Opinion
NO. 01-16-00727-CR
12-28-2017
ANDRE DEWAYNE BUFORD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court Harris County, Texas
Trial Court Case No. 1458839
MEMORANDUM OPINION
Andrew Dewayne Buford was indicted for capital murder. The jury found him guilty of the lesser included offense of felony murder. The trial court sentenced him to forty years in prison. In four issues on appeal, Appellant argues (1) the jury instructions erroneously allowed the jury to convict without being unanimous, (2) the trial court erred by refusing to charge the jury on the lesser-included offense of aggravated robbery, (3) the trial court abused its discretion by denying his motion for mistrial after questioning about recovery of Appellant's personal belongings from jail, and (4) the assessment of certain courts costs against Appellant was unconstitutional as applied to him.
See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011), § 19.03(a)(2) (West Supp. 2017).
See id. § 19.02(b)(3).
We affirm.
Background
Guadalupe Ramirez-Tapia was walking to her high school on the morning of February 11, 2015. As she crossed a bayou, she saw a black man threatening a Guatemalan man. The black man, whom she later identified to police as Appellant, was holding a bat and told the Guatemalan man "to give him everything he's got." The Guatemalan man, Pascual Ixquiactap, did not appear to understand Appellant and only raised his hands up. Appellant then began to hit Ixquiactap with the bat. Ixquiactap fell to the ground as Appellant struck him.
Ramirez then saw Appellant searching Ixquiactap's pockets, pulling some items out, and taking them with him. She watched Appellant walk away. A short distance later, she saw Appellant try to give a woman some of the money that he had taken from Ixquiactap. The woman reacted in surprise and fear, asking Appellant what he had done and then running to Ixquiactap. Ramirez then saw Appellant walk to some apartments. After she got to school, Ramirez reported what she had seen to police.
That same morning, Libby Cruz was at a corner store near the location of the offense. She saw Appellant there, holding a bat. She had seen Appellant hang around the area before, including the previous night. That morning, Appellant asked Cruz for a dollar. She told him she did not have any money.
Cruz saw Appellant walk towards the bayou. A short while later, she saw a commotion by the bayou. She moved to get a better look, and saw Appellant returning from the bayou. Appellant offered Cruz five dollars, which she declined. She went to the bayou and attempted to help Ixquiactap.
Victoria Correa was working at a nearby empanada restaurant that morning. Appellant entered the restaurant. Surveillance video shows Appellant carrying a bat. Appellant approached a man in a wheelchair, pulled out a wallet, and tried to give the man some money. Correa heard Appellant say he got the wallet from a "wetback." Appellant threatened Correa with the bat and stole some money from the tip jar. Correa called the police.
Police arrived and arrested Appellant. No items clearly belonging to Ixquiactap were found on Appellant, but he did have a wallet and phone that lacked identifying marks or documents. During the trial, the following exchange occurred relating to the wallet and phone:
Q: If there was any property on the defendant, let's say if he had a cell phone and wallet, what would happen with that?
A: That would be - well, if it's a cell phone and wallet and we can't say that it belongs to anybody besides the suspect we're arresting, it will be put in their property bag with them. And a lot of times how we figure out if a wallet belongs to somebody is we start looking for identification, credit cards, and we go through their wallet. If anything inside that wallet does not belong to a person that's being arrested, it gets tagged in our property room. But anything that we can't say does not belong to the defendant gets tagged in their property bag when they get arrested.
. . . .
Q: So if there is nothing in a person's wallet to identify it as being anyone's wallet, what happens with it?
A: It's going to go in their property bag, because I can't say it doesn't belong to them.
Q: And the same thing with the cell phone?
A: Yes, and we can't go into cell phones without a search warrant.
Q: And when something's placed in the property bag in the jail, is it possible for a defendant's friends or family to come pick it up?
A: I don't know the policies of the jail. I know it's tagged with them when they sign for it once it's in there. I don't know what the jail does with it.
Q: Okay. So you do not know what the jail's policies are?
A: I don't know what the jail policy is once the property is tagged in with the prisoner.
Q: Okay. Would it surprise you that family members can pick up the property?
A: That wouldn't surprise me.
Q: Would it surprise you to know his property - that Mr. Buford's property was picked up?
[Appellant's trial attorney]: Object to leading and object to prosecutor testifying
The Court: It's sustained
[Appellant's trial attorney]: We would also ask that the jury be instructed to disregard that last question
The Court: Ladies and gentlemen, disregard the last question and do not consider it for any purpose.
[Appellant's trial attorney]: We would also ask for a mistrial.
