Opinion filed April 3, 2014
In The
Eleventh Court of Appeals
__________
No. 11-12-00128-CR
__________
MARCUS C. LOTT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-39,308
MEMORANDUM OPINION
The jury convicted Marcus C. Lott, Appellant, of the offense of attempted
capital murder 1; made an affirmative deadly weapon finding; and, upon
Appellant’s plea of true to an enhancement allegation, assessed Appellant’s
punishment at confinement for ninety-nine years. The jury also convicted
1
See TEX. PENAL CODE ANN. § 15.01 (West 2011), § 19.03 (West Supp. 2013).
Appellant, upon his plea of guilty, of the offense of possession of more than four
ounces but less than five pounds of marihuana and the offense of possession of less
than one gram of cocaine. The jury assessed Appellant’s punishment at
confinement for two years in a state jail facility for each of the drug-related
convictions. The trial court ordered Appellant’s sentences to run concurrently.
Although he perfected an appeal from all of the judgments of conviction,
Appellant stated in his brief that this appeal encompasses only his conviction of
attempted capital murder. Appellant challenges the sufficiency of the evidence and
complains that the trial court abused its discretion when it (1) admitted evidence of
Appellant’s outstanding warrants and (2) denied his motion for mistrial. We
affirm.
I. Evidence at Trial
Max Chris Honesto, a Department of Public Safety trooper, testified that on
May 25, 2011, he was assigned to monitor eastbound traffic on Interstate 20 as part
of a criminal interdiction operation in Odessa, Texas. He stopped a Toyota Camry
for speeding. After he pulled the Camry over, Trooper Honesto asked the driver to
exit the Camry so he could speak to him safely on the side of the road. The driver
identified himself as Alfonso Butler, and he told Trooper Honesto that he was
driving from El Paso to the Dallas/Fort Worth area with his cousin and his cousin’s
girlfriend. Butler informed Trooper Honesto that he had recently been released
from prison and stated he had a prison identification card but no driver’s license.
Trooper Honesto then went back to the Camry to identify someone with a
valid driver’s license. When Ashley Simpson, one of the passengers in the Camry,
opened a car door, Trooper Honesto immediately smelled fresh marihuana.
Simpson identified herself but was nervous. As Simpson answered Trooper
Honesto’s questions, he detected discrepancies in her story and the story given by
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Butler. Trooper Honesto also noted that, while he talked to Simpson, Appellant sat
silently in the backseat and refused to make eye contact with him.
Trooper Honesto saw clear plastic bags, consistent with narcotics packaging,
in the Camry. Although Simpson told him that the bags were from previously
eaten sandwiches, Trooper Honesto did not believe her because the bags smelled
strongly of marihuana. Trooper Honesto had Simpson and Appellant get out of the
Camry. When Trooper Honesto asked Appellant to empty his pockets, Appellant
produced several bags of marihuana, a bottle of Lortab pills, and a bag with a
substance that was later identified as cocaine.
Trooper Honesto observed that Appellant refused to place any weight on his
right foot, and he asked Appellant to remove his right shoe. Appellant bent down
to remove his shoe but, instead, pulled out a .22 caliber pistol. Trooper Honesto
pulled out his pistol and fired several shots toward Appellant, one of which struck
Appellant in the leg. Appellant then fired several shots toward Trooper Honesto,
one of which entered Trooper Honesto’s right shoulder. 2 Trooper Honesto
believed that he would not have survived the encounter with Appellant if he had
not been the first to fire his weapon.3
Mario S. Garcia, another DPS trooper, testified that, after he observed
Trooper Honesto and Appellant running in opposite directions on the side of the
highway, he approached the scene to investigate. 4 Shortly after Trooper Garcia
arrived at the scene, Appellant jumped in the driver’s seat of the Camry while
2
This action was the basis of Appellant’s attempted capital murder charge.
3
In conjunction with Trooper Honesto’s testimony, the State presented the jury with video taken
from the dashboard camera in his patrol car. The events shown in the video matched the testimony given
by Trooper Honesto.
4
In support of his testimony, the State presented the jury with video taken from the dashboard
camera in Trooper Garcia’s patrol car. The video evidence paralleled Trooper Garcia’s testimony.
3
Simpson got in the front passenger seat. As Appellant fled, he rammed the Camry
into Trooper Garcia’s patrol car. Trooper Garcia then got out of his patrol car and
demanded that Appellant stop. Appellant tried to strike Trooper Garcia with the
Camry, and Trooper Garcia fired three rounds at the Camry.
Appellant drove eastbound on the interstate at speeds between 90 and 100
miles per hour. Trooper Garcia pursued Appellant and radioed Sergeant Hunter
Lewis of the DPS to set up a roadblock. Sergeant Lewis testified that he set up
road spikes along Appellant’s intended path. Appellant eventually ran over these
spikes, which punctured the Camry’s tires. Appellant then lost control of his
vehicle and crashed into a pole on the service road. Appellant threw his pistol out
of the window. Appellant and Simpson surrendered and were arrested and taken
into custody.
