Marcus Stephen Fleck v. State

Opinion issued April 28, 2011

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-09-00983-CR, 01-11-00271-CR, 01-11-00272-CR

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MARCUS STEPHEN FLECK, Appellant

V.

THE State of Texas, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Case No. 1228225 (Counts I, II, and III)

MEMORANDUM OPINION

Appellant, Marcus Stephen Fleck, appeals three judgments finding him guilty on three counts[1] of aggravated sexual assault for intentionally or knowingly causing his mouth to contact the sexual organ of the complainant, a child under 14 years of age.  See Tex. Penal Code Ann. § 22.021(a)(B)(iii) (West Supp. 2010).  Pursuant to a plea-bargain agreement, the trial court assessed appellant’s sentence on each count at 40-years’ confinement in the Texas Department of Criminal Justice to run concurrently in each of the three counts.  In three issues, appellant contends that due to prosecutorial vindictiveness, he was reindicted, which resulted in two additional counts of aggravated sexual assault; that the trial court abused its discretion by not granting a mistrial after the State introduced evidence of an extraneous murder threat; and that a new punishment hearing should be ordered because the trial court did not consider or evaluate mitigating circumstances.  We conclude that the assertion that the reindictment was the result of prosecutorial vindictiveness is not preserved for appeal, that the trial court was within its discretion not to order a mistrial after it instructed the jury to disregard the extraneous threat, and that appellant did not preserve for appeal any punishment-phase error because he entered into a plea-bargain agreement concerning punishment.  We affirm.

Background

          In December 2002, appellant and his then-wife resided together with their two daughters:  the complainant, who was 11 years old, and her three-year-old sister. Appellant was the primary caretaker of the children because the complainant’s mother attended nursing school. On at least six occasions between Christmas and the end of March 2003, appellant had or attempted to have sexual contact with the complainant.  During the same time, appellant also physically abused the complainant and her mother.

          The first incident of sexual abuse began one day in their living room.  Appellant engaged the complainant in a game of “tickle monster,” in which he would move his index finger up and down while saying, “[O]h, the tickle monster’s going to come and get you.”  When the complainant began ascending the stairs, however, appellant grabbed her ankle. Appellant removed her pants and lowered her underwear to her ankles.  While holding her legs up, appellant bit her bottom and placed his mouth on her sexual organ for about 30 to 40 seconds.  She tried to escape but was not strong enough to do so. 

          The second incident began the same way, with appellant initiating a game of tickle monster.  Wanting to avoid the same result, the complaint ran away a little bit faster, but appellant grabbed her and again engaged in the same conduct on her sexual organ after removing her pants and underwear.

          At a later point, appellant and the complainant were sitting outside when appellant told her not to tell her mother because she would be mad and jealous.

          The third incident occurred in the hallway upstairs.  Appellant and the complainant were playing around when he pulled her to the floor. Appellant removed her pants and underwear, held her legs up, and placed his mouth on her sexual organ for about 30 to 40 seconds.

          The fourth incident occurred in the complainant’s bedroom.  Soon after stepping out of the shower, the complainant sat on her bed in a shirt and underwear.  Appellant entered her room and knelt in front of her.  As he started to pull her underwear down, the complainant looked at her father and said, “[D]ad, no.”  Appellant stood up and cussed at her.  As he left, he slammed the door behind him.

          The fifth incident occurred near the entrance to the complainant’s parents’ bedroom.  Needing money to buy some milk from the local store, the complainant approached her parents’ bedroom door and asked appellant for three dollars.  Appellant told her to approach and lie down on the bed with him. The complainant said, “[N]o.”  Patting the bed, appellant reiterated, saying, “[C]ome lay [sic] down with me[.]”  She refused. Appellant asked why.  She said, “[B]ecause I know what you’re going to do.” The complainant turned to leave, but appellant told her to come to him.  Standing in the doorway, the complainant turned back around and started crying.  He yet again told her to come and lie down with him.  She refused again and left.

          The sixth incident occurred one night downstairs on the couch in front of the TV.  While her mother slept upstairs, the complainant, dressed in her pajamas, and appellant sat on the couch, watching TV together.  Appellant moved towards her and had her lie down on the couch.  He pulled her pajama pants and underwear off. While holding her legs up, appellant licked and sucked her sexual organ for about 30 to 40 seconds.

