Opinion
No. 05-17-01451-CR
02-28-2019
CRAIG ALLEN JORDAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2 Kaufman County, Texas
Trial Court Cause No. 17-30308-CC2-F
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Nowell
Opinion by Justice Osborne
Appellant Craig Allen Jordan was convicted by a jury of theft, a state jail felony. The jury found two prior convictions true, making appellant eligible to be punished for a second degree felony; the jury sentenced appellant to ten years' imprisonment. Appellant raises two issues on appeal claiming the trial court abused its discretion by denying his requests for mistrials following the State's jury arguments that referred to plea bargaining and appellant's unwillingness to accept responsibility during the punishment phase of the trial. We affirm.
Background
Guilt/Innocence
On June 9, 2017, Nicole Mundy, an asset protection associate at the Walmart in Kaufman, Texas, was on the sales floor of the store when she noticed an unidentified black male who looked suspicious; the man had large, high priced items in a shopping cart and was talking on a cell phone while pushing the cart around. These were two "red flags" which prompted Mundy to keep a visual on the unidentified black male.
Mundy testified that the "red flags" were that the unidentified black male had a shopping cart, high-end merchandise was in that cart, and he was on a cell phone like he was communicating with someone because a lot of the shoplifters will communicate with others.
Mundy saw the unidentified black male meet up with a white male, subsequently identified as appellant, in the men's apparel department. It looked to Mundy like the two had a short conversation. Mundy then saw the unidentified black male take his shopping cart and go towards the exit, though he did not leave the store. She observed him do this several times. Every time he approached the exit, Mundy thought he was going to leave the store with the merchandise. Mundy never saw the unidentified black male approach the cash registers.
At some point appellant ended up with the shopping cart that had originally been with the unidentified black male. Mundy's visual now shifted to appellant because he had the merchandise. Mundy saw appellant go down the beer aisle and select two 30-packs of beer, which he covered in his cart with a bag of dog food.
Mundy saw appellant take both carts past the cash registers, which were the "last point of sale," and leave the Walmart.
Mundy contacted Sergeant Adam Atteberry, a Kaufman police officer who was at the store on an unrelated call, and pointed out appellant to him. Appellant was now in the parking lot and had completely exited the store. Atteberry approached appellant and told him to stop. Appellant did not comply, but continued on. Atteberry then grabbed his arm; appellant looked back but then pulled away from Atteberry and began to run. Atteberry gave chase, repeating his commands to stop. Atteberry was able to apprehend appellant with the assistance of other Kaufman police officers.
Both shopping carts were returned to the Walmart. The cart that was originally in the possession of the unidentified black male contained two tables and a canopy. The other cart contained two 30-packs of beer, hot dogs, two large containers of cooking oil, dog food, motor oil and a case of water. Mundy printed out a receipt for the items in both carts, which totaled $393.16.
Punishment
Appellant pled true to the enhancement paragraphs in the indictment and stipulated that he had been previously convicted of two theft offenses. The State produced evidence that appellant had five prior convictions for forgery, four prior convictions for possession of anhydrous ammonia, three prior convictions for possession of various controlled substances, one prior conviction for possession of a controlled substance with intent to deliver, one prior conviction for burglary of a habitation, one prior conviction for burglary of a building, and one prior conviction for driving while intoxicated, a second offense. Appellant had pled guilty to all of his previous offenses.
There was testimony that anhydrous ammonia is used to make methamphetamine.
Standards of Review
Appellant's two issues both claim that the trial court abused its discretion by failing to grant requested mistrials following alleged improper jury arguments by the State.
This Court reviews a trial court's ruling on a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). A trial court abuses its discretion if its decision is outside the zone of reasonable disagreement. Id. A mistrial is required only in extreme circumstances where the prejudice is incurable. Id.; Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
Proper jury argument generally falls within one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to an argument of opposing counsel; and (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). A prosecutor may not use closing arguments to present evidence that is outside the record; improper references to facts that are neither in evidence nor inferable from the evidence are generally considered improper. Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011). When facts not supported by the record are interjected into argument, however, the error is not reversible unless the argument is extreme or manifestly improper. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). In order to merit reversal, the prosecutor's remarks "must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial." Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).
In determining whether improper jury argument during the punishment phase of a trial warrants a mistrial, this Court must balance three factors: (1) the severity of the misconduct (prejudicial effect); (2) the curative measures taken by the trial court; and (3) the certainty of the punishment assessed absent the misconduct (the likelihood of the same punishment being assessed). Hawkins, 135 S.W.3d at 77. This analysis is "conducted in light of the trial court's curative instruction." Id.
Issue 1: Argument re Plea Bargaining
In his first issue, appellant contends the trial court abused its discretion by denying his motion for mistrial following jury argument at the punishment phase of the trial which mentioned plea bargaining.
