the gun and the gun discharged.
He testified that appellant called 9-1-1, but he otherwise did not attempt to help
Backstrom after the shooting.
Cozetta Backstrom, Dequalin Backstrom’s mother, testified about what
Backstrom was like before and after the shooting. When asked “how was your son
physically and mentally” before the shooting, she testified:
Before the accident, my son is very strong. He’s very strong, he works,
he does what he’s supposed to do. He’s a father. He’s a father. He
takes care of my grandbaby. He’s 8 years old. And he takes care of
my grandbaby. He goes to work. He’s responsible.
She testified that since the shooting, Backstrom resides at a long-term nursing home.
Backstrom is paralyzed, has a feeding tube, is unresponsive, and is in a “persistent
vegetative state.”
5
After Cozetta Backstrom testified on direct examination, appellant’s counsel
sought to introduce evidence of Backstrom’s fourteen prior convictions, dating back
to 1999. Defense counsel stated that he intended to ask Cozetta Backstrom on cross-
examination if it was true that her son had had “quite a few instances where he’s run
afoul of the law.” The State objected to relevance, and the trial court sustained the
objection.
At the charge conference, defense counsel requested an instruction informing
the jury that use of deadly force to prevent robbery is justified, and he argued that
appellant was entitled to this instruction because Backstrom committed the offense
of theft of services when he tried to leave appellant’s house without paying appellant
for his work. The trial court refused to include this instruction. The charge did
include an instruction on self-defense and an instruction on the use of deadly force.
Ultimately, the jury convicted appellant of aggravated assault.
At the punishment phase, the State offered evidence that appellant had a prior
felony conviction for delivery of a controlled substance and re-offered all of the
evidence from the guilt-innocence phase. Appellant did not testify on his own
behalf, either during the guilt-innocence phase or during the punishment phase.
During the State’s closing argument, the prosecutor stated, “In order to edge towards
the lower end of punishment, wouldn’t you have to exhibit remorse?” Defense
counsel objected to this statement as “an obvious comment on [his] client’s failure
6
to testify.” The trial court sustained the objection and instructed the jury to disregard
the prosecutor’s statement, but the court refused to grant appellant’s motion for
mistrial. The prosecutor later stated that appellant “is the type of person who doesn’t
take responsibility, who thinks what he did was not just okay or justified—” and
defense counsel again objected to this statement as a comment on appellant’s failure
to testify. The trial court again sustained the objection and gave an instruction to
disregard, but did not grant appellant’s motion for mistrial.
The prosecutor later asked, “What kind of things move [the punishment
verdict] towards the bottom range? Is it being contrite and apologetic?” Defense
counsel objected to this statement as a comment on appellant’s failure to testify, and
the trial court sustained the objection and gave an instruction to disregard but did not
grant appellant’s motion for mistrial. The prosecutor also stated, “[Y]ou and I know
this man does not feel bad. He does not feel guilty. He doesn’t wish it had happened
differently.” The trial court again sustained defense counsel’s objection and gave an
instruction to disregard, but the court did not grant appellant’s motion for mistrial. 3
The jury ultimately assessed appellant’s punishment at twenty years’
confinement. This appeal followed.
3
With respect to this statement, the trial court instructed the jury to “disregard the
last statement if it was taken in the present tense.” The prosecutor then stated, “He
does not feel bad or guilty as he sits in his garage and waits for the police to arrive.
That’s who this defendant was. That is the man that you are punishing. Those are
his actions. That’s what he needs to be held accountable for.”
7
Exclusion of Evidence
In his first issue, appellant contends that the trial court erred by refusing to
admit evidence that Backstrom had fourteen prior felony convictions. Specifically,
appellant argues that the trial court erred by refusing to allow him to question
Backstrom’s mother about her knowledge of Backstrom’s prior convictions because
this evidence was admissible under Rule of Evidence 609.
We review the trial court’s ruling on the exclusion of evidence for an abuse
of discretion. See Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.
2007); Turner v. State, 443 S.W.3d 328, 332 (Tex. App.—Houston [1st Dist.] 2014,
pet. ref’d). We will uphold the trial court’s evidentiary ruling as long as it falls
within the zone of reasonable disagreement and is correct under any theory of law
applicable to the case. Winegarner, 235 S.W.3d at 790; Turner, 443 S.W.3d at 332.
