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Order filed November 30, 2006
In The
Eleventh Court of Appeals
__________
No. 11-05-00039-CR
__________
FRANCES KAY HERMAN, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 9304
O R D E R
Our former opinion and judgment dated November 2, 2006, are withdrawn, and our opinion and judgment dated November 30, 2006, are substituted therefor.
PER CURIAM
November 30, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: McCall, J.,
Strange, J., and Hill, J.[1]
Opinion filed November 30, 2006
In The
Eleventh Court of Appeals
__________
No. 11-05-00039-CR
__________
FRANCES KAY HERMAN, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 9304
O P I N I O N
Frances Kay Herman (Fran) appeals her conviction by a jury of the offense of murder. The jury assessed her punishment at thirty years confinement in the Texas Department of Criminal Justice, Institutional Division, and a fine of $5,000. In three issues, Fran contends that the evidence is legally and factually insufficient to support her conviction and that the trial court erred by denying her motion for mistrial based on the State=s improper argument applying the parole law. We affirm.
Fran argues in issues one and two that the evidence is legally and factually insufficient to support her conviction because the State failed to prove that she intentionally and knowingly caused the death of her husband, William Anderson Herman. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trial of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (1979). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 2006 WL 2956272, at *8 (Tex. Crim. App. Oct. 18, 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 2006 WL 2956272, at *8; Johnson, 23 S.W.3d at 10-11.
Crystal Kropp testified that on November 22, 2003, she was working for Jones County Dispatch, which was basically the 9-1-1 office. She said that in the early morning hours of that day, at 5:10 a.m., she received a phone call from someone named Linda Rutledge. According to Kropp, Rutledge told Kropp that Fran called Rutledge to say that she and her husband had had a disturbance and that he had accidentally shot himself. Kropp recounted that Rutledge told her the Hermans were in a gold or green pickup on the road to Fort Phantom. Kropp indicated that she received a second call at 5:28 a.m. from the residence of Steve Brazee. She testified that the caller indicated that her neighbors were arguing outside and that one of them had been shot.
On cross-examination, Kropp acknowledged that she never talked to Fran and did not know what she told Rutledge or anyone else. She indicated that she believed the caller from the Brazee residence was Margaret Brazee.
Margaret Brazee testified that about 5:00 or 5:30 a.m. on November 22, 2003, she heard Fran banging the door. She indicated that Fran was upset and was saying that her husband Will had been shot. Margaret indicated that she and her husband went out to the road where Will was. She stated that Fran wanted her to help get Will in the pickup so Fran could take him home because he was hurt. Margaret related that her husband, Steve, knowing Will was dead, told her to get a sheet, call 9-1-1, the sheriff, and then cover Will with the sheet. Margaret testified that she went into the house, got the sheet, called 9-1-1, came back out, and tried to help Fran get Will into the pickup. Margaret said she did not think Will was dead. She indicated that at that point her husband insisted they leave Will alone because he was dead.
Margaret testified that after the sheriff came she and Fran went into her house. She said she loaned Fran some sweats because the officers needed her clothes and shoes. She stated Fran was still crying and upset. She indicated that off and on she would see tears. Subsequently, she said she did not notice any tears in the house.
Margaret testified that Fran told her that Will was shot when she and Will were fighting over a gun. She indicated that Fran said she thought she had her finger on the trigger and it might have gone off and that she and Will were wrestling over it. She said Fran washed her hands after she asked her if she wanted to clean up. On cross-examination, she acknowledged that Fran was upset, concerned, and trying to help her husband and that Fran told her she was afraid that she had lost her soul mate.
Larry Allen Moore testified that on November 22, 2003, he was the sheriff of Jones County. He stated that he went to the scene and identified William Herman. The body was then transferred to the Tarrant County Medical Examiner=s Office in Fort Worth.
