Ruben Guerrero Gonzalez v. State

Affirmed and Memorandum Opinion filed January 31, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-00995-CR
RUBEN GUERRERO GONZALEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1269771
MEMORANDUM OPINION
A jury convicted appellant, Ruben Guerrero Gonzalez, of aggravated assault
of a family member and assessed punishment at twenty years‘ incarceration in the
Texas Department of Criminal Justice, Institutional Division. In five issues,
appellant appeals his conviction and sentence. We affirm.
I. BACKGROUND
A. Guilt-Innocence
The following evidence was presented at the guilt-innocence phase of trial.
Anna Vasquez, the complainant, had been married to appellant for sixteen years
until their divorce in 2007. Anna and appellant had four children. Anna was
planning a ―quinceanera‖—a fifteenth birthday party—for their daughter, Isabel.
On June 19, 2010, appellant called Anna and told her to come to his house because
he was going to give her money for Isabel‘s party. Appellant was not there when
Anna arrived, but he arrived about ten minutes later. Appellant asked Anna to go
to the bank with him. Appellant asked Anna to ride in his car, but she had
―doubts‖ and was afraid and chose to drive separately in her car.
On the way to the bank, appellant pulled into the driveway of a construction
site. Anna parked next to appellant, and got out of her car. Appellant said he
wanted to talk to Anna and asked her to sit in his car. Anna responded that she
could hear him from outside the car. Appellant told Anna that he wanted her to
come back to him, but Anna said she would not. Appellant became furious, and
his face changed: ―He looked as though evil had just confronted him.‖ Anna
walked quickly back to her car and got in. When she started to put the car in
reverse, she saw that appellant was sitting in the passenger seat.
Appellant said to Anna, ―You dog, with how many have you cheated on
me.‖ Appellant raised his t-shirt and pulled out a black object, which Anna later
realized was a gun. Appellant put the gun against her right side and began to
shoot. Anna tried to block the bullets with her arm. Appellant said, ―They say the
ones that are going to die, they tell the truth. . . . Tell me, with how many you have
cheated on me, bitch.‖ Anna asked appellant to take her to the hospital. She
believed that she was going to die, and she was afraid her family would not know
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where her body was. Appellant agreed to take her to the hospital if she did not say
anything and if she promised to go back to him. Appellant laid Anna on the
backseat, but she felt like she was choking. She asked appellant to sit her up, and
she hugged the seat. Appellant threw the gun away in a trash can at the hospital
before they pulled into the driveway and she was taken out of the car.
Appellant went inside and informed hospital personnel that he had seen
Anna on the side of road and drove her to the hospital. Appellant identified
himself as Pedro Guerrero. When asked by hospital personnel and the police,
appellant said that he did not know Anna, nor did he mention that Anna was his
former wife. When Officer Woodrow Tomkins asked Anna, who was in and out of
consciousness, if she knew who had shot her, she ―kind of muttered no no, like she
was afraid of me or something.‖
At this point the police treated appellant as a witness. Officer Gabriel
Olvera took appellant back to where appellant had left his car. Olvera looked for
evidence, but did not find any. Olvera followed appellant back to his house and
then drove appellant to the police station to give a witness statement. 1 Olvera
1
In his statement to the police, appellant stated that his name was Ruben Guerrero
Gonzalez and explained the following:
About 1:30 p.m. this afternoon I was driving to Sellers Brothers Grocery
Store when I saw this white car sitting on the side of the road in a driveway with a
closed gate. I saw that the trunk of the car was wide open. I pulled over next to
the car to see if someone needed help. I saw the girl sitting in the drivers [sic]
side of the car bleeding from the side of the body and [she] told me to help her.
I asked her what happened and she repeatedly told me to help her. I
opened her car door, took her out of the drivers‘s [sic] side and put her in the back
seat. I then got back into the driver [sic] side and drove her to Humble Hermann
Memorial Emergency Room taking, [sic] Little York Road to E. Hardy going
north to the Beltway 8 East and then to Highway 59 North.
