IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 8, 2005
______________________________LARRY BRENT KITCHENS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;
NO. 2249, 2250 & 2305; HON. GORDON GREEN, PRESIDING _______________________________
Opinion _______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Appellant Larry Brent Kitchens appeals from three orders denying his applications for writs of habeas corpus. Through those writs, he sought the dismissal of three indictments through which he was charged with capital murder. According to appellant, the trial court was obligated to so dismiss the causes since their prosecution was barred by double jeopardy. We reverse in part and affirm in part.
BackgroundThe dispute involves the killing of three individuals, Vince Simnacher, Rhonda Kitchens, and Derwin Beauchamp. The three were attending a party at Simnacher's abode when appellant entered, leveled a firearm at Simnacher, and fired multiple shots. The bullets struck not only Simnacher but also Kitchens and Beauchamp. All three died.
The State secured four indictments against appellant charging him with capital murder. Via the first three, appellant was accused of that crime as defined in §19.03(a)(7)(A) of the Texas Penal Code. (1) That is, in Cause No. 2249, the indictment read that appellant intentionally or knowingly caused the death of Rhonda while also intentionally or knowingly causing the death of Beauchamp and Simnacher. However, through the indictment in Cause No. 2250, the State alleged that he caused the death of Simnacher while also killing Rhonda and Beauchamp, and, in Cause No. 2251, it alleged that he murdered Beauchamp while also intentionally or knowingly causing the death of Rhonda and Simnacher. Via the fourth indictment (which initiated Cause No. 2305), appellant was accused of intentionally or knowingly killing Simnacher while committing or attempting to commit burglary of Simnacher's residence. See Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon 2004-05) (stating that one commits capital murder if he murders another while, among other things, committing or attempting to commit burglary).
It was Cause No. 2251 that the State first tried. Moreover, the trial ended in appellant's acquittal. Having been acquitted of that offense, appellant then petitioned for habeas corpus, contending that double jeopardy barred the State from prosecuting the remaining indictments. The trial court disagreed and denied appellant relief. Thereafter, he appealed the decisions of the trial court.
Causes 2249 and 2250
We first address the contention that double jeopardy barred prosecution of the remaining indictments founded upon §19.03(a)(7)(A) of the Penal Code. We conclude that it does and rely on the opinion in Saenz v. State, No. P.D. 61-01, 2005 Tex. Crim. App. Lexis 980 (Tex. Crim. App. June 29, 2005, no pet. h.) to arrive at that decision. In Saenz, the Court of Criminal Appeals held that the applicable unit of prosecution when §19.03(a)(7)(A) is involved consists of the victim's murder coupled with the murders of one or more additional people during the same criminal transaction. Id. at 6. And, given that the unit of prosecution was so comprised, the legislature intended that the accused be tried under §19.03(a)(7)(A) only once for all the murders upon which the charge was based. Id. at 10. In other words, an accused could only be tried once under §19.03(a)(7)(A) for murdering the individuals named in the indictment. The decedents could not be rotated from the class of primary victim to that of aggravated circumstance to increase the chance of multiple convictions. To do so constituted double jeopardy. Saenz v. State, supra.
Like the situation in Saenz, the prosecutor at bar also used three deaths to satisfy the elements of §19.03(a)(7)(A). Those three deaths formed the allowable unit of prosecution, as did the three in Saenz. So, to use them again in a second or third indictment that also alleged capital murder under §19.03(a)(7)(A) but simply rotated the classification of the same decedents from primary victim to aggravated circumstance would run afoul of the double jeopardy clause. Saenz v. State, supra. Therefore, the trial court erred in refusing to dismiss cause numbers 2249 and 2250 under the circumstances presented to it. Morever, since the error continues to expose appellant to multiple punishments for the same offense we cannot but say it was harmful.
Cause 2305
As mentioned above, Cause No. 2305 is founded upon §19.03(a)(2). The latter permits a conviction for capital murder if the accused intentionally or knowingly caused the death of someone while committing or attempting to commit burglary. Tex. Pen. Code Ann. §19.03(a)(2) (Vernon Supp. 2004-05). As can be seen, the elements or acts encompassed under §19.03(a)(2) differ from those in §19.03(a)(7)(A). Admittedly, both require proof of murder but §19.03(a)(2) obligates the State to also prove burglary or attempted burglary while §19.03(a)(7)(A) obligates it to prove at least one more murder. Thus, the allowable unit of prosecution reflected in the indictment numbered 2305 differs from the unit of prosecution reflected in cause numbers 2249, 2250, and 2251. And, because it does, the prosecution of appellant for capital murder founded upon §19.03(a)(2) does not violate the double jeopardy clause even though Simnacher is named as the murder victim in both instances. See Vick v. State, 991 S.W.2d 830, 832-33 (Tex. Crim. App. 1999) (holding that double jeopardy does not arise where the accusation in the second indictment requires proof of an act separate and distinct from the acts alleged in the first). (2)
Accordingly, we reverse the orders entered in cause numbers 2249 and 2250 and render judgment dismissing those two causes. However, we affirm the order entered in cause number 2305.