Caesar Melendez testified that on November 22, 2003, he was employed as a deputy sheriff for the Jones County Sheriff=s Department. He said that he received a call about 5:30 a.m. from 9-1-1 dispatch that there had been an accidental shooting that had occurred out of a domestic disturbance. According to Deputy Melendez, the dispatcher gave the address as that of the Brazee residence. He indicated that he found Fran inside the residence crying but that he did not see any tears. He said she told him her husband Will had shot himself. He related that she had blood on her clothing and body, except for her hands.
Deputy Melendez identified State=s Exhibit No. B-2 as showing the garage area of the Herman residence, indicating that that was where the initial large pool of blood was found. He identified a spent .22 long rifle shell casing located inside the house, approximately twelve feet from the doorway leading to the garage. He also related that there was another spent casing found at the scene of the body and another found jammed in the mechanism of the rifle, indicating that three shots had been fired. He noted that the initial blood splatter was between a pickup and a weight machine inside the garage. Deputy Melendez stated that, in his opinion, the body had been moved a little from where it initially fell. He said that he believed it initially fell where the large area of blood was. Deputy Melendez also identified a gold wedding band found approximately four feet from Will=s head. He indicated that the body was found, along with the green pickup, 698 feet from the Herman residence. He related that there was a trail of blood along the road. He acknowledged that no bullets, including the bullet that killed Will Herman, were ever found.
Deputy Melendez testified that the entrance wound was on the left side of the body and the exit wound was on the right side. On cross-examination, Deputy Melendez acknowledged that he did not know when the shell casing that was found inside the residence twelve feet from the door leading to the garage was fired. He said that no blood was found inside the residence.
On redirect examination, Deputy Melendez testified that Fran reenacted with an investigator her struggle with Will for the gun. He said she demonstrated that they were four to six inches apart with the weapon pointing up. He indicated that the bullet appeared to travel level. He stated that he did not believe that such a struggle would cause the wound that Will suffered. He expressed his opinion that the wound did conform to the theory that someone stood at the door, fired the weapon, and ejected the shell. Deputy Melendez confirmed that there was a drop between the door and the floor of the garage, which he believed would be consistent with the bullet passing through lower on the other side. After acknowledging that one would not have a clear shot from the doorway to the pool of blood found in the garage area, Deputy Melendez expressed his opinion that it was not likely that anyone shot from the doorway. On redirect examination, Deputy Melendez testified that there was no obstruction from the inner edge of the door to where the blood started. Later, Deputy Melendez said that he was not sure whether there was such an obstruction and then said that, to his knowledge, there was no obstruction. Deputy Melendez finally acknowledged that it would be fair to say that in his opinion it was possible for someone to have shot from the doorway, but not likely. He insisted that he really could not remember because it was so long ago.
Felix Ortiz, Chief Deputy for the Jones County Sheriff=s Department, testified that on the occasion in question he went to the scene where Will=s body was located. He stated that the entrance wound was under the left ear and that the exit wound was under the right ear. He said that Fran told him that, after she and Will had awakened early, they argued over their finances but that each prepared to go to their job as prison guards. He indicated that she told him that, while she was loading her lunch and snacks into her vehicle, Will entered the residence and returned with the rifle. Chief Deputy Ortiz said she told him that she approached Will, thinking he was going to shoot her, the dogs, or himself. She indicated that the gun accidentally discharged as they were fighting over the gun. He related that she said she saw blood on Will and that Will started running with the gun.