Once I got to the hospital, I asked for help from the people at the
emergency room. I then got her out of the car and placed her on the wheel chair
for the people to help her. I then waited there at the emergency room because the
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found it odd that appellant did not take Anna to a closer hospital. Appellant said it
was the only hospital he knew, and he did not call 911 because he thought it would
be quicker to drive Anna to the hospital. Appellant referred to Anna in his
statement as ―the girl,‖ and he did not tell Olvera that Anna was his former wife.
Anna was transferred by helicopter to another hospital in the medical center.
Anna‘s family did not find out that she had been shot and was in the hospital until
the following day, June 20, when a social worker called Anna‘s sister, Blanca
Vasquez. Anna‘s daughter, Isabel, learned of Anna‘s condition when the daughter
of one of Anna‘s other sisters called Isabel. Anna‘s children came to the hospital
with appellant on June 20. Appellant told Blanca he just found out that Anna had
been shot. He did not tell Blanca that he had taken Anna to the hospital the day
before.
Anna‘s sisters and appellant took turns staying with Anna at night because
they did not know who had shot her. Appellant stayed with Anna three nights;
Isabel was with appellant one of those times. Blanca thought it was unusual for
appellant to help out at the hospital because he and Anna had been divorced for a
long time and he was known for ―being a person that is not willing to help.‖ Anna
was not able to speak for about two weeks.
The police did not develop a suspect until July 7, 2010, when Officer Lewis
Hernandez interviewed Anna‘s brother, Jorge Rodriguez, her sister, Blanca
Vasquez, and her son, Victor Gonzalez. These witnesses told Hernandez
appellant‘s name, which Hernandez recognized from a report as the person who
had dropped Anna off at the hospital. Hernandez put together a photospread, from
people told me to wait.
I left my car with the keys in the ignition at the place where I saw the girl
in her car.
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which Anna identified appellant. Hernandez and Sergeant J.C. Bonaby then
interviewed Anna and took a recorded statement.
Bonaby and Hernandez obtained an arrest warrant for appellant, and found
appellant in the waiting room at the hospital. Appellant consented to the search of
his residence and vehicle. During a search of appellant‘s residence, the police
recovered a box of .32 caliber Smith and Wesson bullets underneath a mattress.
There were bullets missing from the box.
From Anna‘s car, the police recovered two fired bullets with blood on them
from the driver‘s seat and between the driver‘s seat and the center console. The
fired bullets were .32 caliber. One of the fired bullets, State‘s Exhibit 7, was
consistent with the bullets from the box in terms of size, weight, and style. A
portion of the other fired bullet, State‘s Exhibit 8, was missing. However, the
firearms examiner did not know if the fired bullets came from the box.
There was blood on the steering wheel, the center console, the driver‘s seat,
and the back seat. The police also recovered Anna‘s purse from the floor on the
passenger‘s side of the car. The purse contained documents, a cell phone, and
$765.63 in cash. Bonaby testified that this case did not involve a robbery because
Anna‘s purse was found in the car with the cash still in it. In Bonaby‘s opinion,
the person who shot Anna was inside the vehicle because Anna was mostly shot on
the right side, indicating that the bullets came from the passenger side. Having
interviewed Anna, his opinion that she was shot in the vehicle is consistent with
her story.
Anna was shot six times—the common number of rounds in a revolver. She
had four surgeries and spent nearly two months in the hospital, getting out on
August 13, 2010. The jury found appellant guilty of aggravated assault of a family
member.
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B. Punishment
The following evidence was presented at the punishment phase of trial.
Regarding a previous conviction, on June 7, 1999, appellant was convicted on his
guilty plea for assaulting Anna. According to Anna, appellant came home from
work and started drinking. The children were asking for food, and there was
nothing in the refrigerator. Anna told appellant, but she eventually borrowed some
money from a neighbor and went to the store. When Anna later chastised
appellant, he became ―very angry, and started beating [her].‖ Isabel called 911,
and the police came.
Regarding the current conviction, Anna‘s four surgeries included the
reconstruction of her pancreas, liver, and intestines. At the time of trial, Anna still
needed more surgery on her intestines. Anna was not able to communicate for two
weeks after the shooting. During that time, appellant would see her. He threatened
Anna, gave her water even though her doctor said could not have any, applied
pressure to the intravenous needles causing pain, and caused morphine to be
administered to her when she had not asked him to do so.