          On March 26, the complainant was playing in the yard with her sister when the complainant accidently stepped on her sister’s foot with a pair of stilts.  Appellant approached and with the palm of his hand, hit the complainant on her forehead twice.  The complainant blacked out for a couple of seconds yet remained conscious.  That evening, when the complainant’s mother returned home, the complainant told her mother about the battery.

          The next day, the complainant’s mother picked up the complainant from school early and drove her to the police station. There, the complainant gave a statement concerning the battery, and the police photographed the complainant’s forehead. During her statement, the complainant did not mention any of the sexual abuse or attempts.  The complainant, her sister, and her mother never returned to live with appellant.

          In May, appellant filed for divorce.  In early June, while her mother was driving the complainant home, the complainant felt safe, and she told her mother about the incidents.  Her mother took her to a Child Assessment Center, where the complainant told a forensic interviewer about one instance that appellant sexually molested her.

          In September, the Harris County Grand Jury indicted appellant on one count of aggravated sexual assault for intentionally or knowingly causing his mouth to contact the sexual organ of the complainant, a child under 14 years of age, on or about February 15, 2003.[2]  At the first trial, the State introduced the complainant’s testimony concerning the four incidents of sexual molestation and the instance of attempted sexual molestation that occurred in the complainant’s bedroom shortly after she exited the shower.[3]  After the close of all evidence, appellant asked the trial court to require the State to elect the act upon which it would rely for conviction.[4]  The trial court denied the request.[5]  A jury found appellant guilty for the single count for aggravated sexual assault of a child and assessed his sentence at 25 years imprisonment.[6]  On appeal, the Fourteenth Court of Appeals reversed appellant’s conviction because it could not conclude beyond a reasonable doubt that the verdict had been unanimous as to any single incident of sexual molestation.[7]  The appellate court remanded for a new trial.[8]

          In July 2009, the trial court held the first pretrial motion hearing on remand.  Appellant and his trial counsel attended the hearing.  The court began by announcing that the trial date had been reset. Appellant personally addressed the court, objecting to the trial date reset.  Without ruling on appellant’s objection, the court explained to appellant:

[Y]ou have a lawyer who I will entertain any motions filed and presented by her, but I’m not going to entertain any pro se motions or writs filed by you because you are represented by counsel okay.

Later in the hearing, appellant’s trial counsel informed the court that she had learned that the State was seeking to reindict appellant.  Appellant again personally addressed the court:

The State has had over six years to file new charges, and I object to . . . the new charges on the basis of prosecutorial vindictiveness as a direct result of my refusal, not only having won my appeal, but also having filed my federal habeas corpus in these proceedings.

Without acknowledging the appellant or addressing his personal objection, the trial court proceeded with the hearing.  Appellant’s trial counsel neither adopted this objection nor addressed any argument concerning the prosecutorial-vindictiveness claim.

          In August, the trial court held a second pretrial motion hearing.  Appellant personally addressed the court, informing it that he had two hand-written motions he wished to file.  Appellant’s trial counsel informed the court that she was not going to adopt his motions. Explaining that it “would not expect [her] to adopt his motions[,]” the trial court announced it would “only consider the motions filed through counsel.”  After appellant persisted, the trial court explained, “I’m not going to consider any pro se motions that you file.  They will not be considered.  You have no right to hybrid representation.”  Later on, the trial court asked appellant if he understood that the State would be seeking to reindict his case and add new counts.  Appellant reiterated his objection on the ground of prosecutorial vindictiveness. The trial court explained to appellant:

Just so the record is clear, this re-indictment did not occur until at your request to change we changed prosecuting counsel, okay.  That happened at your request.  You’re right, the [prosecuting] office that we had before, they didn’t re-indict you.  That’s entirely within their right to do.

          The next week, the Harris County Grand Jury indicted appellant on three counts of aggravated sexual assault for intentionally or knowingly causing his mouth to contact the sexual organ of the complainant, a child under 14 years of age on or about January 1, 2003; on or about February 1, 2003; and on or about March 1, 2003.  Before trial, appellant elected to have the trial court judge assess his punishment in the event of a conviction. 

