February 8, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 351st District Court Harris County, Texas, Trial Court Cause No. 1044229.
Panel consists of Chief Justice HEDGES and Justices FOWLER and EDELMAN.
ADELE HEDGES, Justice.
MEMORANDUM OPINION Appellant, Jorge Delgado, appeals following his conviction of aggravated robbery and sentence of sixteen years in prison. In his first four points of error, appellant complains about the trial court's findings that he was not in custody when he gave his confessions and that his confessions were made voluntarily. In his fifth point of error, appellant asserts charge error and his final point of error complains of improper arguments. We affirm.
I. BACKGROUNDOn June 25, 2005, Brigido Aleman, the complainant, was driving through an apartment complex when someone walked in front of his car, forcing him to stop. Another individual opened the driver's side door and pointed a gun at the complainant. The complainant testified that when he turned his head to see if the other individual was opening the other door, the gunman shot him in the head twice. During his investigation, Officer Richard Sepolio developed information implicating appellant, who was fifteen years old at the time. Officer Sepolio and Officer Harry Hunt contacted appellant's mother and asked to speak with appellant. Appellant's mother agreed and accompanied the officers to her home where appellant was located. During that meeting, appellant confessed to certain facts both orally and in writing. Appellant stated that he and his cousin waited at the apartment complex for a particular vehicle to arrive. After his cousin walked in front of the car, appellant opened the door and asked for the driver's wallet. Appellant stated that when the driver of the vehicle refused, he shot him twice. Appellant was subsequently charged with aggravated robbery.
II. ANALYSISAppellant's first and third points of error complain that the trial court erred in allowing evidence of his oral confession. Appellant's first point of error contends that because he was in custody when he made the oral confession, the officers were required to follow certain procedures which they failed to do. His third point of error argues that his oral confession was not voluntary. Appellant has failed to preserve error with respect to his oral confession. At the motion to suppress hearing, the trial court specifically asked appellant's trial counsel if appellant's handwritten statement was the only statement at issue and if there were any oral statements at issue. Appellant's trial counsel responded that the handwritten statement was the only contested statement. Moreover, the trial court's motion to suppress ruling only addressed the written confession. Finally, appellant did not object at trial when the State offered appellant's oral confession into evidence. Appellant has therefore waived any complaint as to his oral confession. See TEX. R. APP. P. 33.1. We overrule points of error one and three. In his second and fourth points of error, appellant argues that the trial court erred in admitting his written confession into evidence. These points of error raise the same legal issues of whether he was in custody while being interrogated and whether his statement was given voluntarily. Appellant's written statement essentially memorialized the facts he had already orally confessed to the officers — namely, that after his cousin had walked in front of the complainant's car, appellant opened the complainant's car door and asked for his wallet, and when the complainant refused, appellant shot him twice. In fact, appellant's earlier oral confession was more detailed than his later written confession. See Daniel v. State, 668 S.W.2d 390, 392 (Tex.Crim.App. 1984) ("Since the second confession is more complete with more details and it was properly admitted in evidence, the admission of the first confession is not reversible error."). Because appellant's oral confession, which was admitted at trial without objection, proves the same facts as appellant's written confession, any error committed by the trial court in admitting the written confession was harmless. See Mayes v. State, 816 S.W.2d 79, 88 (Tex.Crim.App. 1991) (holding that trial court error due to improper admission of evidence may be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact or facts that the inadmissible evidence sought to prove); Sterling v. State, 800 S.W.2d 513, 520 (Tex.Crim.App. 1990) (finding that the improper admission of first confession was harmless "in light of second admissible confession containing substantively the same facts"); Daniel, 668 S.W.2d at 392 (finding trial court's error in admitting first confession was harmless because second similar confession was properly admitted). We overrule points of error two and four. In his fifth point of error, appellant contends that the trial court erred in instructing the jury that, before it could consider whether appellant was guilty of the lesser included offense of aggravated assault, it had to acquit appellant of the greater offense of aggravated robbery. The relevant portion of the jury charge read:
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of aggravated robbery and next consider whether the defendant is guilty of aggravated assault.Such an instruction, dubbed an "acquittal first instruction," is well recognized in Texas. See, e.g., Smith v. State, 744 S.W.2d 86, 94-95 (Tex.Crim.App. 1987) (implicitly approving of jury charge which stated that "unless you so find beyond a reasonable doubt or if you have a reasonable doubt thereof, you will acquit the defendant of capital murder and next consider whether or not the defendant is guilty of the lesser included offense of murder"); Benavides v. State, 763 S.W.2d 587, 589 (Tex.App.-Corpus Christi 1988, pet. ref'd) (finding no jury charge error where charge required jury to acquit defendant of greater offense of aggravated robbery before moving on to the lesser offense); Tenner v. State, 763 S.W.2d 877, 884 (Tex.App.-Fort Worth 1988, pet. ref'd) ("the trial court may instruct the jury they must acquit the defendant of the greater charge before considering the lesser"); McCloud v. State, 692 S.W.2d 580, 584 (Tex.App.-Houston [1st Dist.] 1985, no writ) ("In order to convict appellant of aggravated assault rather than attempted murder, the jury would have had to acquit appellant of attempted murder. . . ."); Scott v. State, No. 14-96-01540-CR, 1999 WL 351173, at *8 (Tex.App.-Houston [14th Dist.] June 3, 1999, no pet.) (not designated for publication) (finding proper jury charge where jury was required to acquit the appellant of the greater offense before considering the lesser offense). We therefore find no error in the court's jury instruction. We overrule point of error five. In his final point of error, appellant argues that the trial court abused its discretion by denying appellant's motion for mistrial based upon improper jury argument. Appellant complains about the following statement, which occurred during the State's closing argument at the guilt/innocence stage of trial:
STATE: Now, Officer Sepolio did his investigation. And part of his investigation has some parts that you don't know all what happened in it because of the Rules of Evidence doesn't get to get presented.