Chief Deputy Ortiz testified that in a later discussion with Fran she said that, after the gun discharged, Will started running but she had the gun. He said that she told him she did not know why she did not drop the gun. Later, Chief Deputy Ortiz acknowledged that it was probably not uncommon to get such details confused. He related that she stated she had been unable to reach 9-1-1 after running back to the house but that she did reach a Mrs. Rutledge. Chief Deputy Ortiz stated that that was not probable because if she could have reached Mrs. Rutledge she could have reached 9-1-1. He acknowledged that she said Mr. Rutledge was an EMT and would know what to do. He also acknowledged that the projectile fired from the rifle was never found, despite extensive effort. Referring to the reenactment that Fran did for an investigator, Chief Deputy Ortiz stated that, if the struggle happened like Fran demonstrated, the entrance and exit wounds would not have been where they were and that it was not possible. Chief Deputy Ortiz indicated that the only thing between the door leading to the garage and where the blood started was Will=s pickup. He said there was no obstruction between the door and where the blood started. He repeated that Will=s body was found about 698 feet from the garage. He noted that there were spent shell casings found near the body. He said that two unspent shell casings matching the others and a change of address form for Will were found in Fran=s purse located in the pickup. He stated investigators also found a paper in Fran=s purse with the word Arevenge@ on it that contained revenge tactics to get back at someone. On the back of the paper, it was written, AJalapeno pepper juice on underwear, baby oil on windshield wipers, stink bait put in hubcaps, crickets in his trailer, call his utility company, nitroglycerin tabs and revenge.@ Chief Deputy Ortiz recalled that, while Fran was distraught and crying, he never saw her shed a tear. On cross-examination, Chief Deputy Ortiz acknowledged that he was not aware of how Fran expressed sorrow and despair and that he was aware that people exhibit despair or sadness differently.
On cross-examination, Chief Deputy Ortiz acknowledged that no work charting the trajectory of the bullet that struck Will had been done. Chief Deputy Ortiz identified photographs showing bloodstains on the gate that Fran told him she had crawled over to get to the Brazee house. He acknowledged that he also found bloodstains on the sidewalk, which was consistent with Fran telling him she had gone up to the house.
Chief Deputy Ortiz testified that it would not be possible for a spent shell casing arising from a fight over a gun in the garage to end up inside the house. He indicated that a shot from the doorway would be consistent with the location of the shell casing. He said Fran did not account for two more rounds fired at the scene where Will died. However, he then recounted that her first version was that Will had the gun and they struggled for it out on the county road and that her second version was that Will lunged for the gun after she had laid it down, resulting in another struggle over the weapon. Chief Deputy Ortiz confirmed that it was not unusual in a murder investigation for the projectile that killed the individual not to be found.
Lois Suzette Carufel testified that she worked for Kinder Hearts Pediatric Home Health and that on the occasion in question she was working at the Robertson Unit of the Texas Department of Criminal Justice. She said that on November 21, 2003, she had had a conversation with Fran about getting even with ex-husbands, mentioning certain things she had done to hers. She indicated Fran was upset with her husband because Fran was working three jobs to his one and was trying to get the bills paid while he was out drinking with his buddies. Fran had also said her husband was living in a trailer, wanted a divorce, and wanted to sell the house and give her less than half the proceeds. She acknowledged that Fran had never indicated she was going to try to hurt or kill her husband and that she had never seen any evidence of that kind of anger on Fran=s part.
Marvin Rutledge, a retiree from the Texas Department of Criminal Justice, testified that he met Will Herman when Will came back from Bosnia. He indicated Will brought six guns to him to store. Rutledge indicated that there was a weapon missing, a .22 rifle. He said he believed it was a Mossberg. He related that Will was planning on staying at a trailer on his farm. Rutledge indicated that Will told him that Fran had broken into his gun case and taken out the .22 rifle.
Rutledge testified that Will asked him to keep the guns and not let Fran know that he had them. He related that Will acted like he was scared to death that she was going to find them. Rutledge said Will told him that he was afraid Fran was going to shoot him. He indicated that, on the day before he was shot, Will said that if he was accidentally shot not to let Fran get away with it. Rutledge acknowledged that Will and Fran were trying to work out their marital problems.
James Cate, an employee of the Texas Department of Criminal Justice at the Robertson Unit, testified that he worked with Fran. He said that on November 21, 2003, she told him that on a prior occasion she had put Visine in her husband=s coffee and that the day before she had made him sick at his stomach by putting a whole bottle of Visine in his coffee. He said they discussed other ways she could make him uncomfortable and that she was going to her computer that night to see if she could find out anything that would cause him discomfort. He indicated that during the divorce process Will had offered Fran $10,000 for their house that she valued at approximately $100,000. He acknowledged that he had not reported any of this to anyone because he did not think there was really a danger. He also acknowledged that he was not sure what the date was.