Generally, when attacking the credibility of a witness, the trial court may
admit evidence of prior criminal convictions only if the crime was a felony or
involved moral turpitude and the court determines that the probative value of the
conviction outweighs its prejudicial effect. See TEX. R. EVID. 609(a), 61 TEX. B.J.
374, 390 (Tex. & Tex. Crim. App. 1998, amended 2015);4 Turner, 443 S.W.3d at
4
Effective April 1, 2015, the Texas Supreme Court adopted amendments to the Texas
Rules of Evidence. See 78 TEX. B.J. 42 (Tex. 2015). The revisions to Rule 609(a)
were stylistic and do not affect the substance of the rule. All further citations to
Rule 609(a) refer to the rule as it existed at the time of appellant’s trial.
8
332. Rule 609, however, explicitly applies to a party’s attempts to attack the
credibility of a “witness.” See TEX. R. EVID. 609(a) (“For the purpose of attacking
the credibility of a witness, evidence that the witness has been convicted of a
crime . . . .”). Appellant cites no authority for the proposition that this rule applies
to attack the credibility of a complainant who, as here, does not testify as a witness
at trial.
Even if Rule 609 permitted appellant to use a complainant’s prior convictions
for impeachment purposes when the complainant does not testify, to the extent
appellant contends that admission of Backstrom’s prior convictions was necessary
“to blunt the false impression [created by Cozetta Backstrom’s testimony] the jury
had regarding [Backstrom’s] character,” this argument is unavailing. An exception
to Rule 609 applies when a witness “makes statements concerning his past conduct
that suggest he has never been arrested, charged, or convicted of any offense.”
Turner, 443 S.W.3d at 332 (quoting Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim.
App. 1993)); see also Winegarner, 235 S.W.3d at 790 (stating that exception applies
when witness “leaves a false impression with respect to his prior behavior or the
extent of his prior troubles with the law”). “If the witness creates a false impression
of law-abiding behavior, he ‘opens the door’ on his ‘otherwise irrelevant past
criminal history and opposing counsel may expose the falsehood.’” Turner, 443
S.W.3d at 332 (quoting Delk, 855 S.W.2d at 704). This exception is a “narrow one,
9
and any statements that are alleged to have left a false impression must be viewed in
context.” Grant v. State, 247 S.W.3d 360, 367 (Tex. App.—Austin 2008, pet. ref’d).
For this exception to apply, the witness must “unambiguously create a false
impression of law-abiding behavior, thereby permitting introduction of evidence of
past criminal history.” Hernandez v. State, 351 S.W.3d 156, 160 (Tex. App.—
Texarkana 2011, pet. ref’d); Grant, 247 S.W.3d at 367 (“In order, however, to open
the door to the use of prior crimes for the purposes of impeachment, the witness must
do more than just imply that he abides by the law, and must in some way convey the
impression that he has never committed a crime.”) (quoting Lopez v. State, 990
S.W.2d 770, 777 (Tex. App.—Austin 1999, no pet.)).
Here, the State asked Cozetta Backstrom, “[P]rior to April 29th, 2014, [the
day of the shooting,] how was your son physically and mentally?” Cozetta
responded:
Before the accident, my son is very strong. He’s very strong, he works,
he does what he’s supposed to do. He’s a father. He’s a father. He
takes care of my grandbaby. He’s 8 years old. And he takes care of
my grandbaby. He goes to work. He’s responsible.
The State did not ask Cozetta whether her son was a law-abiding man or whether he
had ever been in trouble with the law. Instead, the State asked about Backstrom’s
physical and mental capabilities before the shooting in order to draw a contrast with
his capabilities after the shooting as a result of his injuries. Cozetta responded that,
before the shooting, Backstrom was strong, he could work, and he could take care
10
of his son. Cozetta later testified that, as a result of the shooting, Backstrom was
paralyzed and in a “persistent vegetative state” in a local nursing home. Cozetta’s
testimony did not “unambiguously create a false impression of law-abiding
behavior” or “convey the impression that [Backstrom] has never committed a
crime.” See Hernandez, 351 S.W.3d at 160; Grant, 247 S.W.3d at 367. Her
testimony thus did not create a false impression such that appellant could introduce
Backstrom’s prior convictions in order to correct that impression. See Grant, 247
S.W.3d at 367 (noting that this exception to Rule 609 is “narrow”).