The Court: That's denied.
At the charge conference, Appellant requested that the court instruct the jury on the lesser-included offense of aggravated robbery. The trial court denied this request and instructed the jury only on the charged offense of capital murder and the lesser included offenses of felony murder and murder.
The jury charge contained the following instruction:
If you believe from the evidence beyond a reasonable doubt that the defendant is guilty of either capital murder on the one hand or felony murder or murder on the other hand, but you have a reasonable doubt as to which of said offenses he is guilty, then you must resolve that doubt in the defendant's favor and find him guilty of the lesser offense of either felony murder or murder.Buford's trial attorney did not object to this instruction. The jury charge also instructed the jury that the foreman could only certify the verdict when the jury unanimously agreed upon the verdict.
Jury Charge
In his first issue, Buford argues that the jury instructions erroneously allowed the jury to convict without being unanimous. In his second issue, Buford argues that the trial court erred when it refused to give a jury instruction for the lesser included offense of aggravated robbery.
A. Standard of Review
Appellate courts undertake a two-step process in reviewing allegations of jury charge error. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)). First we determine whether error exists in the charge. Id. Second, we determine whether the level of harm stemming from the error requires reversal. Id. When there was no objection to the error, "the error must have been so harmful that the defendant was denied 'a fair and impartial trial,'" known as "actual 'egregious' harm." Id. (quoting Almanza, 686 S.W.2d at 171). If the defendant preserved error by timely objecting to the charge, an appellate court will reverse if the defendant demonstrates that he suffered some harm as a result of the error. Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009).
B. Unanimous Jury Verdict
The charge instructed the jury on the offense of capital murder as well as all three forms of committing murder. See TEX. PENAL CODE ANN. § 19.02(b)(1)-(3) (West 2011), § 19.03(a)(2) (West Supp. 2017). The charge also included the following instruction:
If you believe from the evidence beyond a reasonable doubt that the defendant is guilty of either capital murder on the one hand or felony murder or murder on the other hand, but you have a reasonable doubt as to which of said offenses he is guilty, then you must resolve that doubt in the defendant's favor and find him guilty of the lesser offense of either felony murder or murder.Appellant did not object to this instruction.
On appeal, Appellant argues this instruction improperly allowed the jury to reach a non-unanimous verdict. "Under our state constitution, jury unanimity is required in felony cases, and, under our state statutes, unanimity is required in all criminal cases." Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). The requirement of unanimity is a complement to the beyond-a-reasonable-doubt standard of proof. Id. at 745 n.23 (citing United States v. Gipson, 553 F.2d 453, 457 n.7 (5th Cir. 1977)).
Appellant argues, "Although it would appear to benefit the defendant—what it does, in practice, is to allow the jurors to disagree about the offense committed, but ignore their personal beliefs and settle for a conviction of one of two different charges." We find no support for Appellant's argument. Appellant construes the instruction to say that some of the jurors could find him guilty of only capital murders and others jurors could him guilty of one of the lesser included offenses and, in that situation, they would be forced to find him guilty of the lesser included offense.
Appellant's construction of the instruction is not justified. See Russell v. State, 665 S.W.2d 771, 780 (Tex. Crim. App. 1983) (holding undefined words in jury charge use common and ordinary meaning). The instruction does not describe a conflict between two groups. It explains what to do when "you have a doubt as to which of said offenses he is guilty," not when "some of you have a reasonable doubt and others do not." In addition, the jury charge further clarifies that the foreman could only certify the verdict when the jury unanimously agreed upon the verdict.
As Appellant acknowledges, the Texas Court of Criminal Appeals has upheld a similar instruction. See Barrios v. State, 283 S.W.3d 348, 350, 352-53 (Tex. Crim. App. 2009). In Barrios, the charge instructed the jury,
If you believe from the evidence beyond a reasonable doubt that the defendant is guilty of either capital murder on the one hand or robbery on the other hand, but you have a reasonable doubt as to which of said
offenses he is guilty, then you must resolve that doubt in the defendant's favor and find him guilty of the lesser offense of robbery.Id. at 350.
The defendant argued that juries are required to go through the charge in the sequence it is written. Id. at 351-52. The defendant argued that, by including the instruction after the instruction to acquit the defendant of capital murder if the jury has a reasonable doubt, the instruction was superfluous and allowed him to be found guilty by a non-unanimous verdict. Id. at 352. The court rejected the defendant's argument that the jury instructions must be followed sequentially. Id. Accordingly, the court upheld the instruction. Id. at 352-53.