Brian Quinn
Chief Justice
Publish.
1. Section 19.03(a)(7)(A) provides that a person commits capital murder if he commits murder and
murders more than one person during the same criminal transaction. Tex. Pen. Code Ann. §19.03(a)(7)(A)
(Vernon Supp. 2004-05).
2.
den="false" UnhideWhenUsed="false" Name="Medium Grid 1 Accent 2"/>
NO. 07-10-00421-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
AUGUST 19, 2011
FRISCO DEWAYNE TUCKER, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 43RD DISTRICT COURT OF PARKER COUNTY;
NO. CR09-0704; HONORABLE DON CHRESTMAN, JUDGE
Before CAMPBELL and HANCOCK, JJ. and BOYD, S.J.
MEMORANDUM OPINION
Appellant Frisco Dewayne Tucker entered an open plea of guilty to robbery[1] and the trial court sentenced him to fifteen years in prison. Through one issue, appellant asserts the trial court erred by failing to grant a mistrial based on the claimed improper argument of the prosecutor. We will affirm.
Background
Appellant does not challenge the sufficiency of the evidence so we will discuss only those facts necessary to our disposition of this appeal. Appellant entered a bank and presented the teller a handwritten note stating this is a bank robbery and demanding money. The teller responded by handing appellant approximately $1,700 cash.
Appellant left the bank and a search by law enforcement ensued. After a surveillance video from the bank was released to the media, a Crime Stoppers tip identified appellant as a possible suspect. A fingerprint on the note matched appellants and officers obtained a warrant to search his apartment. There they located clothing like that worn by the bank robber. During the search, appellant arrived at the apartment and was arrested pursuant to a warrant. Appellant provided officers a video statement which was received in evidence at a pre-trial suppression hearing and at trial. Appellant presented three witnesses in mitigation of punishment. Appellant did not testify but was placed under oath and stated in open court he did not wish to testify.
The following exchange occurred near the end of the States rebuttal argument on punishment:
Prosecutor: And then one thing just real briefly with regard to his age. Yes, he is young. No question. But a lot of other young people that say, Im sorry. I made a mistake. Im sorry. I feel awful about it. Im sorry, I was young and stupid, or even I had a drug problem and Im sorry. I have yet to hear one word of remorse or apology from this defendant either on that video or from one of these other witnesses--
Defense Counsel: Im going to object, Your Honor, commenting on the defendants failure to testify in the case.
Prosecutor: And Judge, I certainly didnt mean to give that indication. If I did, I withdraw that. But--
The Court: All right. The objection is sustained. I will consider it withdrawn.
Prosecutor: Judge, what Im saying to you is that we heard from two people who were close to him who talked about talking about that with him, about the robbery with him. We heard from him on the video for two hours, and there was no remorse and there was no apology for any--
Defense Counsel: Judge, Im going--
Prosecutor: Judge--
Defense Counsel: --to have to object at this time also for the same reasons. This is another comment on failure to testify. Its in violation of the previous order of the court on previous objection. And its going to trigger the requirement for a mistrial. In addition, other people cannot offer remorse of the defendant. Thats not admissible evidence.
The Court: Ive already sustained the objection. Im not going to consider it. Im going to consider it withdrawn.
Defense Counsel: And the mistrial is denied?
The Court: Denied.
Defense Counsel: Thank you, Your Honor.
Prosecutor: Judge, my point is we listened to that tape. And you cant hear it on that tape because its not there. And thats something I think the court needs to consider.
The Court: All right. Thank you. All right. Please stand.
The court then imposed sentence on appellant. Appellant now appeals.
Analysis
Through one issue, appellant asserts the trial court reversibly erred by denying his motion for mistrial.
We turn first to the States argument that appellants issue was not preserved for our review. As noted, after the trial courts denial of appellants motion for mistrial, the prosecutor continued:
Judge, my point is we listened to that tape. And you cant hear it on that tape because its not there. And thats something I think the court needs to consider.
Although the argument reiterated the prosecutors claim appellant failed to express remorse in his recorded statement, no further objection was made.