Appellant presented the testimony of two brothers and a sister-in-law
regarding his good character. Appellant‘s sister-in-law testified that appellant
helped her take his brother to the doctor. Appellant‘s brothers testified that
appellant had not been convicted of a felony in Texas or any other state.
Appellant‘s younger brother believed that appellant would successfully complete
the terms of probation if appellant received probation, and appellant would not be a
danger to society or Anna. However, none of appellant‘s witnesses was aware that
he had been convicted of assault in 1999.
A community supervision officer testified that in a case involving domestic
violence, the defendant is required to participate in a domestic violence program
6
and cannot have any contact with the victim. The officer could not say how
effective the domestic violence program is or that the probation department could
guarantee that appellant would not attack Anna again. The jury assessed
appellant‘s punishment at twenty years‘ confinement.
II. ANALYSIS
A. Motion for New Trial
In his first issue, appellant contends that the trial court abused its discretion
by failing to hold a hearing on his motion for a new trial. The State urges that this
issue should be overruled because appellant‘s affidavit in support of the motion for
new trial was untimely and conclusory.
―A defendant may file a motion for new trial before, but no later than 30
days after, the date when the trial court imposes or suspends sentence in open
court.‖ TEX. R. APP. 21.4(a). ―Within 30 days after the date when the trial court
imposes or suspends sentence in open court but before the court overrules any
preceding motion for new trial, a defendant may, without leave of court, file one or
more amended motions for new trial.‖ Id. 21.4(b). Filing an affidavit in support of
a motion for new trial more than thirty days after sentencing is considered an
untimely attempt to amend the motion. Klapesky v. State, 256 S.W.3d 442, 455
(Tex. App.—Austin 2008, pet. ref‘d) (citing Dugard v. State, 688 S.W.2d 524,
529–30 (Tex. Crim. App. 1985), overruled on other grounds by Williams v. State,
789 S.W.2d 802, 803 (Tex. Crim. App. 1989) (op. on reh‘g)); Flores v. State, 18
S.W.3d 796, 798 (Tex. App.—Austin 2000, no pet.). The motion for new trial
must not only be filed timely, but also it must be ―presented‖ to the trial court
within ten days of its filing. TEX. R. APP. P. 21.6.
On November 2, 2011, the trial court signed the judgment. On November
7
30, 2011, appellant filed a motion for new trial, alleging that (1) his punishment is
unjust and inappropriate; (2) the verdict is contrary to the law; and (3) he received
ineffective assistance of counsel. No affidavit accompanied the motion for new
trial. However, on December 5, 2011, appellant filed an ―Affidavit in Support of
Motion for New Trial with Briefing.‖ On December 7, 2011, the trial court signed
the order denying appellant‘s motion for new trial. The order includes the
handwritten notation, ―Presented 7 Dec 2011,‖ and it is signed by the trial court.
While appellant timely filed his motion for new trial on November 30, 2011,
he did not file his affidavit until thirty-three days after the trial court had signed the
judgment. This was an untimely attempt to amend the motion for new trial. See
Klapesky, 256 S.W.3d at 455; Flores, 18 S.W.3d at 798. The motion for new trial
was presented timely on December 7, 2011, within ten days after appellant filed
the motion. We have no reporter‘s record of any proceeding that took place on
December 7, 2011, and there is no written objection by the State to the late-filed
affidavit. The record does not reflect whether the trial court considered appellant‘s
untimely affidavit when it denied appellant‘s motion for new trial.
We need not determine whether the trial court considered the untimely
affidavit. Even if the trial court considered the affidavit, we conclude that the
affidavit was not sufficient and the trial court did not abuse its discretion by
denying the motion for new trial without a hearing.
The right to a hearing on a motion for new trial is not absolute. Reyes v.
State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). As a prerequisite to obtaining
a hearing, the motion must be verified or supported by an affidavit by the accused
or someone else specifically showing the truth of the grounds of attack. Jordan v.