Rene Funk testified that she was formerly employed by Hendrick Medical Center as a staff nurse and supervisor at the Robertson Unit. She indicated that on November 21, 2003, Fran, who was working at the unit, asked her if men go through a change of life. She stated that Fran told her that Will had been going through it for what seemed like years. She related that Fran started to have more anger in her voice when she told her that Will wanted a divorce. She overheard Fran tell someone else, AI just feel like killing him.@ She indicated that at that time her speech sounded a lot angrier and that it was very rapid. She acknowledged that such a statement as AI just feel like killing him@ is a normal thing to say when someone is irritated at another person.
Cosme Perez, an employee at the Robertson Unit of the Texas Department of Corrections, testified that he overheard Fran angrily telling someone that she was going to kill her husband. He indicated there was also a discussion about money, a girlfriend, and the sale of the house, followed by her moving to San Antonio. He said he did not give the statement a second thought because he did not think it was a serious deal.
Renata Jefferson, an employee at the Robertson Unit, testified that Fran asked her to go to Sherry Hill=s house and pick up a manila envelope and a printer. She said Fran told her they were bills that she did not want Will to see. She related that, when they arrived at Hill=s residence, Hill closed the door in their faces and called the Abilene Police Department. She said that, when the police arrived, Hill gave the officer a manila envelope, who handed it to Fran. She denied that Fran ever talked about how long she needed to be married to Will.
Sherry Hill testified that Fran had left with her some bills she did not want Will to see because she did not want him to see how much in debt they were. She recounted that on November 14, 2003, Fran came beating at her door, yelling at her, and telling her she wanted her papers and printer back. She said she called the police and gave them Fran=s papers. She indicated that she did not return the printer because she had previously paid Fran for it. She also testified about going with Fran to a pawnshop to pick up a gun that Fran did not want her husband to find out she had pawned.
Katherine McKenna said that on the day of the shooting Fran called her and told her that during the struggle with Will the rifle had gone off three or four times and that she thought it had gone up in the air.
Fran and the State stipulated that the spent cartridges found at the scene were fired from the .22 Mossberg rifle found at the scene and that the unfired cartridges found were suitable for use in that rifle.
Patricia Eddings, an employee of the Tarrant County Medical Examiner=s Office Crime Laboratory, testified that she had been trained in the discovery and detection of gunshot residue. She said that the residue from a gunshot can sometimes go out as far as 20 to 25 feet, depending on the particular weapon, type of ammunition, and atmospheric conditions. She indicated that one particle unique to gunshot residue was found on Will=s left palm, while particles characteristic of gunshot residue were found on the back of the left hand. She said that in her report she said this finding was consistent with someone having discharged a firearm, being in the vicinity of a discharged firearm, or touching an object on which gunshot residue was positive. She testified that no residue was found in the entry wound. On cross-examination, Eddings acknowledged that she would be surprised if a .22 rifle would expel a cloud of residue as far away as 20 to 25 feet.
Dr. Marc Andrew Krouse testified that he was the Chief Deputy Medical Examiner in Fort Worth. He indicated that his examination of Will=s body showed no gunpowder residue on Will=s wound. He further indicated that, generally speaking, a .22 caliber weapon firing a long rifle cartridge will deposit gunpowder that can easily be seen out to four and a half to five feet. He acknowledged that a test that could determine the amount for the particular .22 Mossberg rifle involved in this case was not conducted. Dr. Krouse said that the track of the bullet was from left to right, very slightly downward, and slightly front to rear between the point of entry and exit. He repeated that relative to the head the track of the bullet was basically level with a slight downward deviation. Dr. Krouse acknowledged that it was possible and not unusual for someone to run 698 feet with the kind of injury Will suffered. Dr. Krouse concluded that the shot would have come from Will=s left and fired horizontally, from a distance outside of three and a half to four feet. He indicated that Will was not so close to the weapon when it was fired that his wound could have resulted from two people arguing over a weapon.
