Opinion
Nos. 14-01-00049-CR, 14-01-00050-CR, 14-01-00051-CR
Affirmed and Majority and Concurring Opinions filed April 11, 2002.
On Appeal from the 338th District Court Harris County, Texas Trial Court Cause Nos. 842,024; 843,751 844,393
Panel consists of Chief Justice BRISTER and Justices ANDERSON and FROST.
MAJORITY OPINION PART I.
Appellant, Noe Cruz Sandoval, was charged by indictment with the offenses of theft (cause number 842,024), and falsely holding himself out as a lawyer (cause numbers 843,751 and 844,393). Appellant pleaded not guilty to the offenses, but pleaded true to enhancement allegations regarding two prior convictions for forgery. A jury found appellant guilty of the charged offenses and found the enhancement allegations to be true. They assessed punishment at three concurrent terms of twenty years', ninety years', and ninety years' confinement in the Department of Corrections, Institutional Division, and imposed a fine of $10,000. Appellant asserts two points of error on appeal. We affirm.
ISSUES ON APPEAL
Appellant asserts: (1) the trial court erred in denying his motion for a mistrial following the prosecutor's improper argument; and (2) he received ineffective assistance of counsel. Facts are recited herein as necessary for our review of appellant's points of error.
IMPROPER ARGUMENT
Appellant was charged with: (1) falsely holding himself out to be a lawyer to Beth Beard (cause number 844,393); (2) falsely holding himself out to be a lawyer to Leticia Canales (cause number 843,751); and (3) theft of property with a value over $1,500 from Sonia Benitez (cause number 842,024). Regarding the charges related to Beth Beard and Leticia Canales, the jury was instructed that if they found appellant not guilty of falsely holding himself out as a lawyer, they could find appellant guilty of the lesser included offense of theft of property of a value less than $1,500. Appellant argues the trial court erred when it denied his motion for mistrial which was prompted by the following argument made by the prosecutor during the guilt/innocence stage of trial:
Prosecutor: The only question in this case is whether or not you believe he held himself out to be an attorney, these two cases.
These are also felonies. Okay? But you might have heard, as you heard the Judge reading the charges, for falsely holding oneself out as an attorney, you might have heard her also talking about theft in here.
Theft in these cases has been given to you as an option of another thing you can find him guilty of. In these two cases, though, the theft is different than it is in Sonia Benitez's case. This is a felony theft because the amount he took from her was over $1,500.
If you go with the theft option in these cases, if you decide to convict him of what we call the lesser included offense of theft —
Appellant's Counsel: Objection, Your Honor. That's — object on the basis, improper plea for law enforcement.
The Court: Objection overruled.
Appellant's Counsel: — before —
Prosecutor: If you convict him of theft in these two cases, you are convicting him of a Class A misdemeanor offense. Okay? A misdemeanor, because the amount that he took from Leticia Canales and Beth Beard was not $1,500. And when it's less than $1,500, it's a misdemeanor. So know that, if you convict him of, the most he can get is a year in the county jail.
Appellant's Counsel: Objection.
Prosecutor: He can't even be sent to the penitentiary.
Appellant's Counsel: Objection.
The Court: Sustained
Appellant's Counsel: May we have an instruction to disregard?
The Court: The jury will disregard that last portion.
Appellant's Counsel: For the record, we're thankful for that instruction. We move at this time for a mistrial.
The Court: Denied.
Prosecutor: It's a misdemeanor. You shouldn't choose that option. And I hope you don't, ladies and gentlemen.
And before you can even consider it, all 12 of you have to agree that he is not guilty of the felony of falsely holding himself out as an attorney. And unless all 12 of you agree that he's not guilty of that felony, you cannot even talk about the misdemeanor lesser offense.
And I don't even think — I don't even think it should be in front of you. It shouldn't be there. But it is. And that's an option. And I just want you to understand the consequences of that option.
To fall within the realm of proper jury argument, the argument must encompass one of the following areas: (1) summation of the evidence presented at trial; (2) reasonable deduction drawn from the evidence; (3) an answer to the opposing counsel's argument; or (4) a plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000), cert. denied, 121 S.Ct. 1407 (2001). Counsel is allowed wide latitude in drawing inferences from the evidence, provided those inferences are reasonable, fair, legitimate, and offered in good faith. Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App. 1997).
As a general rule, any harm associated with improper argument can be cured by an instruction to the jury to disregard the comment. Long v. State, 823 S.W.2d 259, 269 (Tex.Crim.App. 1991). The reviewing court puts its faith in the jury's ability, upon instruction, to consciously recognize the potential for prejudice and to discount the prejudice, if any, in its deliberations. Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987). This is the presumption an instruction to disregard will be obeyed by the jury. Thus, we say the harm deriving from the improper argument has been cured. Id. This is true except in extreme cases in which it appears the argument was of such a character as to suggest the impossibility of withdrawing the impression produced in the minds of the jurors. Id.; Cooks v. State, 844 S.W.2d 697, 728 (Tex.Crim.App. 1992). Only in such an extraordinary instance do we conclude an instruction to disregard will not overcome the prejudicial effect of improper argument. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex.Crim.App. 1993); Cooks, 844 S.W.2d at 728.
A mistrial is an extreme remedy for prejudicial events which occur during the course of a trial. Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). The trial court's ruling on a motion for mistrial is reviewed under an abuse of discretion standard. Id. A trial court commits error in denying a motion for mistrial only if the argument is extreme, manifestly improper, injects new and harmful facts into the case, or violates a mandatory statutory provision, and was thus so inflammatory that its prejudicial effect cannot be reasonably removed from the minds of the jury by an instruction to disregard. Foster v. State, 25 S.W.3d 792, 798 (Tex.App.-Waco 2000, pet. ref'd); Carlock v. State, 8 S.W.3d 717, 725 (Tex.App.-Waco 1999, pet. ref'd). If the reviewing court finds that an instruction cured any prejudicial effect caused by the improper argument, it must conclude the trial court did not err. Foster, 25 S.W.3d at 798; Faulkner v. State, 940 S.W.2d 308, 312 (Tex.App.-Fort Worth 1997, pet. ref'd).
It is improper for a prosecutor to argue that jurors should find the defendant guilty of a greater offense based on the punishment range. McClure v. State, 544 S.W.2d 390, 393 (Tex.Crim.App. 1976). However, she may explain to the jury the ranges of punishment available for each offense. Hart v. State, 581 S.W.2d 675, 678-79 (Tex.Crim.App. 1979). It is possible to interpret the prosecutor's statement in this case as a suggestion to the jury that it should find the defendant guilty of the felony offenses because of their greater penalty. However, the prosecutor's statement, even if improper, was not so inflammatory that its prejudicial effect could not reasonably be cured by the trial court's instruction to disregard the statement. Long, 823 S.W.2d at 269 (holding prosecutor's comment on appellant's failure to testify at punishment stage cured by trial court's instructions to jury on defendant's right not to testify). Therefore, any harm deriving from the prosecutor's statement was cured by the trial court's instruction to disregard. See id. We overrule appellant's first point of error.
The panel does not believe the remainder of this opinion satisfies the requirements for publication. See Tex.R.App.P. 47.4.
PART III. CONCLUSION
We overrule both of appellant's points of error, and affirm the judgment of the trial court.