IN THE
TENTH COURT OF APPEALS
No. 10-05-00331-CR
Johnnie Brian Cranford,
Appellant
v.
The State of Texas,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 04-01229-CRF-272
MEMORANDUM Opinion
Cranford appeals his conviction for possession of cocaine. See Tex. Health & Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2005), § 481.115(a)-(b) (Vernon 2003). We affirm.
Factual Sufficiency of the Evidence. In Cranford’s first issue, he contends that the evidence that he knowingly or intentionally possessed cocaine was factually insufficient. “‘Possession’ means actual care, custody, control, or management.” Tex. Penal Code Ann. § 1.07(a)(39) (Vernon Supp. 2005). “In a factual-sufficiency review, we view all of the evidence in a neutral light . . . .” Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App.), cert. denied, 126 S. Ct. 481 (2005); accord Clewis v. State, 922 S.W.2d 126, 128-36 (Tex. Crim. App. 1996). “There are two ways in which a court may find the evidence to be factually insufficient . . . .” Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). “[W]e set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.” Prible at 730-31; accord Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). “A clearly wrong and unjust verdict occurs where the jury’s finding is ‘manifestly unjust,’ ‘shocks the conscience,’ or ‘clearly demonstrates bias.’” Prible at 731 (quoting Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997)). “[T]he jury [in determining the verdict] should consider the totality of the direct or circumstantial evidence and the reasonable inferences which may be drawn therefrom, in determining whether it was sufficient to establish guilt beyond a reasonable doubt.” Desselles v. State, 934 S.W.2d 874, 879 (Tex. App.—Waco 1996, no pet.) (quoting Hankins v. State, 646 S.W.2d 191, 199 (Tex. Crim. App. 1983) (op. on reh’g)) (2d alteration in Desselles).
Cranford does not point to any evidence contrary to the verdict, and argues only that the evidence was too weak to support the findings that he knew that the substance in his pocket was cocaine or that it was in his pocket. Cranford points out that he was found unconscious and arrested for public intoxication. See Tex. Penal Code Ann. § 49.02(a) (Vernon 2003). The State points to evidence that an inhaler containing cocaine was found inside Cranford’s pocket after he was arrested. The presence of controlled substances in the defendant’s pocket is strong evidence that the defendant intentionally or knowingly possessed them. See Coleman v. State, No. 10-04-00237-CR, 2005 Tex. App. LEXIS 5235, at *1-*2 (Tex. App.—Waco July 6, 2005, no pet.) (not designated for publication) (mem. op.); White v. State, 155 S.W.3d 927, 929 (Tex. App.—Amarillo 2005, pet. ref’d); Mason v. State, 99 S.W.3d 652, 654, 657 (Tex. App.—Eastland 2003, pet. ref’d). The evidence that Cranford intentionally or knowingly possessed cocaine was not so weak that the guilty verdict was clearly wrong or manifestly unjust. Thus the evidence was factually sufficient. Accordingly, we overrule Cranford’s first issue.
Motions for Mistrial. In Cranford’s second and third issues, he contends that the trial court erred in overruling Cranford’s motions for mistrial. “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 v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). “[Wh]ere[] the trial court sustain[s] the defense objection and grant[s] the requested instruction to disregard,” “[t]he only adverse ruling—and thus the only occasion for making a mistake—[i]s the trial court’s denial of the motion for mistrial.” Hawkins at 76, 76-77. “Under those circumstances, the proper issue is whether the refusal to grant the mistrial was an abuse of discretion.” Id. at 77. “An appellate court reviewing a trial court’s ruling on a motion for mistrial must utilize an abuse of discretion standard of review . . . .” Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004); see Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App. 2005). We “must uphold the trial court’s ruling if that ruling was within the zone of reasonable disagreement.” Wead at 129; see Prible, 175 S.W.3d at 731; Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). “Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.” Hawkins at 77.
“On appeal, we generally presume the jury follows the trial court’s instructions in the manner presented.” Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); see id. n.10; accord Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995).
Closing Argument. In Cranford’s second issue, he contends that the trial court erred in overruling Cranford’s motion for mistrial premised upon the State’s closing argument. Cranford contends that the State’s argument struck at him over the shoulders of his counsel. See Flores v. State, 155 S.W.3d 144, 151 (Tex. Crim. App. 2004); Mosley v. State, 983 S.W.2d 249, 258-60 (Tex. Crim. App. 1998); Bray v. State, 478 S.W.2d 89, 89-90 (Tex. Crim. App. 1972). Cranford complains of the following italicized closing argument by the State:
[T]he law says any amount of drugs. It doesn’t say you get a free pass if it’s less than a gram. It doesn’t—as we talked about in voir dire yesterday, any amount is a violation of the law. And it doesn’t—between all the smoke and mirrors and the grasping of straws that [Cranford’s counsel] has thrown out, it makes no difference—
“Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel’s argument, or (4) a plea for law enforcement.” Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); accord Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex. Crim. App. 1973). We assume without deciding that the argument was improper. See Mosley, 983 S.W.2d at 259.