Edward Dale Butts testified that he had been in the home of Fran and Will on several occasions and that he had never observed any indication or evidence of violent tendencies between them. He said that it seemed to him that they had almost a perfect relationship.
Doug Wheatley, an employee of the Texas Department of Criminal Justice at the Robertson Unit, testified that he knew Will and Fran. He said Fran and Will seemed to have a good relationship and did not seem to have any problems while he was around. He said it was his impression from conversations with Fran that practical jokes were a common thing in their household. He stated that he never knew of Fran to say anything nor did he observe anything indicating a violent tendency on her part toward Will. He related that he never had any concerns of violence between them.
Wheatley testified that, after Will was shot, Fran told him that Will came out of their house with a gun in his hands and that he was shot when the gun went off as she was trying to take it from him. He said she indicated that she did not know whether she had hit the trigger or something happened to make it go off. According to Wheatley, Fran said that Will was running toward the road and fell at the road, all while running to a neighbor=s house for help. Wheatley testified that Fran seemed distraught and sad after the shooting.
Dr. Joe Bob Alexander, a medical doctor, testified that he agreed that it was possible for an individual to have walked and moved himself or herself some 700 feet after sustaining an injury such as that sustained by Will. He also testified that, while most people produce tears when they cry, not everyone does. He concluded that when someone cries but does not produce tears it does not necessarily mean that they are not really grieving. He testified that Will had been referred for an MRI because of head trauma after he had fallen from a ladder sometime in November 2003. He acknowledged that he was not sure of the date.
Dale Kocher testified that he was a sergeant with the Texas Department of Criminal Justice, serving as a supervisor of correctional officers. He indicated that he knew Fran and was her friend. He stated that he did not ever know Fran to Adisplay or to comment about@ wanting to harm or injure her husband. He said she had once come in to work with red hair because Will had put Kool-Aid in the showerhead. He indicated that he had never observed any conduct on Fran=s part that would lead him to believe that she would be violent toward Will. He said it would make no sense for someone to talk about killing somebody before they did it. He acknowledged that he did not care for Will.
Richard Murphree, a correctional officer with the Texas Department of Criminal Justice, testified that he knew Fran. He said that in the two years he had worked with her he never observed or noticed any characteristics of violent conduct.
Marjorie Batchelder, Fran=s cousin, testified that when she met Fran after the shooting she was distraught and appeared to have been crying. She indicated that there was a grieving process during the next two to four days during which Fran cried a lot and was depressed. She said Fran told her the shooting was a tragedy and an accident. She acknowledged that Fran told her there had been a struggle and the gun went off. She said Fran did not tell her about chasing Will down the road with a gun in her hand or anything about chasing Will down the road with his carrying a gun.
Douglas Batchelder, Marjorie=s husband, testified that Fran was pretty shaken up when they first saw her. He said he observed nothing abnormal about how Fran grieved. He stated that he never heard Fran relate this event as anything other than a very horrible accident.
Timothy Nguyn, Fran=s son, testified that he lived with Fran and Will in 2000 and observed that they talked a lot and were happy with each other. He related that in the summer of 2003 he moved back in with them and observed changes in Will. He said Will was reclusive and that he drank more and was angrier than before. He related that, in anger, Will had punched a hole in the wall and thrown a phone at the wall. He related that Will bragged about beating the inmates. He also mentioned that Will had fallen from a ladder, hitting his head on it. Nguyn acknowledged that the family played practical jokes on each other as a game without any intent to harm anyone.
Fran denied that she intended to shoot Will. She said her relationship with Will was good after their marriage in 1994. She said that over time they had normal problems over bills and did not spend as much time together since each was working more than one job. She said they played pranks on each other.
Fran testified there was a difference in Will after he returned from Bosnia where his National Guard unit had been deployed. She indicated that he angered easily, his mood swings would change, and he started drinking a lot. She indicated that he was taking a lot of painkillers and was getting upset at every little thing. She spoke of his spending all day on internet porn sites, making her feel inadequate.