State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). A defendant is entitled to a
hearing on a motion for new trial if the motion and the supporting affidavits raise
8
matters not determinable from the record that could entitle him to relief. Wallace
v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). The affidavit is not
required to reflect every component legally required to establish relief but the
motion for new trial or affidavit must reflect that reasonable grounds exist for
holding that such relief could be granted. Jordan, 883 S.W.2d at 665; Reyes, 849
S.W.2d at 816. Affidavits which are conclusory in nature and unsupported by facts
are not sufficient to put the trial court on notice that reasonable grounds for relief
exist. Jordan, 883 S.W.2d at 665. If the defendant‘s motion and affidavit are
sufficient, a hearing on the motion is mandatory. Id. We review the trial court‘s
denial of a hearing for an abuse of discretion. Smith v. State, 286 S.W.3d 333, 338
(Tex. Crim. App. 2009).
Unlike the other issues raised by appellant‘s motion for new trial, whether
appellant receive ineffective assistance of counsel during trial is not determinable
from the record; therefore, we must determine whether appellant‘s affidavit
provides reasonable grounds which would entitle him to a hearing on his motion
for new trial. See Buerger v. State, 60 S.W.3d 358, 362 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref‘d); see also Smith, 286 S.W.3d at 341 (―Because the
appellant‘s [ineffective assistance] claim is not determinable from the record, we
must decide whether his motion and affidavit show reasonable grounds that could
entitled him to relief.‖). ―To do so, the appellant must allege facts that would
reasonably show that his counsel‘s representation fell below the standard of
professional norms and that there is a reasonable probability that, but for his
counsel‘s conduct, the result of the proceeding would have been different.‖ Smith,
286 S.W.3d at 341.
In his affidavit, appellant states:
My trial attorney did not represent me capably. I gave him several
9
specific witnesses at both guilt and innocence and at punishment and
he did not speak with them or call them at trial. I believe that my case
was not handled correctly. My lawyer did not investigate the defenses
that I provided him nor conduct any independent investigation of my
case. At punishment there were a number of favorable witnesses that
could have been called[—]he did not subpoena or obtain any of my
school records or work history or good behavior while in jail or
present any good character evidence from friends or family. I
received the maximum sentence possible and I believe this was due to
Mr. Rodriguez‘s failure to represent me properly.
Appellant‘s affidavit is conclusory, and his motion for new trial contains only bare
assertions of his trial counsel‘s alleged deficiencies.
Appellant has not explained what the uncalled witnesses would have
testified to or that they would have been available to testify at all. Moreover,
appellant has not specifically stated what investigation his trial counsel failed to
conduct or what defenses he provided to trial counsel that trial counsel failed to
investigate. See King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000)
(holding that the appellant‘s bare assertions, including those of ineffective
assistance of counsel, did not entitle him to a hearing on his motion for new trial;
the appellant did not allege what further investigation counsel should have
conducted, who his alibi witness was, or how an alibi defense could have been
persuasive); Jordan, 883 S.W.2d at 665 (holding that the appellant‘s affidavit was
conclusory in nature because he failed to say why counsel‘s investigation was
deficient, or what any further investigation would have revealed; therefore, the
motion for new trial was not sufficient to put the trial court on notice that
reasonable grounds existed to believe that counsel‘s representation was
ineffective); Klapesky, 256 S.W.3d at 455 (holding that the appellant‘s affidavit,
which was conclusory, and the motion, which made only bare assertions that
counsel failed to present easily obtainable evidence of his innocence and call
witnesses who would have substantiated his affirmative defense, were insufficient
10
to put the trial court on notice that reasonable grounds existed for relief).
We hold that appellant‘s motion for new trial and affidavit are not sufficient
to put the trial court on notice that reasonable grounds exist for relief to be
granted.2 Therefore, because appellant‘s affidavit was deficient, the trial court did
not abuse its discretion in failing to hold a hearing on appellant‘s motion for new
trial. We overrule appellant‘s first issue.
B. Motion for Mistrial
In his second issue, appellant complains that the trial court erred in denying
his motion for a mistrial because there was no instruction that could have cured
Anna‘s emotional plea to the jury. After Anna finished testifying and as she was
leaving the witness stand, she held her hands in a praying position and said,
―please,‖ to the jury. Appellant‘s counsel saw Anna‘s plea to the jury and
informed the trial judge and the prosecutor, neither of whom saw Anna‘s action.