We hold that the trial court did not abuse its discretion by excluding evidence
of Backstrom’s prior felony convictions.
We overrule appellant’s first issue.
Jury Instruction on Right to Use Deadly Force
In his second issue, appellant contends that the trial court erred by denying his
request for a jury instruction on the right to use deadly force to prevent Backstrom
from fleeing after trying to rob him.
We use a two-step process in reviewing jury charge error. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). First, we determine whether error exists
in the charge. Id. If error does exist, we review the record to determine whether the
error caused sufficient harm to require reversal of the conviction. Id. When the
defendant properly objected to the error in the charge, reversal is required unless the
11
error was harmless. Id.; see also Starks v. State, 127 S.W.3d 127, 133 (Tex. App.—
Houston [1st Dist.] 2003, pet. ref’d, untimely filed) (providing that, to preserve error
in jury charge, defendant must object or request specific charge).
When a defensive theory is raised by the evidence from any source, the theory
must be submitted to the jury. See Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim.
App. 1997). If the defense is supported by the evidence, the defendant is entitled to
an instruction on that defense, regardless of whether the supporting evidence is
strong, feeble, unimpeached, or contradicted, and even when the trial court is of the
opinion that the supporting evidence is not credible. See Shaw v. State, 243 S.W.3d
647, 658 (Tex. Crim. App. 2007); see also Walters v. State, 247 S.W.3d 204, 209
(Tex. Crim. App. 2007) (holding same). “A defendant need not testify in order for
a defensive issue to be sufficiently raised.” Johnson v. State, 271 S.W.3d 359, 362
(Tex. App.—Beaumont 2008, pet. ref’d). Defensive issues may be raised by the
testimony of any witness, including ones called by the State. Id. We review a trial
court’s decision not to include an instruction on a defensive issue in the charge for
an abuse of discretion, and we view the evidence in the light most favorable to the
defendant’s requested submission. See Bufkin v. State, 207 S.W.3d 779, 782 (Tex.
Crim. App. 2006); Love v. State, 199 S.W.3d 447, 455 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d).
Penal Code section 9.41 provides:
12
(a) A person in lawful possession of land or tangible, movable
property is justified in using force against another when and to
the degree the actor reasonably believes the force is immediately
necessary to prevent or terminate the other’s trespass on the land
or unlawful interference with the property.
(b) A person unlawfully dispossessed of land or tangible, movable
property by another is justified in using force against the other
when and to the degree the actor reasonably believes the force is
immediately necessary to reenter the land or recover the property
if the actor uses the force immediately or in fresh pursuit after
the dispossession and:
(1) the actor reasonably believes the other had no claim
of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using
force, threat, or fraud against the actor.
TEX. PENAL CODE ANN. § 9.41 (Vernon 2011). Penal Code section 9.42 provides a
defense for the use of deadly force to protect property:
A person is justified in using deadly force against another to protect
land or tangible, movable property:
(1) if he would be justified in using force against the other under
Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force
is immediately necessary:
(A) to prevent the other’s imminent commission of
arson, burglary, robbery, aggravated robbery, theft
during the nighttime, or criminal mischief during
the nighttime; or
(B) to prevent the other who is fleeing immediately after
committing burglary, robbery, aggravated robbery,
or theft during the nighttime from escaping with the
property; and
(3) he reasonably believes that:
13
(A) the land or property cannot be protected or
recovered by any other means; or
(B) the use of force other than deadly force to protect or
recover the land or property would expose the actor
or another to a substantial risk of death or serious
bodily injury.
Id. § 9.42 (Vernon 2011). The Penal Code defines “deadly force” as “force that is
intended or known by the actor to cause, or in the manner of its use or intended use
is capable of causing, death or serious bodily injury.” Id. § 9.01(3) (Vernon 2011).