Fran testified that Will=s mood swings became more frequent and that he began getting headaches after an automobile accident in which his head hit the car=s windshield. She insisted that she and Will still had romantic times even as what was wrong with Will increased. She stated that from June or July 2003 through October 2003 there were times she did not think the marriage was going to make it because he was coming home drunk or she was sometimes having to go to a friend=s house to pick him up. She said Will worked four days on and four days off and that he was getting drunk all four of his days off. She said that she told him on October 8, 2003, that she wanted a divorce because of all the drinking, the mood changes, and his anger issues. She indicated that Will had a seizure on October 10. She said she changed her mind about the divorce after the seizure.
Fran testified that she did not know that two .22 caliber shells of the same type used in the shooting were in her purse at the time of the shooting but that she knew how they got there. She said that, when she had pawned guns earlier in June or July, this gun was loaded and the pawnshop employee unloaded it. She stated that she then stuffed the shells into her purse. Fran explained that she thought she had taken out all the shells from the guns but that she must have overlooked the two in question.
With respect to a list of pranks she had made, she explained it was a list of suggestions made by other employees as to pranks she could play in response to pranks that Will pulled on her. She indicated that the word A[r]evenge@ on the list was another word for Aprank@ and that she never meant it as revenge. With respect to the suggestion that she had put Visine in Will=s coffee, she intimated that she suspected he had put some in her coffee and that, although she had told everyone she had put Visine in his coffee, she had not ever actually done so. Fran testified that on the morning of the shooting, after she and Will had had their usual discussion about work, Will started screaming, AFran, we don=t have any money.@ Fran indicated that, as she discussed the matter with him, he got more and more angry, saying, AYou don=t understand, Fran. We don=t have any money.@ She related that, as they were putting their work-related material in their vehicles, Will started screaming again about money. Fran stated that Will said, AI=m tired that we don=t got no money. Fran, you don=t understand no money. I=m just sick of this life,@ then went back into the house.
Fran testified that when Will came back out of the house he was staring at her and appeared to Azone out.@ She said that at that time she noticed he had a weapon. She stated she was scared and nervous because she knew something was wrong since employees of the Texas Department of Criminal Justice are not allowed to have firearms at work, even in their vehicles. She related that, when Will failed to respond to her asking what was wrong, she grabbed the weapon and that they struggled. She testified that when they both fell back the weapon went off. She insisted that she did not intentionally fire the weapon or shoot her husband. She stated that they both started running after the weapon went off, even though she saw a little bit of blood coming from Will. She acknowledged that she had the weapon in her hand as she was running but did not realize she still had it. She related that, as Will was running, he was telling her to leave him alone, that he wanted to die. She indicated that when they got near the Brazee residence, Will grabbed the gun from her, said he wanted to die, placed it under his chin, and fired it about three times as they again struggled over the gun. She then discussed her efforts to comfort Will and get help for him. She denied removing Will=s wedding ring.
The only explanation Fran offered for the shell casing in the house was that it was somewhere on her person when she ran back in and that it fell out. She explained that when she went back in the house she called Mr. Rutledge instead of 9-1-1 because he was only a couple of minutes away while 9-1-1 was in Anson. She acknowledged that she may have said something at work along the lines of AI am going to kill him@ but that everyone she knows says that.
We hold that from this evidence a rational trier of fact could have found the essential elements of murder beyond a reasonable doubt. We further find that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the conflicting evidence. Consequently, we hold that the evidence is legally and factually sufficient to support the conviction.
Fran urges that the evidence is insufficient because the State failed to prove that she intentionally and knowingly caused Will=s death. As she herself notes, intent and knowledge can be inferred from the acts, words, and conduct of the accused. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). She relies on her testimony as to how it happened and on testimony given by Deputy Melendez that the State=s theory that Will was shot from the doorway connecting the house to the garage was possible, but not likely.