The following exchange took place at the bench out of the hearing of the jury:
MR. RODRIGUEZ [APPELLANT‘S COUNSEL]: I didn‘t
want to say this in front of the jury so they could hear, but for the
record, when the witness walked in front of the jury, she held her
hands in a praying motion, like pleaing [sic] to them as she looked at
them, and said please before she walked out of the courtroom.
Because of that, I would ask for a mistrial or that the State instruct its
witnesses not to communicate with the jury in that manner.
MR. MOSS [THE PROSECUTOR]: When did this happen?
MR. RODRIGUEZ: When she was walking from the witness
stand to the door.
MR. MOSS: I wouldn‘t —
THE COURT: I wasn‘t paying any attention.
2
Furthermore, the record does not support appellant‘s assertion that trial counsel was
ineffective for failing to present ―good character evidence from family friends.‖ Three family
members testified as to appellant‘s ―good character.‖
11
MR. MOSS: I didn‘t see that. I will talk to them. I don‘t have
anymore [sic] civilian witnesses.
With the jury out of the courtroom, the trial court then questioned Anna and
determined that she, in fact, had communicated to the jury:
THE COURT: . . . Ms. Vaquez, when you got down from the
witness stand and walked to the back door, did you put your hands
together in a praying motion and look to the jury and say please?
MS. VASQUEZ: Correct.
THE COURT: And what was the purpose of that?
MS. VASQUEZ: Praying that they would answer my prayer.
THE COURT: And who told you that you could speak to the
jury directly when you‘re not on the witness stand?
MS. VASQUEZ: Excuse me, I didn‘t know that.
THE COURT: So do you really speak English?
MS. VASQUEZ: Just simple words.
The following discussion took place among the trial court, appellant‘s
counsel, and the prosecutor concerning the remedy for Anna‘s action:
THE COURT: Okay. I realize we‘re dealing with rather
unsophisticated people here, so as far as I see it, my options are this, I
can individually question the jury about what they saw and whether or
not that‘s going to affect their verdict, or I can bring them out and
admonish them as a group to completely disregard that little
demonstration, or I could instruct them to disregard the demonstration
and then question them either as a group or individually whether or
not that‘s going to affect their verdict. What‘s your druthers?
MR. MOSS: The State would just ask for an admonishment.
MR. RODRIGUEZ: The Defense, your Honor, would ask for
an admonishment not to allow anything — or to disregard any outside
actions other than direct testimony, and then ask generally if anybody
was affected by any outside action. That‘s what [the] Defense would
ask for.
THE COURT: I‘ll be happy to do that, since they have been
repeatedly admonished not to let anything.
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And are you saying there are no more civilian witnesses?
MR. MOSS: I have only two experts left, your Honor.
THE COURT: I assume your experts will not pray to the jury for a
verdict.
All right. Let‘s have the jury back out.
The jury returned to the courtroom, and the trial court admonished the jurors
not to consider Anna‘s plea and asked whether they could disregard Anna‘s plea:
THE COURT: . . . All right. Ladies and gentlemen, it was
brought to my attention that as the complaining witness left the
witness stand, Ms. Vasquez, as she passed by the jury box, that she
put her hands together in a praying motion and mouthed or said the
word ―please‖ to you all in English.
Please understand, ladies and gentlemen of the jury, we cannot
have you take those actions, which were completely unauthorized, to
give any consideration whatsoever for that unauthorized act. What I
need to know — you are to disregard it completely and not let it play
any factor whatsoever in your deliberations in this case. It is not
evidence. It‘s not sworn evidence. It‘s just nothing.
Now, I need to know from you now if there is anyone that‘s
going to let those actions by the complaining witness affect them in
their deliberations. Anybody? Can everybody raise their hands and
assure me that they can completely disregard those actions by the
complaining witness? Everybody raise your hand if you can.
(Hands raised.)
THE COURT: Okay. Raise your hand if you think you cannot,
or if you know you cannot.
All right. I see all twelve hands raised that they can completely
disregard those actions by the complaining witness. Very good.