          During the guilt-innocence phase, the complainant’s mother testified that around Christmas 2002, she discovered in the laundry a pair of underwear belonging to a woman who was having an affair with appellant.  The complainant’s mother confronted appellant with the underwear.  Initially, appellant said the underwear belonged to the complainant, and he left the house.  After a few minutes, he returned and locked the door behind him.  Appellant screamed at the complainant’s mother.  He threw her around and pulled her hair, ripping out patches of hair.  Appellant went into the kitchen, where he got some concentrated lemon juice.  Appellant drank some of the juice and then spat it on her head, causing her scalp to burn.  The complainant’s mother testified that appellant had many affairs and had physically attacked her on multiple occasions.  The State asked why she did not leave appellant because of the affairs.  The complainant’s mother explained, “I did not want to confront [appellant] because it would be bad, it would be bad for me.  He would hurt me.”  The State then asked, “[I]s that basically the same reason why you didn’t leave, because of the abuse?”  The complainant’s mother answered, “I was terrified.  He told me he would cut me up in pieces.”  Appellant’s trial counsel objected on the ground that the complainant’s mother’s statement was evidence of an extraneous offense, namely, a “terroristic threat.”[9]  The trial court sustained the objection and instructed the jury to disregard. Appellant’s trial counsel moved for a mistrial, which the trial court denied.

          The jury found appellant guilty for all three counts of aggravated sexual assault.  At the opening of the punishment phase, the trial court announced its understanding that the parties had reached an agreement as to the punishment in this case.  The State and appellant confirmed that they had agreed to a sentence of 40-years’ confinement in the Texas Department of Criminal Justice to run concurrently in each of the three counts.  The court expressed its understanding that the agreement did not waive appellant’s right to appeal the proceedings at the guilt-innocence phase but that there would be no appeal of the punishment phase.  In accordance with the agreement, the trial court assessed appellant’s sentence at 40-years’ confinement for each count with each sentence to run concurrently.

Reindictment

          In his first issue, appellant asserts that his reindictment, resulting in the two additional counts of aggravated sexual assault, was the result of prosecutorial vindictiveness over his having successfully obtained a reversal and remand for new trial on appeal of his earlier conviction regarding his sexual abuse of the complainant.  Appellant contends that he is entitled to reversal and rendition of acquittal on counts two and three.  Concerning the count one, appellant contends that he is entitled to a reversal and remand for new trial because he was deprived of the protection afforded by extraneous offense instructions that would have been given concerning the facts underlying counts two and three.

          “[A] decision to prosecute violates due process when criminal charges are brought in retaliation for the defendant’s exercise of his legal rights.”  Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004).  “[U]nder specific, limited circumstances, the [default] presumption that a prosecution is undertaken in good faith gives way to either a rebuttable presumption of prosecutorial vindictiveness or proof of actual vindictiveness.”  Id.  Nevertheless, a defendant waives on appeal a claim that his reindictment was the result of prosecutorial vindictiveness if he fails to make that claim to the trial court by a timely request, objection, or motion on which the court ruled or refused to rule.  Id.; see Tex. R. App. P. 33.1(a)(1)–(2).

          On appeal, appellant asserts that he properly raised the issue of prosecutorial vindictiveness to the trial court by personally objecting at the pretrial motion hearing.  However, at the time appellant urged his pro se objection, he was represented by his trial counsel.  A pro se objection made by a defendant represented by counsel has legal effect if (1) the objection is adopted by counsel, (2) the trial court permits a hybrid representation situation, either as to the particular objection or in general, or (3) the trial court denies the pro se objection on the merits.  See Robinson v. State, 240 S.W.3d 919, 921–22 (Tex. Crim. App. 2007).  Additionally, a defendant has no right to hybrid representation.  Id.  Here, appellant’s trial counsel never adopted appellant’s objection, and the trial court expressly refused to permit a hybrid representation situation and never considered the merits of appellant’s objection or ruled on the merits of the objection.  We conclude that appellant’s pro se objection is without legal effect.  See id.  We hold that the appellate assertion that the reindictment was the result of prosecutorial vindictiveness is not preserved for appeal because appellant’s trial counsel did not present the complaint to the trial court and appellant’s pro se assertion was legally ineffective.  See Neal, 150 S.W.3d at 173; Tex. R. App. P. 33.1(a)(1)–(2).

          We overrule appellant’s first issue.

Motion for Mistrial

          In his second issue, appellant contends that the trial court abused its discretion by not granting a mistrial after sustaining his objection to the complainant’s mother’s testimony that appellant had threatened to cut her to pieces.