The jury was not required to accept Fran=s testimony as true. See Nelson v. State, 848 S.W.2d 126, 132 (Tex. Crim. App. 1992). Deputy Melendez=s conclusion that Will being shot from the doorway connecting to the house was not likely was based on his assumption that a shooter would not have a clear shot from that location. Reference to Deputy Melendez=s testimony shows that it was contradictory as to whether a shooter would have a clear shot from the doorway. Deputy Melendez finally stated that he could not remember because the shooting had happened Aso long ago.@ Also, as previously noted, Deputy Melendez testified that Will=s wound conformed to the theory that someone stood at the door and fired the weapon.
Evidence such as the lack of gunpowder residue found on Will=s wound, the spent shell casing found in the house near the garage door, the ill feeling between the parties, Fran=s comments similar to AI am going to kill him,@ and the fact that in Fran=s demonstration the weapon was pointing up, whereas Will=s wound was relatively level, all support the jury=s verdict. We overrule issues one and two.
Fran contends in issue three that the trial court erred when it denied her motion for mistrial based on the State=s improper argument applying the parole law. In responding to Fran=s plea that she receive community supervision rather than confinement in the Texas Department of Criminal Justice, Institutional Division, counsel for the State argued:
Is that punishment? I don=t think so. What do I recommend as punishment in this? I would like to have a life sentence in it to make sure that people know that Jones County says, AYou will not commit [a] murder in Jones County.@ But you are the ones that have to do that, assess years, assess life.
Let=s look at how old William Herman was when he was murdered. He was 42 years of age. What is the average life expectancy of people today? 85 -- 80 to 85, something like that. Now, I could be wrong in there. I would like to see Frances Herman in the penitentiary so that every day she wakes up and says, AWhat am I doing here? It=s because I killed my husband. I murdered him. I assassinated him.@ So you add B you subtract the 85 -- or the 42 from 85 and you get 43 years. Now, 43 years, she would only have to serve 22 and a half before she --
At this point, Fran=s counsel objected because the argument was untrue and outside the record and because the jury is not to consider the application of the parole law to the case. Counsel for the State responded that it was just referring to the portion of the court=s charge indicating that one has to serve at least one-half of one=s sentence before becoming eligible for parole. The trial court sustained the objection, instructed the jury not to consider the State=s argument with respect to parole application, but denied Fran=s motion for mistrial. Immediately after the admonition, the State argued, without objection, ALadies and gentlemen of the jury, y=all are capable of adding and subtracting. Y=all are capable of reading and writing.@
The issue before us is whether the trial court abused its discretion in refusing to grant Fran=s request for a mistrial. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). In making its determination as to whether to grant a mistrial, the trial court determines whether improper conduct is so harmful that the case must be redone. Id. The harm analysis is conducted in light of the trial court=s curative instruction. Id. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required. Id. In determining whether the trial court abused its discretion, we apply a tailored version of the factors found in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998): (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). Hawkins, 135 S.W.3d at 77.
The conduct was not severe. The State did not call on the jury to speculate as to how the parole law might affect Fran or as to when she might be released on parole, except for telling the jurors what they could readily determine from the court=s charge B that she would not even become eligible until she had served one-half of her sentence. The trial court instructed the jury to disregard the argument. Inasmuch as the argument merely informed the jury of information it could easily have determined under the court=s charge, it is difficult to see how it might have changed the punishment assessed by the jury. Considering all three of the Mosley factors, we hold that the trial court did not abuse its discretion in denying Fran=s motion for mistrial. Fran relies upon the case of Helleson v. State, 5 S.W.3d 393 (Tex. App.CFort Worth 1999, pet. ref=d), but, as she notes, the court in that case, a case very similar to the case at bar, held that the trial court=s instruction cured any error. Fran relies upon a subsequent argument that the jury was capable of adding and subtracting, but there was no objection to that argument. As noted in Helleson, a defendant must object each time the improper argument is made or the complaint is waived. 5 S.W.3d at 396. We overrule issue three.
The judgment is affirmed.
PER CURIAM
November 30, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: McCall, J.,
Strange, J., and Hill, J.[2]
[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.
[2]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.