DEFENSE: Your Honor, I'm going to object to that. That's arguing outside the record.
DEFENSE: I'd like an instruction for the jury to disregard that last comment, Your Honor.
COURT: The jury will disregard the last statement by the prosecutor.
DEFENSE: We'd move for a mistrial.
COURT: That will be denied.When the trial court sustains an objection and instructs the jury to disregard but denies a motion for mistrial, the issue is whether the trial court abused its discretion by denying the mistrial. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004); Primes v. State, 154 S.W.3d 813, 814 (Tex.App.-Fort Worth 2004, no pet.). A mistrial is the trial court's 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 (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999)). The question of whether a mistrial should have been granted when a curative instruction has been given involves most, if not all of the same considerations that attend a harm analysis. Id. Therefore, in cases in which constitutional rights are not implicated, courts employ a multi-factored analysis which seeks to evaluate the effect of the harm on the outcome of the trial. See id.; Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998); Tucker v. State, 15 S.W.3d 229, 237-38 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Those factors to be considered in determining whether the trial court abused its discretion in denying a mistrial are: (1) the severity of the misconduct (magnitude of the prejudicial effect); (2) measures adopted to cure the misconduct (efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct. See Hawkins, 135 S.W.3d at 77 (applying the three-factor test to improper arguments during the punishment proceedings); Mosley, 983 S.W.2d at 259; Tucker, 15 S.W.3d at 237-38 (applying the Mosley factors to determine if improper argument during guilt/innocence proceedings constituted reversal). We do not find that any constitutional rights were impinged upon by the prosecutor's remarks in this case. See Tucker, 15 S.W.3d at 237 (finding that the trial court's erroneous ruling regarding improper comments made during jury argument involved nonconstitutional error); Ortiz v. State, 999 S.W.2d 600, 605-06 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (finding that trial court's error in overruling the appellant's repeated objections to arguments outside the record constituted nonconstitutional error). We therefore utilize the Mosley factors to determine if a mistrial should have been granted. With regard to the first factor, we do not find the improper argument by the State to be severe. While the State's comment to the jury that they did not know all of the facts that Officer Sepolio discovered in his investigation may have invited the jury to speculate, the State did not suggest to which end the jury should speculate. Cf. Thompson v. State, 89 S.W.3d 843, 850 51 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (finding reversible error where the prosecutor improperly commented that "there's something important that I cannot tell you about concerning why you should not give [appellant] anything less than ten years."). As a curative measure, the trial court immediately instructed the jury to disregard the statement. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required in the face of a curative instruction. Hawkins, 135 S.W.3d at 77; Martinez v. State, 17 S.W.3d 677, 691 (Tex.Crim.App. 2000) ("Even when the prosecutor mentions facts outside the record during argument, an instruction to disregard will generally cure the error."); With respect to the third factor, we find that appellant's conviction was fairly certain, regardless of the prosecutor's improper remark, considering the evidence that appellant confessed to shooting the complainant. We hold that the trial court did not abuse its discretion in finding that the prosecutor's improper comment to the jury was not so prejudicial that expenditure of further time and expense would be wasteful and futile. See Ladd, 3 S.W.3d at 567. We overrule appellant's final point of error. We affirm the judgment of the trial court.