A. Standard of Review

We review the denial of a motion for mistrial under an abuse-of-discretion standard.  Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004); Davis v. State, 177 S.W.3d 355, 363 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  Under this standard, an appellate court must uphold the trial court’s ruling as long as the ruling is within the zone of reasonable disagreement.  Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).  “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 futile.”  Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)).  It is appropriate only for “a narrow class of highly prejudicial and incurable errors.”  Id.; see also Hawkins, 135 S.W.3d at 77.  Thus, a trial court properly exercises its discretion to declare a mistrial when, due to the error, an impartial verdict cannot be reached or a conviction would have to be reversed on appeal due to “an obvious procedural error.”  Wood, 18 S.W.3d at 648.

Where, as here, the trial court sustains an objection and instructs the jury to disregard but denies a defendant’s motion for a mistrial, the issue is whether the trial court abused its discretion in denying a mistrial.  Hawkins, 135 S.W.3d at 77.  In determining whether the trial court abused its discretion in denying the mistrial, we balance three factors:  (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of conviction absent the misconduct.  Id. at 75.  

Generally, an appellate court presumes the jury complies with a prompt instruction to disregard.  Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000).  Accordingly, an error “in the admission of improper testimony is usually cured by the trial court’s instruction to the jury to disregard[.]”  Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984).  Only in extreme circumstances, where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on the jurors’ minds, will a mistrial be required.  Kelley v. State, 677 S.W.2d 34, 36 (Tex. Crim. App. 1984). 

          B.      Analysis

          Because the trial court promptly instructed the jury to disregard the complainant’s mother’s testimony that he threatened to cut her up into pieces, we begin with the presumption that any error was cured. See id. 

          Appellant asserts that the State’s question invited the complainant’s mother’s response.  We disagree.  Immediately before the State’s question, the complainant’s mother’s testified, “I did not want to confront [appellant concerning his affairs] because it would be bad, it would be bad for me.  He would hurt me.”  The State then asked, “And is that basically the same reason why you didn’t leave, because of the abuse?”  The State’s question concerns the complainant’s mother’s testimony that she had been the victim of physical abuse, not verbal threats.  As the trial court recognized, the complainant’s mother’s answer is non-responsive.  Accordingly, it does not appear that the State’s question was calculated to inflame the minds of the jury.  See Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998) (“A witness’s inadvertent reference to an extraneous offense is generally cured by a prompt instruction to disregard.”).

          Appellant contends that he was harmed by the complainant’s mother’s testimony of the threat because it left the jury with the impression that he was a man too dangerous to leave on the streets.  Although, as appellant suggests, the evidence of the threat may have implied that appellant was dangerous, other evidence makes this point explicit.  Immediately before learning of the mere threat of violence, the jury heard the complainant’s mother detail how appellant swung her around by her hair, removing entire patches of hair.  The complainant’s mother testified that physical assaults such as this were not isolated incidents.  The jury also heard testimony from the complainant that appellant had physically abused her on multiple occasions.  In light of the other evidence, we cannot say the testimony of a verbal threat, even one involving death, was so prejudicial that the expenditure of further time and expense would be wasteful and futile.  See Marshall v. State, 210 S.W.3d 618, 628–29 (Tex. Crim. App. 2006) (mistrial not required despite introduction of evidence of extraneous offense where trial court granted motion to disregard and jury heard other, unobjected-to evidence of similar offense).   

          In sexual abuse cases, the testimony of the child victim alone is sufficient to support the conviction.  See Tex. Code Crim. Proc. Ann. Art. 38.07 (West 2005); Tran v. State, 221 S.W.3d 79, 88 (Tex. App.— Houston [14th Dist.] 2005, pet. ref’d); Sansom v. State, 292 S.W.3d 112, 123 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).  Here, the complainant’s testimony recited all the elements required for aggravated sexual assault.  She was able to recount specific details of the sexual assaults, such as the location of each incident, the placement of appellant’s hands, and comments appellant made to her.  Appellant offered no evidence contrary to the complainant’s testimony.  The evidence shows a high certainty of conviction absent the testimony of the verbal threat of violence against the complainant’s mother. We also note that the trial court’s instructions told the jury, “[I]f there is any evidence before you in this case regarding the defendant’s committing an alleged offense or offense other than the offenses alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, indemnity, or absence of mistake or accident of the defendant, if any, in connection with the offenses, if any, alleged against him in the indictment and for no other purpose.”