Here, appellant argues that he was entitled to an instruction on the defense of
use of deadly force to protect property because “Backstrom arguably committed the
offense of robbery by striking [a]ppellant in the face with his fist and attempting to
flee the scene without paying for [a]ppellant’s services.” The plain language of both
sections 9.41 and 9.42 provides a justification for using force or deadly force to
protect “land or tangible, movable property.” See id. §§ 9.41–.42; cf. Sparks v. State,
177 S.W.3d 127, 132 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding that
trial court erred in refusing defendant’s requested defense-of-property instruction
when record contained evidence that complainant pointed shotgun at defendant and
demanded money from him). Even if Backstrom committed robbery by trying to
flee appellant’s property without paying appellant for his efforts in determining the
trouble with Backstrom’s car, this case involves, as appellant acknowledges in his
appellate brief, theft of appellant’s services, which are intangible. The record
14
contains no evidence that Backstrom attempted to steal “tangible, movable property”
from appellant.
We conclude that, under the facts of this case, neither section 9.41 nor 9.42
applies to provide a justification for appellant’s actions. We therefore hold that the
trial court properly refused to submit a jury instruction on use of deadly force to
protect property.
We overrule appellant’s second issue.
Comments on Failure to Testify
In his third issue, appellant contends that the trial court erred by failing to
grant his motions for mistrial made when the State, on four occasions during the
prosecutor’s punishment-phase argument, commented on appellant’s failure to
testify.
We review a trial court’s denial of a motion for mistrial for an abuse of
discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). “A mistrial
is an appropriate remedy in ‘extreme circumstances’ for a narrow class of highly
prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim.
App. 2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)).
A prompt instruction to disregard from the trial court is usually enough to cure the
error and avoid the need for a mistrial. Wesbrook v. State, 29 S.W.3d 103, 115–16
(Tex. Crim. App. 2000). Whether an error requires a mistrial must be determined
15
by the particular facts of the case. Ladd, 3 S.W.3d at 567. To determine whether
the trial court abused its discretion by denying a mistrial due to a prosecutor’s
statements during argument, we balance three factors: (1) the severity of the
misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks);
(2) the measures adopted to cure the misconduct (the efficacy of any cautionary
instruction by the judge); and (3) the certainty of conviction absent the misconduct
(the strength of the evidence supporting the conviction). Carballo v. State, 303
S.W.3d 742, 748 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Archie v.
State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007)).
A comment on the defendant’s failure to testify violates the defendant’s state
and federal constitutional rights against self-incrimination, as well as the provisions
of Code of Criminal Procedure article 38.08. Id. at 747–48; see U.S. CONST. amend.
V; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08 (Vernon 2005)
(“[T]he failure of any defendant to so testify shall not be taken as a circumstance
against him, nor shall the same be alluded to or commented on by counsel in the
cause.”). The Court of Criminal Appeals has held:
To violate the right against self-incrimination, the offending language
must be viewed from the jury’s standpoint and the implication that the
comment referred to the defendant’s failure to testify must be clear. It
is not sufficient that the language might be construed as an implied or
indirect allusion. The test is whether the language used was manifestly
intended or was of such a character that the jury would necessarily and
naturally take it as a comment on the defendant’s failure to testify. In
applying this standard, the context in which the comment was made
16
must be analyzed to determine whether the language used was of such
a character.
Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007) (quoting Bustamante v.
State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001)); Carballo, 303 S.W.3d at 748.
We evaluate objectionable arguments on a case-by-case basis “for what it would
‘necessarily and naturally’ mean to a jury when taken in the full context of its
utterance.” Cruz, 225 S.W.3d at 549.
A prosecutor’s argument concerning whether a defendant is presently
remorseful as he sits in the courtroom at trial is “a circumstance that only [the
defendant] could have testified to,” it “highlight[s] for the jury the [defendant’s]
failure to take the stand and claim present remorse,” and “a jury is not entitled to
infer as much from its impression of his courtroom demeanor.” Snowden v. State,
353 S.W.3d 815, 823–24 (Tex. Crim. App. 2011); Dickinson v. State, 685 S.W.2d
320, 324–25 (Tex. Crim. App. 1984) (holding that prosecutor’s comments relating
to defendant’s in-court lack of “remorsefulness,” “lack of showing sorrow for the
victim,” and “failure to exhibit shamefulness . . . amounted to directing the jury’s
attention to the failure of the appellant to testify to these various mental states,” and
because only defendant could have given testimony concerning those mental states,
statements constituted impermissible comment on defendant’s failure to testify). If,
however, the prosecutor’s statements infer that the defendant experienced no
remorse at the time of the offense and this inference is supported by the record, the
17
argument is permissible. Snowden, 353 S.W.3d at 824; see also Randolph v. State,
353 S.W.3d 887, 893 (Tex. Crim. App. 2011) (“[I]f evidence in the record supports
the prosecutor’s remarks, there is no error.”).