The record reflects the following arguments of the prosecutor, the objections of defense counsel, and the trial court's ruling:
[THE PROSECUTOR]: Defense counsel made a statement as to, well, my client has pled guilty on all the cases, and in this particular case, it's different because something else was involved. How about sometimes defense counsel and prosecutor cannot come - cannot make a deal or cannot come to a conclusion as to what's the proper punishment is in the case. When that happens, that's why we have a trial, because we cannot agree on what the - a proper punishment -
[DEFENSE COUNSEL]: Objection, Your Honor, to the . . . prosecutor talking about plea bargain negotiations. That's not proper. It's outside the scope of the record. There's been no testimony or talk of it. Her argument is outside the scope of proper jury punishment argument.
THE COURT: Okay. I would ask that the State just argue about the evidence that's been presented, not argue any plea bargain issues. So I'll sustain that.
[DEFENSE COUNSE]: And I'd ask the jury the disregard that last argument.
THE COURT: All right. If you'll disregard any comments were made in regards to plea bargain agreements and . . .
[DEFENSE COUNSE]: I'd ask for a mistrial.
THE COURT: All right. That's denied.
Appellant claims that the argument was improper because it "appeared to indicate" that appellant "had agreed he was guilty but the two parties could not agree on punishment and the jury was only concerned with punishment." Appellant also claims that the trial court's curative instruction was not sufficient to cure the error because the argument stated that the trial was "not necessarily about whether the State proved its indictment but only about the proper punishment." Because the trial court sustained appellant's objection and instructed the jury to disregard the prosecutor's argument, the only adverse ruling under consideration on appeal is the trial court's denial of the motion for mistrial.
The Severity of the Misconduct
Attempts at plea bargaining made prior to or during a trial, which in no way became a part of the evidence in the case, should not be alluded to in argument by the State. Clayton v. State, 502 S.W.2d 755, 757 (Tex. Crim. App. 1973); see also Ruiz v. State, 06-08-00136-CR, 2009 WL 36670, at *4 (Tex. App.—Texarkana Jan. 8, 2009, no pet.) (mem. op. not designated for publication) (assuming that the argument made by the prosecutor - "You know, sometimes the reality is that the State and the defendant can't agree on a plea bargain. That's why we have the 12 of you" - constituted error, but declining to find trial counsel ineffective for not raising an objection to the argument). The exception is where the argument was clearly invited by defense counsel's argument or where evidence of a plea bargain was introduced by the defendant. Clayton, 502 S.W.2d at 757.
In this case the prosecutor's remarks were made following defense counsel's argument to the jury:
[DEFENSE COUNSEL]: I do want to point out, though, that from the evidence you have in front of you, this is my client's first jury trial. From the judgement and the sentences that you have and we went through with the district attorney's office investigator, starting in 1991 to 2014, my client has pled guilty to each and every one of the allegations that he's faced.
And there was something different about this case that he made the decision . . . with me to have a jury trial, and that's why there was a plea of not guilty in this case. So there was something different. And I'll hope that you'll take that into consideration when assessing punishment that there was something different about this case. And I know y'all had to consider it, and y'all found my client guilty, but there was something about this case that was different, that there was another individual that drove my client to the Walmart, that the other individual left his cart with my client and my client took both carts out, the suspicious conduct of the other individual, there was something different about this case. And I think that's why we had a trial.
It is apparent that the prosecutor's arguments were made in answer defense counsel's arguments as to why appellant, who had pled guilty in sixteen previous criminal cases, chose to plead not guilty in this case. As such, the arguments fall within one of the recognized categories of proper jury arguments. Brown, 270 S.W.3d at 570. Because the State's argument was an answer to defense counsel's closing argument it was not improper.
Curative Measures
The trial court sustained appellant's objection to the prosecutor's argument and instructed the jury to disregard it. In most cases, an instruction to disregard will cure the alleged harm. Wesbrook, 29 S.W.3d at 115. The law presumes that instructions to disregard and other cautionary instructions will be duly obeyed by the jury. Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011). Without some indication from this record that the jury did not follow the trial court's instructions, we must presume that error in the prosecutor's arguments, if any, was cured by the trial court's instruction to disregard.
Certainty of the Punishment Assessed
Appellant was charged with a state jail felony. Because the jury found two prior convictions true, appellant was eligible to be punished for a second degree felony. TEX. PENAL CODE ANN. §12.425(b). As such, he faced a maximum sentence of twenty years' imprisonment. TEX. PENAL CODE ANN. §12.33.
In addition to the two prior offenses alleged in the indictment, appellant had at least sixteen prior convictions. In jury argument, defense counsel emphasized that appellant had pleaded guilty in all of those cases. Appellant offered no evidence in mitigation of punishment.
In jury argument, the prosecutor asked for a sentence of at least fifteen years. Defense counsel asked for a minimal sentence. The jury essentially "split the difference" and sentenced appellant to ten years' imprisonment. In light of the evidence of appellant's recidivism, we conclude the State's argument could have little or no effect on the jury's sentencing decision.
We conclude that the trial court did not abuse its discretion in denying appellant's request for a mistrial. We overrule appellant's first issue.
Issue 2: Argument re Unwillingness to Accept Responsibility
In his second issue, appellant claims that the trial court abused its discretion by denying his motion for mistrial following jury argument at the punishment phase of the trial where the prosecutor remarked on appellant's unwillingness "to accept responsibility." Appellant claims that this argument constituted an improper comment on his failure to testify at the punishment hearing.