Appellant argues that Barrios conflicts with other holdings of the Court of Criminal Appeals. See Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000) (holding charging jury in disjunctive for two separate acts of indecency with child permitted jury to convict without being unanimous). We find no conflict between Barrios and Francis. Even if there were a conflict between these cases, Barrios is more recent and more directly applicable to the issue in this appeal. Barrios, 283 S.W.3d at 352-53.
Finally, even assuming this instruction did create some ambiguity on jury unanimity, Appellant is estopped from arguing about it. "The law of invited error provides that a party cannot take advantage of an error that it invited or caused, even if such error is fundamental." Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011). Appellant acknowledges that he did not object to the instruction. Instead, Appellant twice urged the jury to apply it.
At voir dire, before the jury charge had been drafted, Appellant told the jurors that the instruction about which he now complains would be in the charge. Appellant described the effect it would have on the jury's deliberation.
Let's say [the selected jury is] absolutely convinced we've got the right guy. We're not sure that he shot him in the shoulder or cut him in the neck or whatever that hypothetical case may be. We're not sure he meant to kill anybody; and unless we know he meant to kill him, it can't be capital murder, so we've got to consider one of these lesser offenses.
If you have a reasonable doubt as to which it is and the jurors are back there deliberating, which is what you're supposed to do, and talking about the evidence, the Court's charge will tell you that it's not a majority vote. Again, it's not, like I said, about who talks the louder or beats hardest on the table. You are instructed to find in favor of the defendant and find him guilty of the lesser offense.
Any questions about that? That's how it works.
Then, during closing argument, Appellant returned to the subject. He urged the jury to apply the instruction.
But also remember, as the Court's charge tells you, if you get back there . . . and you're thinking to yourself, "Okay, we agree that he's there, we agree that it's him, but we're not sure if it's specific intent to cause death. I have a reasonable doubt about that. I have a reasonable doubt. I know he's responsible. I can't decide which one to pick over here, felony murder or murder. I have a reasonable doubt about both." The Court's charge tells you exactly what to do. Everybody remember? We talked about it the other day. You resolve it in favor of the defendant Andre Buford.
It's not do you want to. It's not do you think you should. It's not because you think it's the right thing to do. It's not because you think [the trial court] thinks you should do it. You are instructed you must do it. There is no debate. That's the decision you must make. And so if it comes to that, and I think based on the evidence, if the evidence has concluded for you that he was the one, your only choice is to pick one of the lessers. But if you're debating which charge will lead you to make that unanimous verdict that [the prosecutor] talked about, then that would be one of the lessers.
Appellant cannot complain about an instruction after emphasizing the importance of its application to the jury. See id. We overrule Appellant's first issue.
See also Ratcliff v. State, No. 14-16-00068-CR, 2017 WL 3045587, at *3 (Tex. App.—Houston [14th Dist.] July 18, 2017, no pet. h.) (holding defendant could not complain of trial court considering evidence from different case when defendant urged court to consider it).
C. Lesser Included Offense
Appellant was charged with capital murder. See PENAL. § 19.03(a)(2). Appellant requested an instruction of aggravated robbery. See TEX. PENAL CODE ANN. §§ 29.02(a)(1), .03(a)(1) (West 2011). A lesser included offense instruction is only available when the lesser offense can be established by proof of the same facts, or less than all of the facts required to establish the charged offense. TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006). As it applies to Appellant, a person commits capital murder when, in the course of committing or attempting to commit a robbery, he intentionally or knowingly causes the death of an individual. PENAL §§ 19.02(b)(1), 19.03(a)(2). A person commits aggravated robbery if he commits robbery and causes serious bodily injury to another. Id. §§ 29.02(a)(1), 29.03(a)(1). The difference between these elements is that capital murder requires intent to cause death or serious bodily injury, as well as proof of death resulting from the defendant's actions.
"A defendant is entitled to an instruction on a lesser included offense [when] . . . there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense." Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007) (internal quotations omitted). Appellant does not point to any evidence, and we find none in the record, that would prove that Appellant lacked the intent to cause death or serious bodily injury or that would prove that the death resulted from something other than defendant's actions.
The only evidence of the incident came from Ramirez. Ramirez testified that she saw Appellant holding a bat and telling Ixquiactap "to give him everything he's got." When Ixquiactap did not comply, Appellant beat him repeatedly with a bat. Nothing in the record contradicts this.
Appellant points out that Ixquiactap did not die immediately. Instead, he died five days later in the hospital. Nevertheless, the testimony from the medical examiner established that Ixquiactap died of blunt force trauma to the head. The evidence establishes that Appellant caused this trauma. Nothing in the record contradicts this.