Any error, however, was harmless. “Any other error, defect, irregularity, or variance” other than constitutional error, “that does not affect substantial rights must be disregarded.” Tex. R. App. P. 44.2(b). We “consider[] three factors when assessing the impact of the harm arising from jury argument error under Rule of Appellate Procedure 44.2(b), for non-constitutional error: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).” See Threadgill v. State, 146 S.W.3d 654, 666-67 (Tex. Crim. App. 2004); Mosley, 983 S.W.2d at 259. Cranford concedes that the first two factors favor the State. Cranford contends that the third factor favors him. For the reasons stated above, however, the evidence was not weak. The trial court did not abuse its discretion in overruling Cranford’s motion for mistrial. We overrule Cranford’s second issue.
Testimony. In Cranford’s third issue, he contends that the trial court erred in overruling Cranford’s motion for mistrial premised upon a witness’s testimony. Cranford contends that the testimony constituted a comment on post-arrest silence. See U.S. Const. amend. V; Greer v. Miller, 483 U.S. 756, 761-63 (1987); Doyle v. Ohio, 426 U.S. 610 (1976); Tex. Const. art. I, § 10; Garcia v. State, 126 S.W.3d 921, 923-24 (Tex. Crim. App. 2004); Dinkins, 894 S.W.2d at 356-57.
Cranford complains of the following italicized testimony on the State’s direct examination of a police officer:
Q. After you placed [Cranford] in custody, did you have the opportunity to search him?
A. Yes, sir. . . . .
Q. Did you find anything?
A. Yes, sir. In his front left pants pocket I found what appeared to be a small inhaler. . . . .
. . . .
Q. What was his demeanor after you found this?
A. Once I found that, Mr. Cranford wouldn’t speak any more. I set them in front of him and asked what it was and he quit talking at that point.
Cranford also complains of the following italicized testimony:
Q. You said he had been talking incoherently and vulgarly—
A. Yes.
Q. —before he was placed in custody?
A. Yes.
Q. Did that continue?
A. No, sir, it did not.
As to the latter testimony, Cranford forfeited his complaint. “As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion . . . .” Tex. R. App. P. 33.1(a). “Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . [,] all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).” Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004) (quoting Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004)) (ellipsis in Neal); accord Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005); see Marin v. State, 851 S.W.2d 275, 277-80 (Tex. Crim. App. 1993). Cranford did not object to the testimony. Accordingly, Cranford forfeited his complaint as to the testimony.
As to the former testimony, moreover, the trial court did not err. “[O]rdinarily, a prompt instruction to disregard will cure error associated with an improper question and answer.” Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (quoting Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000)). “A mistrial is required 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.” Russeau, 171 S.W.3d at 885; accord Simpson at 272. “We defer to the trial court’s conclusion on whether an instruction to disregard would have cured the problem. Moreover, the trial judge is in the unique position of being able to observe the reaction of the jury and gauge the impact of an improper question . . . .” Ex parte Lewis, 165 S.W.3d 376, 385 (Tex. App.—Fort Worth 2005, pet. granted on other grounds) (internal citation omitted) illH.
Immediately upon Cranford’s objection, the trial court thoroughly instructed the jury: “Members of the jury, you are instructed to disregard the previous statement. You are also instructed that a person’s refusal to testify or refusal to speak to the police cannot be taken in any circumstance as a circumstance against them.” Accordingly, the trial court did not abuse its discretion in overruling the motion for mistrial.
We overrule Cranford’s third issue.
CONCLUSION. Having overruled Cranford’s issues, we affirm.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance concurring with note)*
Affirmed
Opinion delivered and filed April 26, 2006
Do not publish
[CR25]
* “(Justice Vance concurs in the judgment with a note: I do not join the majority opinion for two reasons. First, we have recently written extensive, published opinions on the review of the failure to grant a mistrial. Perez v. State, 2006 WL 133575, at *1-2 (Tex. App.—Waco January 18, 2006, no pet. h.); Lewis v. State, ___ S.W.3d ___, 2006 WL 727697, at *3-6 (Tex. App.—Waco March 22, 2006, no pet. h.). We should cite our own authority, when applicable. Second, the opinion says we “defer to the trial judge’s” conclusion about the effectiveness of an instruction to disregard. We have not done so before, and the cases relied on by the majority do not support the proposition. What they do support is deference to the trial judge’s determination that an instruction would not be effective and the decision to grant a mistrial, when the issue for appellate review is whether double jeopardy bars a retrial. See Bowen v. State, 131 S.W.3d 505, 509 (Tex. App.—Eastland 2004, pet. ref’d) (citing State v. Lee, 15 S.W.3d 921 (Tex. Crim. App. 2000))).)”