Opinion
No. 05-03-00925-CR.
Opinion issued March 10, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-71035-TU. Affirmed.
Before Justices WHITTINGTON, LANG, and LANG-MIERS.
OPINION
Robert Lee Clark appeals his conviction for aggravated sexual assault of a child younger than fourteen years of age. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iv), (a)(2)(B) (Vernon Supp. 2004). After finding appellant guilty as charged, the jury assessed punishment, enhanced by a prior conviction, at life confinement. In two points of error, appellant contends the trial judge erred in denying his motions to suppress evidence and for mistrial. We affirm the trial court's judgment.
Motion to Suppress
In his first point of error, appellant contends the trial judge erred in denying his motion to suppress evidence. Under this point, appellant claims his statement to police was inadmissible because he "clearly and unambiguously expressed his desire to speak with an attorney." We review a trial judge's ruling on a motion to suppress under an abuse of discretion standard; absent an abuse of discretion, we may not disturb the trial judge's findings. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). In reviewing the trial judge's ruling, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and we must sustain the ruling "if it is reasonably supported by the record and is correct under any theory of law applicable to the case." Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex. App.-Dallas 2002, pet. ref'd). We give almost total deference to the trial judge's determination of historical facts, but review de novo a trial judge's application of the law to the facts. Balentine, 71 S.W.3d at 768; Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); see Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Thus, if the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's determination of the facts. Joseph v. State, 3 S.W.3d 627, 633 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (citing Guzman, 955 S.W.2d at 87); see Carmouche, 10 S.W.3d at 327; State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App. 1999). The trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony, even if that testimony is not controverted. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Appellant filed a pretrial motion requesting, among other things, that the trial judge hold a "sub rosa hearing prior to the introduction of any statements allegedly made by the Defendant, either orally or in writing, to determine the admissibility of same." On January 4, 2002, the trial judge held a pretrial motion during which two witnesses testified. Detective Breedlove testified he met with appellant in an interview room at police headquarters. When he started talking to appellant, he first advised appellant of his constitutional rights. Breedlove read the Miranda warnings to appellant, explaining each warning individually. When appellant stated he understood a warning, Breedlove had appellant write his initials by the warning. After appellant stated he understood his rights, Breedlove told appellant what he was arrested for and stated that he wanted to hear appellant's side of the story. Breedlove testified appellant did not request an attorney nor did he ask to stop the interview. Appellant told Breedlove what happened, then he wrote the statement for the officer. On cross-examination, Breedlove testified appellant was placed under arrest by two other officers. He did not know of any discussion that took place between appellant and the other officers and testified that the arresting officers "never talk to defendants or suspects about a case. They tell them they have to wait to talk to the detective about it." Appellant testified he was arrested by two officers who told him he was being charged with aggravated sexual assault of a child. According to appellant, he asked the female officer for an attorney, and she told him he would be appointed one once he got to jail. Appellant testified he thought he was entitled to an attorney during the interview with Breedlove. He testified he asked another officer for an attorney again after he finished talking to Breedlove. On cross-examination, appellant testified he could read and write. He conceded Breedlove read each of his rights to him, including that he had a right to an attorney, and that he initialed each one indicating he understood. He also conceded he did not ask for an attorney or request to stop the interview at anytime during his conversation with Breedlove. Appellant admitted he had been previously arrested on more than one occasion. At the conclusion of the hearing, the judge found Breedlove had advised appellant of his constitutional rights and that appellant knowingly, intelligently, and voluntarily waived those rights. She then found appellant's written statement admissible and denied appellant's motion to suppress. Because the record contains evidence supporting the trial judge's findings and conclusions, we cannot conclude the trial judge abused her discretion in denying appellant's motion to suppress. See Ross, 32 S.W.3d at 857 (holding that, although only witness to testify at motion to suppress was governmental agent, trial court was within its discretion in disbelieving agent's testimony and granting motion to suppress); Dewberry v. State, 4 S.W.3d 735, 747 (Tex.Crim.App. 1999) (holding evidence supported trial court's conclusions even though appellant's testimony differed from that of arresting officers). We overrule appellant's first point of error.Jury Argument
In his second point of error, appellant contends the trial judge erred in denying his motion for mistrial. Under this point, appellant claims a portion of the prosecutor's jury argument was "manifestly improper, harmful and prejudicial to the rights of" appellant, and that we must therefore reverse his conviction. We disagree. We review a trial judge's denial of a mistrial under an abuse of discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); Dooley v. State, 65 S.W.3d 840, 841 (Tex. App.-Dallas 2002, pet. ref'd). Granting a mistrial is appropriate when the error is so prejudicial that the expenditure of further time and expense would be wasteful and futile. See Ladd, 3 S.W.3d at 567. To determine whether an error necessitates a mistrial, we examine the particular facts of the case. See Dooley, 65 S.W.3d at 842. Proper jury argument must encompass one of the following: (i) a summation of the evidence presented at trial, (ii) a reasonable deduction drawn from that evidence, (iii) an answer to the opposing counsel's argument, or (iv) a plea for law enforcement. Dooley, 65 S.W.3d at 843 (citing Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996)); see Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000); Cooks v. State, 844 S.W.2d 697, 727 (Tex.Crim.App. 1992); Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991). To constitute reversible error, jury argument must be extreme or manifestly improper or inject new and harmful facts into evidence. In most cases, if error occurs, an instruction to disregard will cure any error committed. Wesbrook, 29 S.W.3d at 116; Cooks, 844 S.W.2d at 727; Huff v. State, 897 S.W.2d 829, 835 (Tex. App.-Dallas 1995, pet. ref'd); see Garner v. State, 730 S.W.2d 675, 696 (Tex. Crim App. 1987) (when trial judge instructs jury to disregard improper comment or question, we presume jury will follow judge's instruction unless remark or comment was so prejudicial or extreme that instruction was incapable of removing harm). During punishment, the prosecutor argued that the jury had "validated every ounce of courage that it took" for the victim, a six-year-old boy at the time of the offense, to tell his mother about the sexual assault, as well as to testify in open court. He continued:By you doing your service he's going to remember you the rest of his life and, by God, he's going to walk with his head high out of this courtroom and for the rest of his life he's going to walk high because he knows he had guts, tremendous guts, a million more guts than this coward man who sits before you.Appellant objected to the "derogatory comments directed at the defendant," and the judge sustained the objection. Appellant requested the jury be instructed to disregard. The judge did so. When appellant moved for a mistrial, the judge denied his request. Although appellant assigns this ruling as error, we cannot agree. Only offensive or flagrant error warrants reversal when there has been an instruction to disregard, and, in this case, the comment was not so flagrant that the instruction to disregard was ineffective. See Wesbrook, 29 S.W.3d at 116 (holding improper argument inviting jury to speculate on existence of evidence not presented at trial was cured by instruction to disregard); Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim. App. 1996) (holding improper statements that appellant was sociopath without remorse for his acts was cured by instruction to disregard); Karnes v. State, 873 S.W.2d 92, 101 (Tex. App.-Dallas 1994, no pet.) (holding prosecutor's argument, "To hell with Noah Charles Karnes! That is where he ought to go!" was not so inflammatory that prejudicial effect could not have been alleviated by instruction to disregard); see also McKay v. State, 707 S.W.2d 23, 36 (Tex.Crim.App. 1985) (holding that statements by prosecutor that appellant was "a moral vacuum" and had "no conscience, no heart, no recognition of right or wrong" were not manifestly improper nor did they interject new facts into evidence which were harmful to appellant). We overrule appellant's second point of error. We affirm the trial court's judgment.