We overrule Appellant's second issue.
Motion for Mistrial
In his third issue, Appellant complains of the trial court's denial of his motion for mistrial.
A. Standard of Review
The proper standard of review for a denial of a motion for mistrial is abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We will reverse "only when the trial judge's decision was so clearly wrong as to lie outside the zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).
B. Analysis
Testimony at trial established that Appellant had removed some items from Ixquiactap's pockets, that Appellant had asked Cruz for money before the incident, and that Appellant offered Cruz money after the incident. As Appellant points out in his brief, no items belonging to Ixquiactap were presented at trial. To explain this, the State presented evidence that items found on the Appellant when he was brought to the jail would be listed as his personal belongings unless some of the items indicated they belonged to someone else, like a credit card or form of identification. Appellant complains about the following exchange:
Q: Okay. Would it surprise you that family members can pick up the property?
A: That wouldn't surprise me.
Q: Would it surprise you to know his property - that Mr. Buford's property was picked up?
[Appellant's trial attorney]: Object to leading and object to prosecutor testifying.
The Court: It's sustained.
[Appellant's trial attorney]: We would also ask that the jury be instructed to disregard that last question.
The Court: Ladies and gentlemen, disregard the last question and do not consider it for any purpose.
[Appellant's trial attorney]: We would also ask for a mistrial.
The Court: That's denied.
A mistrial is the remedy for improper conduct that is "'so prejudicial that expenditure of further time and expense would be wasteful and futile.'" Hawkins, 135 S.W.3d at 77 (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). Only when prejudice is incurable will a mistrial be required. Id. We presume that improper testimony or questioning is cured by an instruction to disregard "except in extreme cases 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 in their minds." Campos v. State, 589 S.W.2d 424, 428 (Tex. Crim. App. 1979).
Appellant argues that we must find that great prejudice resulted from the State's questioning, because, without that line of questioning, "the state's theory [that Appellant robbed Ixquiactap] . . . falls apart." This is incorrect. Ramirez testified that she observed Appellant take items from Ixquiactap after hitting him with a bat. Cruz testified that, before the offense, Appellant asked her for money and that, after the offense, Appellant offered her money. Finally, there is evidence that Appellant boasted that he had taken money off "a wetback." The suggestion that Appellant's family had retrieved his belongings, which could have contained items taken from Ixquiactap, is not so extreme that we must conclude the jury could not disregard the struck question. See Ladd, 3 S.W.3d at 556, 567 (holding instruction to disregard cured harm resulting from leading question suggesting defendant smoked crack cocaine shortly before murder occurred).
We overrule Appellant's third issue.
Court Costs
In his fourth issue, Appellant argues the assessment of certain courts costs against Appellant was unconstitutional as applied to him. Appellant contends that charging him a $130 fee for summoning witnesses violates his rights under the Confrontation Clause and Compulsory Process Clause of the United States Constitution because he had been designated as indigent at the time of the assessment.
We have recently rejected the same argument in London v. State, 526 S.W.3d 596 (Tex. App.—Houston [1st Dist.] 2017, pet. filed). For a compulsory process claim, "the defendant bears the burden to 'make a plausible showing to the trial court, by sworn evidence or agreed facts, that a witness' testimony would be both material and favorable to the defense.'" Id. at 600 (quoting Coleman v. State, 966 S.W.2d 525, 528 (Tex. Crim. App. 1998)). We held that, "[w]ithout a showing that material, favorable witnesses were available to be called by [the defendant], we cannot conclude that, as applied in this case, constructive notice of the $5 witness fee operated to deny his right to 'have compulsory process for obtaining witnesses in his favor.'" Id. (citing U.S. CONST. amend. VI; TEX. CONST. art I, § 10); accord Merrit v. State, 529 S.W.3d 549, 557-59 (Tex. App.—Houston [14th Dist.] 2017, pet. filed) (applying London to assessment of $140 in costs). Here, Appellant did not establish that any material, favorable witnesses were available to him. Accordingly, his compulsory process claim fails.
For the right to confrontation, we observed that the statutory fees are assessed only upon a defendant's conviction. London, 526 S.W.3d at 600. Accordingly, we held the defendant failed to establish that paying fees assessed post-judgment prevented him from confronting any witnesses at trial. Id.; see also Merrit, 529 S.W.3d at 559. The same consideration applies here. Appellant has not shown that the post-trial assessment of costs prevented him from confronting any witnesses at trial.
We overrule Appellant's fourth issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Justices Higley, Massengale, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).