Court of Appeals of Texas, Fifth District, DallasFeb 2, 2007
Nos. 05-05-00715-CR, 05-05-00720-CR (Tex. App. Feb. 2, 2007)

Nos. 05-05-00715-CR, 05-05-00720-CR.

Opinion issued February 2, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 291st District Court, Dallas County, Texas, Trial Court Cause Nos. F03-58852-VTU; F03-58853-VTU.

Before Justices BRIDGES, FITZGERALD, and RICHTER. Opinion By Justice BRIDGES.



Londell Tradon Murphy appeals his aggravated assault conviction in cause number 05-05-00715-CR and murder conviction in cause number 05-05-00720-CR. A jury convicted appellant and sentenced him to ten years' confinement in cause number 05-05-00715-CR and thirty-five years' confinement in cause number 05-05-00720-CR. In five points of error, appellant challenges the legal and factual sufficiency of the evidence supporting his convictions and argues the trial court erred in failing to grant his motion for mistrial. We affirm the trial court's judgments. On November 26, 2003, Glenn Timmons and Bryan Witcher were in a convenience store parking lot in Dallas. As Timmons was approaching a pay phone, appellant and his twin brother came around the corner, and one twin stabbed Timmons in the stomach and the other stabbed him in the back. Timmons knew appellant and his brother as "the twins," and he recognized them and knew where they lived. The twins walked up to Witcher and stabbed him. Although Timmons could not tell the twins apart, he saw "both of them hands moving with kitchen knives." Witcher "took off running" with the "other [twin] still trying to stick him." Timmons ran after Witcher and followed him to Dallas police officer Tyrone Wall's nearby police car. Witcher was holding his heart and fell to the pavement, hitting his head. Timmons could tell Witcher was dead. Wall called for backup, and ambulances carried Timmons and Witcher to the hospital. Timmons underwent surgery and was hospitalized for a week. Although Dallas police detective Miguel Sarmiento questioned Timmons in the hospital, Timmons did not reveal the identities of his attackers because he was "mad" and it was "going to be a personal matter." When Timmons first got out of the hospital, he carried a machine gun and walked down the street where appellant and his brother lived. However, Timmons did not see appellant or his brother, and after about a week Timmons told Sarmiento who had stabbed him and Witcher. Timmons identified appellant and his brother from a photographic lineup and told Sarmiento where they lived. Sarmiento sent Dallas police officer Mike Epple to the apartment appellant shared with his brother. Epple recovered two pairs of shorts which he packaged and sent to the laboratory for testing. Kimberlee Allen, a DNA analyst at the Southwest Institute of Forensic Sciences, tested the shorts and found a genetic marker matching Witcher and genetic markers matching appellant and his twin brother. Because appellant and his brother were twins, Allen testified, she was not able to identify which brother was the source of the markers. At the conclusion of the evidence, the jury convicted appellant of aggravated assault against Timmons and the murder of Witcher. These appeals followed. In his first, second, third, and fourth issues, appellant argues the evidence is legally and factually insufficient to show he committed aggravated assault or murder. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only "to a very limited degree." Marshall v. State, No. AP-75,048, slip op. at 7, 2006 WL 3733198, at *5 (Tex.Crim.App. Dec. 20, 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determinations). A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). A person commits aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to an individual and uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2006-07). Appellant argues that Timmons' delayed identification of appellant was not credible because Timmons did not immediately identify appellant and his brother as the men who attacked him and Witcher. Further, appellant argues the genetic evidence found in appellant's apartment failed to show a convincing genetic link between the shorts and either Timmons or Witcher because the "tenuous link" to Witcher was also a link to over fifty percent of the African-American population. Nevertheless, the jury was free to believe Timmons' testimony that he recognized appellant and his brother at the time of the attack, was stabbed by appellant and his brother, witnessed appellant and his brother stabbing Witcher, and delayed identifying appellant and his brother because he wanted to exact personal vengeance on them. See Margraves, 34 S.W.3d at 919 . Under the facts and circumstances of these cases, we conclude the evidence is legally and factually sufficient to support appellant's convictions. See Jackson, 443 U.S. at 319; Watson, 204 S.W.3d at 415. We overrule appellant's first, second, third, and fourth issues. In his fifth issue, appellant argues the trial court erred in denying his motion for a mistrial when the prosecutor argued facts outside the record. Specifically, appellant complains of the prosecutor's argument to the jury that "You want to stop people from getting stabbed because [their] friends were in a fight with a couple of guys." In response to this statement, appellant's counsel stated "That's way outside the record," and the trial court responded that "The jury will recall the evidence." The prosecutor further argued, "You want to stop them, stop people from getting their submachine guns," and appellant's counsel objected that this was "an argument outside the record." The trial court sustained this objection and instructed the jury to disregard "the last statement by the prosecutor." However, the trial court denied appellant's motion for a mistrial. A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). Mistrial is appropriate for only "highly prejudicial and incurable errors." Id. (citing Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000)). It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile. Simpson, 119 S.W.3d at 272. The trial court is required to grant a motion for a mistrial only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648. Here, assuming appellant's objection preserved his argument for our review, we cannot conclude the trial court abused its discretion in denying his motion for a mistrial. See Simpson, 119 S.W.3d at 272. The prosecutor's argument concerning people getting stabbed because their friends "were in a fight with a couple of guys" apparently refers back to testimony earlier in the trial that Witcher and his friends were in a separate fight with the "twins from Oklahoma." The testimony concerning the earlier fight was developed in a sub rosa examination outside the presence of the jury. At the end of the testimony concerning the earlier fight, the trial court sustained appellant's objection to the testimony. When the jury was returned to the courtroom, the trial court instructed the jury to disregard the prosecutor's question concerning an earlier fight and not to consider it for any purpose. To the extent the prosecutor referred back during closing argument to this excluded testimony, such a reference was improper; however, we cannot conclude such an obscure reference was so prejudicial that expenditure of further time and expense would be wasteful and futile. See Simpson, 119 S.W.3d at 272. Further, we conclude the trial court's instruction to disregard cured any error, and no mistrial was warranted. See Russeau v. State, 171 S.W.3d 871, 885 (Tex.Crim.App. 2005). We overrule appellant's fifth issue. We affirm the trial court's judgments.