The record reflects the following arguments of the prosecutor, the objections of defense counsel, and the trial court's ruling:
[THE PROSECUTOR]: What hurts my soul is despite the fact that your verdict came back as guilty, and we all could see that he stole and he committed the offense of theft, he's still not willing to accept responsibility on his -The prosecutor's argument then continued as follows:
[DEFENSE COUNSEL]: Objection, Your Honor. That's a comment on my client's right to remain silent.
THE COURT: I'll sustain that. You will disregard that last comment. All right.
[DEFENSE COUNSEL]: And I'd ask for a mistrial.
THE COURT: That will be denied.
[THE PROSECUTOR]: Defense counsel made a statement as to, well, his client on every other occasion pled guilty, but in this case, wanted to fight it because there was something else to it, because somebody else was involved. Well, we saw the video. The other person he claims to have been involved with had no property with him outside of Walmart. Who had all the property? The defendant.Appellant made no further objection to this portion of the argument.
But that doesn't even matter anymore. We talked about it in voir dire. In the guilt and innocence portion of the trial, we were focused on the theft and the theft alone, what happened on that day. But when it comes to the punishment portion, we're concerned about everything, what he's done in the past, his bad acts, his judgments.
And based on the evidence I've presented to you through the certified judgments in here, we have 16 convictions. 16. This is someone that, for every time he's been in, he's come right out and has done the same thing.
As with the first issue, because the trial court sustained appellant's objection and instructed the jury to disregard the prosecutor's argument, the only adverse ruling under consideration on appeal is the trial court's denial of the motion for mistrial.
The Severity of the Misconduct
A comment on a defendant's failure to testify violates both the federal and state constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011); see also U.S. CONST. amends. V, XIV; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08; Griffin v. California, 380 U.S. 609, 615 (1965). The implication that the State's comment referred to a defendant's failure to testify, however, must be "a clear and necessary one." Randolph, 353 S.W.3d at 891. Indirect or implied allusions, or language that might be construed as such, do not constitute a violation. Id. A prosecutor's argument amounts to a comment on a defendant's failure to testify only if the prosecutor manifestly intends the comment to be, or the comment is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant's failure to testify. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004). A defendant has a separate privilege not to testify at either the guilt or punishment phases of a trial. Randolph, 353 S.W.3d at 891.
Here, it is apparent that the prosecutor's argument was made in an effort to focus the jury on appellant's recidivism; despite a lengthy record of crimes, appellant continued to engage in bad acts and make bad judgments. Nothing in the record suggests that the prosecutor manifestly intended this remark to be a comment on appellant's failure to testify during the punishment phase of the trial. Nor can we conclude that a typical jury would have naturally and necessarily understood the prosecutor's argument, in the context in which it was given, to refer to appellant's failure to testify at trial.
Curative Measures
The trial court sustained appellant's objection to the prosecutor's argument and sua sponte ordered the jury to disregard it. The prosecutor then continued argument, without objection, in an effort to explain to the jury that she was responding to the defense argument attempting to shift blame from appellant to the unidentified black male in the Walmart. The prosecutor emphasized appellant's general lack of rehabilitation, not his failure to testify at punishment.
Even if the prosecutor's argument could be construed as a direct comment on appellant's failure to testify at the punishment phase, immediate curative measures were taken. Without some indication from the record that the jury did not follow the trial court's instructions and disregard the argument, we must presume that the trial court's instructions were followed.
In addition to the instruction to disregard, which was given immediately after the challenged statement, the trial court included a written instruction in the jury charge informing the jury that appellant had elected not to testify during the punishment phase and, as a result, the jury could not consider that fact for any purpose or refer to appellant's decision not to testify during deliberations.
The trial court's jury charge at punishment instructed the jury as follows:
Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a right accorded a defendant and, in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify, and you are instructed that you cannot and must not refer to or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against him.
The curative measures taken by the trial court were sufficient to cure any error in the prosecutor's argument.
Certainty of the Punishment Assessed
As noted above, because of the enhancements alleged in the indictment, to which appellant entered pleas of true, the available level of punishment was enhanced from that of a state jail felony to a second degree felony. TEX. PENAL CODE ANN. §§ 12.33, 12.425(b). In addition to those enhancements, appellant had a lengthy record of recidivism, including at least sixteen prior convictions. And appellant offered no evidence in mitigation of punishment.
In considering proper punishment, the jury sentenced appellant to ten years' imprisonment. This was greater than the minimal sentence sought by the defense but less than the fifteen year sentence sought by the prosecutor. In light of the evidence of appellant's recidivism, we conclude the State's argument could have little or no effect on the jury's sentencing decision.
We conclude that the trial court did not abuse its discretion in denying appellant's request for a mistrial. We overrule appellant's second issue.
Conclusion
The trial court's judgment is affirmed.
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47.2(b) 171451F.U05
JUDGMENT
On Appeal from the County Court at Law No. 2, Kaufman County, Texas
Trial Court Cause No. 17-30308-CC2-F.
Opinion delivered by Justice Osborne. Justices Myers and Nowell participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 28th day of February, 2019.