Appellant‘s counsel then moved for a mistrial ―just to protect the record,‖
which the trial court denied.
A mistrial is a device used to halt trial proceedings when error is so
prejudicial that expenditure of further time and expense would be wasteful and
13
futile. Ladd v. State, 3 S.W.3d 547, 566 (Tex. Crim. App. 1999). The trial court
may properly exercise its discretion to declare a mistrial if an impartial verdict
cannot be reached, or if a verdict of conviction could be reached but would have to
be reversed on appeal due to an obvious procedural error. Id.
An outburst by a witness or other bystander ―‗which interferes with the
normal proceedings of a trial will not result in reversible error unless the defendant
shows a reasonable probability that the conduct interfered with the jury‘s verdict.‘‖
Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (quoting Landry v.
State, 706 S.W.2d 105, 112 (Tex. Crim. App. 1985)). In the context of such
outbursts, instructions to the jury are generally considered sufficient to cure
improprieties that occur during trial because it is presumed that the jury will follow
those instructions. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010),
cert denied, — U.S. —, 131 S. Ct. 3030 (2011); Gamboa, 296 S.W.3d at 580. We
review the denial of a motion for mistrial under an abuse of discretion standard.
Coble, 330 S.W.3d at 292; Gamboa, 296 S.W.3d at 580. The determination of
whether a given error necessitates a mistrial must be made by examining the
particular facts of the case. Ladd, 3 S.W.3d at 566.
In Stahl v. State, the trial court cautioned the mother of the murder victim,
before she testified, not to show emotion when being shown a morgue photograph
of her son; she responded that ―I can assure you I will try. . . . I can‘t say what‘s
going to happen.‖ 749 S.W.2d 826, 828 (Tex. Crim. App. 1988) (op. on reh‘g).
When shown the picture of her son, she stated, ―Oh, my God. . . . Oh, my God.
My baby. My God. . . . May he rest in hell. May he burn in hell. Oh, my baby.‖
Id. The trial court instructed the jury to disregard these statements but denied the
motion for mistrial. Id. The record revealed that the prosecutor had anticipated the
mother‘s behavior. Id. at 829. The prosecutor further sought to exacerbate the
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impact of the mother‘s emotional outburst on the jury by referring to the mother‘s
conduct during closing argument. Id. at 830. The court noted its observation of
―the prosecutor‘s desire to use the outburst for inflammatory purposes.‖ Id.
Stahl is distinguishable from the facts in this case. Stahl was decided on the
basis of prosecutorial misconduct, not merely the witness‘s emotional outburst.
Coble, 330 S.W.3d at 292 (discussing Stahl). Here, there is no suggestion by
appellant of prosecutorial misconduct. When appellant‘s counsel informed the trial
court about Anna‘s direct plea to the jury, it is clear from the prosecutor‘s reaction
that he had not seen Anna‘s action and that he did not know that she was going to
communicate to the jury. The prosecutor did not draw further attention to Anna‘s
conduct by referring to it during closing argument.
We find the witness‘s communication to the jury in Brown v. State similar to
Anna‘s plea to the jury in this case. See 92 S.W.3d 655 (Tex. App.—Dallas 2002),
aff’d on other grounds, 122 S.W.3d 794 (Tex. Crim. App. 2003). In Brown, the
father of the victim in a capital murder trial, after the prosecutor had passed the
witness and defense counsel had no questions, stated to the jury, ―Give my son
justice, please.‖ Id. at 661. When the defendant started to object, the trial court
stated, ―Mr. Gray [the witness], unfortunately, that‘s out of line.‖ Id. Upon the
defendant‘s request for an instruction to disregard, the trial court announced, ―The
jury will disregard,‖ but denied the defendant‘s motion for mistrial. Id. First, the
Brown court distinguished the facts of that case from those in Stahl. Id. at 661–62.
Then the court noted that the trial court‘s instruction to disregard was immediate,
and it presumed that the jury followed the instruction to disregard. Id. at 662. The
court held that the father‘s statement was neither so offensive nor so flagrant that
the trial court‘s immediate reprimand of the witness and the instruction to the jury
to disregard could not have cured the error. Id.