          After balancing all of the factors, we hold that the trial court did not abuse its discretion in overruling appellant’s motion for mistrial.  

          We overrule appellant’s second issue.

Punishment Hearing

          In his third issue, appellant contends that a new punishment hearing should be ordered because the trial court did not consider or evaluate evidence of mitigating circumstances. Appellant recognizes that by agreeing to a 40-year sentence, he waived his right to raise issues on appeal concerning the punishment phase of trial.  Appellant asks that we should nevertheless set aside his waiver because at his 2009 trial, he and his trial counsel could not have known of the Supreme Court’s decision in Graham v. Florida, --- U.S. ---, 130 S. Ct. 2011 (2010).  Appellant contends that in light of Graham, it is no longer futile to argue that the Eighth Amendment entitles a defendant to an individualized determination of the propriety of punishment, including a mechanism for having mitigating evidence considered.

          Appellant surmises on appeal that he may not have entered into an agreed plea bargain for confinement of 40 years concurrent for three counts of aggravated sexual assault had he known he could introduce mitigating evidence; however, the law at the time of his trial permitted that type of evidence.  Article 37.07, section 3(a)(1) of the Texas Code of Criminal Procedure states that “evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing . . . .”  Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (West Supp. 2010).  Furthermore, a defendant sentenced by the court may request the preparation of a presentence investigation report that may include the “social history of the defendant, and any other information relating to the defendant . . . .”  Tex. Code Crim. Proc. Ann. art. 42.12 § 9(a) (West Supp. 2010).

          The case referred to by appellant, Graham v. Florida, concerned a juvenile defendant who violated his probation by committing a home invasion robbery, by possessing a firearm, and by associating with persons engaged in criminal activity. Graham, 130 S. Ct. at 2019.  The trial court held a sentencing hearing and considered a punishment range of five years confinement to life without parole.  Id.  At the hearing, a presentence report prepared by the Florida Department of Corrections recommended a departure sentence of four years.  Id.  The trial court also considered a letter written by Graham expressing remorse and promising to refrain from crime.  Id. at 2020.  In announcing its sentencing, the trial court noted that Graham had a strong family structure to support him.  Id.  The trial court sentenced Graham to life imprisonment without parole.  Id.  The Supreme Court held that with respect to a juvenile offender who did not commit homicide, the Eighth Amendment prohibits imposition of sentence of life without parole and requires that a state give some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.  Id. at 2030.  “[T]he [Graham] Court was not required to revisit the question of whether the Eighth Amendment mandates individualized consideration for a term of years sentence. Therefore, discussion of a constitutional rule regarding mitigating evidence is conspicuously absent from the decision . . . .”  Welch v. State, --- S.W.3d ----, ----, No. 14-09-01020-CR, 2011 WL 80875, at *5 (Tex. App.—Houston [14th Dist.] Jan. 11, 2011, no pet.) (considering identical argument).  

          Appellant had a right, under state law, to present mitigating evidence and have a presentence report filed.  See Tex. Code Crim. Proc. Ann. arts. 37.07 § 3(a)(1), 42.12 § 9(a).  Appellant has failed to show any change in the law that would be pertinent to his decision to waive any punishment issues.  Because the record shows that appellant knowingly and intelligently waived his right to challenge the punishment assessed against him, we conclude that appellant’s waiver is effective.  See Tex. Code Crim. Proc. Ann. art. 1.14 (West 2005).

          We overrule appellant’s third issue.

­Conclusion

We affirm the judgments of the trial court.

                                                          Elsa Alcala

                                                          Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish.  See Tex. R. App. P. 47.2(b).

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[1]           Initially, all three counts were assigned to appellate cause number 01-09-00983-CR.  Subsequently, this Court re-assigned Count II to appellate cause number 01-11-00271-CR and Count III to appellate cause number 01-11-00272-CR.  Count I remains assigned to appellate cause number 01-09-00983-CR.

[2]           Fleck v. State, 201 S.W.3d 268, 271 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

[3]           Id. at 270.

[4]           Id.

[5]           Id.

[6]           Id.

[7]           Id. at 272.

[8]           Id.

[9]           See Tex. Penal Code Ann. § 22.07 (West 2010).