To preserve error to an improper jury argument, a party must pursue an objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Preservation also requires a party object to each occurrence of improper argument. Dickerson v. State, 866 S.W.2d 696, 699 (Tex.App.--Houston [1st Dist.] 1993, pet. refused) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991)). We agree with the State that by not renewing his objection when the prosecutor again referred to a claimed absence of expressed remorse in appellants statement, appellant forfeited his appellate complaint. Dickerson, 866 S.W.2d at 699; Tex. R. App. P. 33.1(a).
Moreover, even if we are mistaken in our holding regarding preservation, there are other reasons we would not reverse the courts judgment for failure to grant a mistrial. A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). [T]he question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis. . . . In effect, the trial court conducts an appellate function: determining whether improper conduct is so harmful that the case must be redone. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). To determine if the trial court abused its discretion in denying a motion for mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed). Id.
Severity of the misconduct. The prosecutor pointed to the failure of appellant to express remorse or apology during his video statement or to elicit testimony of such from his witnesses. But the trial court was not required to consider the prosecutors argument as referring to appellants failure to testify at trial. Rather, the court could have regarded his assertion to concern the content of a piece of evidence, appellants statement, and the testimony of his witnesses. See Wolfe v. State, 917 S.W.2d 270, 280 (Tex.Crim.App. 1996) (citing Lopez v. State, 170 Tex. Crim. 208, 339 S.W.2d 906, 910-911 (Tex.Crim.App. 1960) (A reference to the defendant not telling everything where the prosecutor was discussing a written statement made by the defendant has been held not to be a comment on the failure to testify but a reference to the written statement). Further, it is not improper for the prosecutor to comment on a defendants failure to produce testimony from witnesses other than the defendant. See Wolfe, 917 S.W.2d at 279 (A prosecutor cannot comment on the lack of evidence presented where that comment necessarily refers to the defendants failure to testify, but language that can reasonably be construed as a failure to present evidence other than the defendants testimony is not a comment on the failure to testify).
Curative measures. This was a bench trial. It was once presumed in bench trials that the trial court did not consider improper argument. Juarez v. State, 439 S.W.2d 346, 347 (Tex.Crim.App. 1969). Even if we may no longer engage in that presumption, cf. Gipson v. State, 844 S.W.2d 738, 740-41 (Tex.Crim.App. 1992) (presumption that court in bench trial did not consider improper evidence abolished as issue now subsumed in harm analysis), the trial court sustained appellants objection, considered the prosecutors statement withdrawn, and afforded it no consideration. On this record, even assuming some impropriety of argument, the remedial measures of the trial court were sufficient to ameliorate any harm.[2]
Effect on punishment. Appellant plead guilty to bank robbery. Punishment evidence showed he had prior convictions for burglary of a vehicle, larceny (in Oklahoma), and credit card abuse. There was also evidence that appellant threatened to kill and beat to death an officer attempting to execute a warrant for his arrest. Appellants punishment was within the range authorized by statute, and was not at the high end of the range. Appellant has not demonstrated from the record how the prosecutors argument affected his punishment.
We see no abuse of discretion in the trial courts denial of appellants motion for a mistrial. For these reasons, appellants sole issue is overruled, and the judgment of the trial court is affirmed.
James T. Campbell
Justice
Do not publish.
[1] Tex. Penal Code Ann. § 29.02(a)(2) (West 2003). Robbery is a second-degree felony carrying a punishment range of confinement for any term of not more than 20 years or less than 2 years. Tex. Penal Code Ann. § 12.33(a) (West Supp. 2011). Punishment may also include a fine of not more than $10,000. Id. at § 12.33(b).
[2] The error in commenting on a defendants refusal to testify arises from the Fifth Amendment right of an accused to remain silent. Sheffield v. State, No. 06-07-0116-CV, 2008 Tex. App. Lexis 3617, at *16-*18 (Tex.App.--Texarkana May 21, 2008, no pet.) (mem. op. not designated for publication) (citing Griffin v. California, 380 U.S. 609, 613, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965)); see U.S. Const. amend. V; Tex. Code Crim. Proc. Ann. art. 38.08 (West 2005). In a jury trial, only the most blatant comments on the failure of a defendant to testify are incurable by instruction. Moore v. State, 999 S.W.2d 385, 405-06 (Tex.Crim.App. 1999) (quoting Dinkins v. State, 894 S.W.2d 330, 356 (Tex.Crim.App. 1995)). Here there was no jury to instruct, but we have no doubt the trial court was well aware of the constitutional and statutory protection from self-incrimination. And the comments of the prosecutor, even if improper, are hardly blatant transgressions of appellants right to remain silent.