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Anna‘s plea to the jury was no more harmful than the victim‘s father‘s plea
in Brown or other arguably more inflammatory outbursts in other cases, which
have been held not to warrant a mistrial. See Coble, 330 S.W.3d at 291–93
(holding capital murder defendant was not entitled to mistrial based on outbursts
by two witnesses: (1) ―And I hate you for making me go through this again and my
kids. You‘re mean.‖; and (2) ―Evil piece of shit.‖); Gamboa, 296 S.W.3d at 580
(holding that capital murder defendant was not entitled to a mistrial based on an
outburst by a victim‘s family member shouting, ―You did this for 200 dollars?‖,
during the testimony of a prosecution witness).
Here, the trial court, which had not witnessed Anna‘s plea, immediately
determined what had occurred and then gave a lengthy admonishment to the jury
not to consider Anna‘s direct plea. We presume that the jury followed the trial
court‘s instruction to disregard. See Coble, 330 S.W.3d at 292; Gamboa, 296
S.W.3d at 580. Furthermore, the trial court questioned the jurors about whether
Anna‘s communication to them would affect their deliberations and determined
that it would not.
We conclude that Anna‘s direct plea to the jury was not so prejudicial that it
could not be cured by the trial court‘s thorough instructions to disregard.
Therefore, the trial court‘s denial of appellant‘s motion for mistrial was not an
abuse of discretion. We overrule appellant‘s second issue.
C. Comment on the Failure to Testify
In his third, fourth, and fifth issues, appellant complains that it was harmful
error for the prosecutor to comment on appellant‘s failure to testify at punishment.
Appellant contends that such comment violated Article 38.08 of the Texas Code of
Criminal Procedure, Article I, Section 10 of the Texas Constitution, and the Fifth
16
Amendment to the United States Constitution.3
During closing argument at punishment, the following took place:
MR. MOSS [THE PROSECUTOR]: . . . People who are on
probation, what‘s the first thing they always tell you, you got to accept
responsibility, right? You got to accept responsibility for actions
before you can ever improve yourself.
MR. RODRIGUEZ [APPELLANT‘S COUNSEL]: Your
Honor, I would make an objection at this time that that‘s a comment
on his Fifth Amendment right not to testify.
THE COURT: That‘s overruled.
MR. MOSS: When he took her to the hospital and didn‘t give
his name, was he taking responsibility for his actions? Was he saying
I did this, I‘m sorry? I shot her, I lost my temper, please help her.
Did he do that? No, he didn‘t. He took her there, denied knowing
her, and tried to get away with it. Did he then accept responsibility
that night? Did he take his own kids —
MR. RODRIGUEZ: Your Honor, may I have a running
objection as to accepting responsibility being a violation of his Fifth
Amendment right not to testify?
THE COURT: Well, I don‘t see how a running objection is
going to apply to context [sic]. It‘s overruled, if that‘s your objection
to what he just said about that night.
MR. RODRIGEZ: Then I renew my objection as to accepting
responsibility in violation of his Fifth Amendment right not to testify.
THE COURT: That‘s overruled.
MR. MOSS: That night when he went to the hospital, did he
accept responsibility for his actions?
MR. RODRIGUEZ: Your Honor, I object again. Unless I have
3
See U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN.
§ 38.08 (West 2005). The State argues that appellant waived his arguments under the Texas
Constitution and section 38.08 of the Code of Criminal because his objections in the trial court
were based solely on the Fifth Amendment to the U.S. Constitution. Even if appellant waived
his state law and state constitutional arguments, we conclude as addressed below that the
prosecutor did not refer to appellant‘s failure to testify.
17
a running objection I object every time he says that he doesn‘t accept
responsibility because that‘s a violation of his Fifth Amendment right.
THE COURT: He‘s talking about that night. That‘s overruled.
MR. MOSS: When he didn‘t bring their children to the
hospital, we all heard, she might die, there was a good probability, did
he bring his children to the hospital that day to say good-bye to their
mom? Does he do that as a hero would? No, he didn‘t. He didn‘t tell
anyone they were there. In fact, not until the next day did any of her
family, including her children, know she was in the hospital, in critical
condition. Nobody knew that. Is that him being a hero? Is that him
doing what people on probation need to do? No.
