IN THE
TENTH COURT OF APPEALS
No. 10-04-00153-CR
Julius Archie,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2003-1082-C
CONCURRING AND DISSENTING Opinion
Julius Archie was convicted of assault and assault—family violence, enhanced. He was sentenced to one year in jail for the assault and to ten years in prison for the enhanced family violence assault. Because the Double Jeopardy Clause is not implicated in this case and because the trial court did not err in overruling Archie’s motion for mistrial, I would affirm the trial court’s judgment in its entirety.
Double Jeopardy
In stating his first issue, Archie contends the trial court abused its discretion in failing to require the State to elect whether to proceed on count 1 or count 2 once it became clear that the State had presented the same evidence to support both counts, which resulted in, as Archie claims, Archie being punished twice for the same conduct. However, Archie’s entire argument is devoted only to the notion that he was punished twice for the same conduct in violation of the Double Jeopardy Clause. This is the argument to be addressed.
Archie argues that because the court and the State agreed that his conduct was the same for both charged offenses, he was punished twice for the same offense. Archie mischaracterizes the conversation between the trial court and the State. And, although Archie cites Hawkins for the proposition that the allowable unit of prosecution is the victim, he fails to make any connection between Hawkins and his convictions. See Ex parte Hawkins, 6 S.W.3d 554 (Tex. Crim. App. 1999). Nevertheless, Hawkins is distinguishable because it involved one act of theft being charged as two robbery offenses when two victims were involved. That is not the case here.
Archie first assaulted the victim in her car while she was driving. Archie hit her on the right side of her head which caused her to strike the left side of her head on the window of the car. The left side of her head was cut. The next assault began after 1) Archie took over driving, 2) they arrived at the victim’s house where both she and Archie attempted to clean the cut, and 3) the victim sat on the end of the bed while Archie argued with her. Clearly, two distinct assaults occurred, and the Double Jeopardy Clause is not implicated. See Blockburger v. United States, 284 U.S. 299, 301-302, 52 S. Ct. 180, 76 L. Ed. 306 (1932); Hawkins, 6 S.W.3d at 557, fn 8. Archie’s first issue is properly overruled, and I concur in the affirmance of his conviction.
Motion for Mistrial
In his second issue, Archie contends the trial court erred in overruling his motion for mistrial after the State improperly commented on Archie’s failure to testify at the punishment phase of the trial. During the punishment phase, the trial court sustained an objection to a portion of the State’s argument which Archie characterized as a comment on his failure to testify. An instruction was given to the jury, and Archie’s motion for mistrial was overruled.
Although neither Archie nor the State cite this case, last year, the Court of Criminal Appeals set the standard for reviewing the denial of a motion for mistrial following a sustained objection to improper argument at the punishment phase of a trial. Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004). When the trial court sustains an objection and grants a request for an instruction for the jury to disregard but denies the motion for mistrial, the proper issue is whether the refusal to grant the mistrial was an abuse of discretion. Id. at 76-77. To determine whether the trial court abused its discretion in denying the mistrial, we balance three factors: 1) the severity of the misconduct, 2) curative measures, and 3) the certainty of the punishment assessed absent the misconduct. Id. at 77.
During the punishment phase, the prosecutor argued,
That’s what he does. You’ve heard that now from two people. You heard no evidence to the contrary as to Bria Alexander, the second victim. You heard no denial. That was just accepted.
The argument could be interpreted as a comment on Archie’s failure to testify. However, it could also be interpreted as a statement that there was no denial of abuse from the witness, a former girlfriend of Archie’s, unlike Archie’s current girlfriend who denied abuse even though Archie would pull her back if she walked away during an argument and had pinned her up against the wall on previous occasions during arguments. The prosecutor did not make any more comments of this nature. In sustaining Archie’s objection, the trial court gave an instruction that the jury would follow the court’s instructions. In the charge to the jury, the jury was instructed not to refer to or allude to Archie’s decision not to testify and not to take his decision into consideration for any purpose as a circumstance against him. Although Archie was sentenced to the maximum punishment for each offense, the jury heard about Archie’s seven prior misdemeanor convictions, which included a violation of a protective order conviction and an assault conviction, and one prior felony conviction. Archie’s past history is a more likely reason for the length of the sentences than the statement by the prosecutor.
Thus, the trial court did not abuse its discretion in overruling Archie’s motion for mistrial, and his second issue should be overruled.
Responding to the Dissent of Justice Vance
In his dissenting opinion, Justice Vance has opined that he would reverse the conviction for assault-family violence. As he notes in his opinion, the issue on which he would reverse the conviction was not identified by the parties, much less presented or briefed by the parties. We have been told repeatedly that it is improper for us to identify, brief, and decide an issue not raised. Neal v. State, 150 S.W.3d 169, 180 (Tex. Crim. App. 2004); Gerron v. State, 97 S.W.3d 597 (Tex. Crim. App. 2003); Hailey v. State, 87 S.W.3d 118, 121-122 (Tex. Crim. App. 2002). There may be a time, place, and manner in which this issue can be properly raised and addressed, but the method used by Justice Vance is not it. The parties have not had the opportunity to frame and brief the issue. This violates one of the fundamental tenants of the adversarial form of our judicial system because Justice Vance has shed his judicial robe and has become the advocate for the defendant. Until the issue is properly presented, and to maintain my proper role as a judge, it is necessary that I refrain from deciding the issue raised by Justice Vance.
Conclusion
Having overruled each issue on appeal, I would affirm the trial court’s judgment in all respects.
TOM GRAY
Chief Justice
Opinion concurring in part and dissenting in part delivered and filed November 2, 2005
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