Here, appellant argues that the prosecutor, during the State’s punishment-
phase argument, commented on his failure to testify on four occasions. Specifically,
appellant contends that the prosecutor improperly commented on his failure to testify
when she rhetorically asked, “In order to edge towards the lower end of punishment,
wouldn’t you have to exhibit remorse?” The prosecutor later stated that appellant
“is the type of person who doesn’t take responsibility, who thinks what he did was
not just okay or justified . . . .” The prosecutor also rhetorically asked, when
suggesting facts the jury should consider in deciding punishment, “What kind of
things move [the punishment verdict] towards the bottom range? Is it being contrite
and apologetic?” Finally, the prosecutor stated, “[B]ut you and I know [appellant]
does not feel bad. He does not feel guilty. He doesn’t wish it had happened
differently.” On each occasion, defense counsel objected, requested an instruction
to disregard, and moved for a mistrial. On each occasion, the trial court sustained
the objection and instructed the jury to disregard the statement, but the court denied
appellant’s motions for mistrial.
Appellant did not testify in this case, either during the guilt-innocence or the
punishment phase. However, Wells, Scruggs, and Atterberry, who all witnessed the
18
shooting, testified concerning appellant’s actions and statements after he shot
Backstrom. Wells testified that, after the shooting, Scruggs requested that appellant
retrieve a towel from his garage so she could attempt to stop Backstrom’s bleeding,
but appellant refused. Scruggs testified that appellant refused to call 9-1-1, refused
to find a towel, and stated, “I’m not getting shit. He can bleed to death,” before
sitting down in his garage. Atterberry testified that appellant was the one who called
9-1-1, but he testified that, other than making that phone call, appellant did not
attempt to help Backstrom. After the trial court instructed the jury to disregard the
last of the prosecutor’s challenged statements “if it was taken in the present tense,”
the prosecutor stated, “[Appellant] does not feel bad or guilty as he sits in his garage
and waits for the police to arrive. That’s who this defendant was. That is the man
that you are punishing. Those are his actions. That’s what he needs to be held
accountable for.”
Looking at the prosecutor’s statements in the context in which they were
made, as we must, we conclude that the language the prosecutor used was not “of
such a character that the jury would necessarily and naturally take it as a comment
on the defendant’s failure to testify.” See id. at 548 (emphasis added). The
prosecutor did not specifically comment on appellant’s apparent lack of remorse
based on his courtroom demeanor. Instead, the prosecutor focused on appellant’s
actions at the time of the offense. There was evidence in the record that appellant
19
made, at best, a minimal effort to help Backstrom following the shooting by calling
9-1-1, although this testimony was disputed and two witnesses testified that
appellant refused to call 9-1-1. Three witnesses agreed that appellant refused to help
Scruggs tend to Backstrom while waiting for the ambulance to arrive. The evidence
also reflected that appellant demonstrated indifference to Backstrom’s injuries,
telling Scruggs, “He can bleed to death,” while refusing to assist her. Appellant’s
own actions and statements at the time of the offense, testified to without objection
during the guilt-innocence phase, thus demonstrated his lack of remorse and
contrition for the shooting. See Snowden, 353 S.W.3d at 824 (“But the inference
that the appellant experienced no remorse at the time that he punched Jennings in
the stomach was circumstantially supported by the record, and it was only this lack
of remorse that the prosecutor re-emphasized in her later punishment-phase
summation.”); see also Cruz, 225 S.W.3d at 549–50 (“[I]t is clear from the record
that the prosecutor’s statements to the jury referred to the appellant’s own written
statement which had been admitted into evidence and were therefore not a comment
on the appellant’s failure to testify.”).
We conclude that the challenged statements by the prosecutor were not
impermissible comments on appellant’s failure to testify. We therefore hold that the
trial court did not err by refusing to grant a mistrial based on these statements.
We overrule appellant’s third issue.
20
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
Do not publish. TEX. R. APP. P. 47.2(b).
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