And what do we know about his family? They were very nice
people, but they said that, first of all, they didn‘t even know he‘d been
convicted before. And second, they said they didn‘t believe he‘d done
it. Well, if your own family can‘t accept responsibility how are they
going to assure he goes by it. Nobody wants to accept responsibility
for what he did. He doesn‘t want to do it. His family members don‘t
want to believe it.
MR. RODRIGUEZ: Your Honor, we object to the comment
about Mr. Gonzalez not accepting responsibility being a violation of
his Fifth Amendment right.
THE COURT: Overruled.
A comment on a defendant‘s failure to testify violates both the state and
federal constitutional privileges against self-incrimination, as well as Texas
statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011);
Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011). Such a violation
occurs when ―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.‖ Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim.
App. 2007). In applying this standard, the context in which the comment was
made must be analyzed to determine whether the language used was of such
character. Randolph, 353 S.W.3d at 891; Busatmante v. State, 48 S.W.3d 761, 765
(Tex. Crim. App. 2001). It is not sufficient that the comment might be construed
18
as an implied or indirect allusion to a defendant‘s failure to testify. Busatmante, 48
S.W.3d at 765. We view the challenged argument from the jury‘s standpoint and
resolve any ambiguities in the language in favor of it being a permissible
argument. Randolph, 353 S.W.3d at 891. ―‗We cannot find that the prosecutor
manifestly intended to comment on the defendant‘s failure to testify, if some other
explanation for his remark is equally plausible.‘‖ Id. (quoting United States v.
Rochan, 563 F.2d 1246, 1249 (5th Cir. 1977)). In a case in which the defendant
does not testify, a statement that the defendant has not taken responsibility for his
actions could constitute an impermissible comment on the failure to testify. Id. at
891–92.
Under the circumstances of this case, however, the complained-of argument
does not amount to a comment on appellant‘s failure to testify. The prosecutor
specifically asked, ―Did he then accept responsibility that night?‖ and ―That night
when he went to the hospital, did he accept responsibility for his actions?‖4 The
prosecutor further asked, ―[D]id he bring his children to the hospital that day to say
good-bye to their mom?‖ Here, the prosecutor was referring to the defendant‘s
actions when he took Anna to the hospital after the shooting, not his failure to
testify. Permissible jury argument includes (1) summation of the evidence; (2)
reasonable deduction from the evidence; (3) answer to the argument of opposing
counsel; or (4) plea for law enforcement. David v. State, 329 S.W.3d 798, 821
(Tex. Crim. App. 2010), cert. denied, — U.S. —, 132 S. Ct. 128 (2011). If
evidence in the record supports the prosecutor‘s remarks, there is no error.
Randolph, 353 S.W.3d at 892. Viewed from the jury‘s standpoint, the prosecutor‘s
remarks could be construed as a summation of the evidence or a reasonable
deduction from the evidence. The prosecutor‘s argument was clearly supported by
4
Emphasis added.
19
evidence in the record that appellant did not admit to hospital personnel or the
police that he even knew Anna, much less that they had been married, and that he
did not tell Anna‘s family or children that she was in the hospital or that she had
been shot.
The prosecutor also referred to appellant‘s family‘s refusal to accept
responsibility for appellant‘s actions. Appellant‘s family did not know that
appellant had been convicted of assaulting Anna in 1999. The prior assault
conviction did not impact their opinions that appellant is of good character. Again,
from the jury‘s viewpoint, the prosecutor‘s comments about appellant‘s family
constituted a summation of the evidence or a deduction from the evidence, not a
comment on appellant‘s failure to testify.
We conclude that the prosecutor‘s argument was not manifestly
intended to or was of such a character that the jury would necessarily and naturally
take it as a comment on the his failure to testify. See id. at 891. We overrule
appellant‘s third, fourth, and fifth issues.
Having overruled all of appellant‘s issues, we affirm the trial court‘s
judgment.
/s/ Sharon McCally
Justice
Panel consists of Justices Boyce, McCally, and Mirabal.5
Do Not Publish — TEX. R. APP. P. 47.2(b).
5
Senior Justice Margaret Garner Mirabal sitting by assignment.
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