At trial, Butler testified in exchange for a reduced sentence on his charge of
marihuana possession. Butler stated he asked Appellant to find him a ride to Texas
so he could obtain a new address to report to his parole officer. Appellant agreed
to help Butler in exchange for money and drugs. Appellant, Butler, and Simpson
left from Memphis, Tennessee, and first traveled to Fort Worth, Texas. From
Fort Worth, the group drove to El Paso, where Butler purchased a pound of
marihuana. The group was headed back to the Dallas/Fort Worth area when they
were pulled over by Trooper Honesto. Butler stated he smoked marihuana with
Simpson and Appellant before they were pulled over.
Sergeant Lewis testified that he had been asked to verify Appellant’s two
outstanding warrants 5 and that he had confirmed the warrants were valid. The
State offered into evidence copies of these warrants. Appellant objected to the
paper warrants and argued that the evidence was prejudicially cumulative, given he
5
One of these warrants was issued by the State of Kentucky, and the other was issued by the State
of Tennessee.
4
had already judicially stipulated to the existence of the warrants. Appellant also
argued that the copies of the warrants were not properly authenticated. The trial
court overruled Appellant’s objections and admitted the paper warrants into
evidence.
Appellant testified he was homeless and addicted to drugs when Butler
approached him in need of transportation to Texas. In spite of hospital records that
showed he had only marihuana in his system immediately following his arrest,
Appellant claimed he was high on marihuana, heroin, and Lortab when he shot
Trooper Honesto. Appellant stated he did not intend to shoot Trooper Honesto and
would not have done so in a state of sobriety. Appellant also stated he did not
intend to strike Trooper Garcia’s car and did not remember doing so.
On cross-examination, the State asked Appellant several questions
concerning extraneous charges, some of which had resulted in his acquittal. This
line of questioning violated Appellant’s motion in limine that required the State to
approach the bench before introducing his alleged violations of the law. Appellant
did not object, ask for a curative instruction, or move for mistrial immediately
following the State’s improper questioning. The next day, Appellant presented a
motion for mistrial based on the State’s violation of his motion in limine on the
previous day of trial. The trial court noted that Appellant had failed to object at the
time of the alleged violation. The trial court denied the motion and found that any
harm would be corrected by the curative instruction in the jury charge.
II. Issues Presented
Appellant presents three issues on appeal, which we paraphrase:
(1) Did the trial court abuse its discretion when it admitted into evidence
copies of Appellant’s two outstanding warrants after he had judicially
stipulated to the existence of the warrants?
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(2) Did the trial court abuse its discretion when it refused to grant a
mistrial based on the State’s violation of Appellant’s motion in
limine?
(3) Was the evidence sufficient to support Appellant’s conviction of
attempted capital murder?
III. Analysis
We will address Appellant’s sufficiency challenge first. We will then
address his evidentiary issue, and finally, we will address the trial court’s refusal to
grant a mistrial.
A. Sufficiency of the Evidence
Appellant argues in his third issue that the evidence was not sufficient to
support his conviction of attempted capital murder. Appellant contends that the
evidence failed to prove he acted with the requisite mental state when he shot
Trooper Honesto. To support his argument, Appellant points to (1) his remorse,
(2) his intoxication at the time of the offense, and (3) the small caliber of the gun
used in the commission of the offense.
To address Appellant’s sufficiency of the evidence challenge, we review all
of the evidence in the light most favorable to the verdict and determine whether
any rational jury could have found all the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319–20 (1979); Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). We may find the evidence to
be insufficient in four circumstances: (1) the record contains no evidence probative
of an element of the offense; (2) the record contains a mere “modicum” of
evidence probative of an element of the offense; (3) the evidence conclusively
establishes a reasonable doubt; or (4) the acts alleged do not constitute the criminal
offense charged. Brown v. State, 381 S.W.3d 565, 573 (Tex. App.—Eastland
2012, no pet.) (citing Jackson, 443 U.S. at 314, 318 n.11). If an appellate court
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finds the evidence is insufficient under this standard, the court must reverse the
judgment and enter an acquittal. See Tibbs v. Florida, 457 U.S. 31, 40–41 (1982).
Testimony at trial, as to Appellant’s acts and words during the commission
of the offense, sufficiently supported the jury’s finding that Appellant intended to
kill Trooper Honesto. See Godsey v. State, 719 S.W.2d 578, 580–81 (Tex. Crim.
App. 1986) (stating that the specific intent to kill may be inferred from the mere
use of a deadly weapon unless, in its use, it is reasonably apparent that death or
serious bodily injury could not result). The jury was free to disbelieve Appellant’s
testimony that he lacked the requisite intent to commit the offense of attempted
capital murder when he shot Trooper Honesto. Appellant’s third issue is
overruled.
B. Cumulative Evidence
Appellant argues in his first issue that the trial court abused its discretion
when it admitted into evidence copies of two warrants that were outstanding at the
time of his arrest. The standard of review for determining whether a trial court
properly admitted evidence is abuse of discretion, which is a question of whether
the court acted without reference to any guiding rules and principles.
Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991). A violation of
the Texas Rules of Evidence by the trial court generally constitutes
nonconstitutional error. Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App.
2007); see Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
Nonconstitutional error is disregarded unless it affected the defendant’s substantial
rights. Gately v. State, 321 S.W.3d 72, 77 (Tex. App.—Eastland 2010, no pet.). A
defendant’s substantial rights are affected when the error has a substantial and
injurious effect on the jury’s verdict. Id.
Appellant contends the evidence was cumulative and unfairly prejudicial,
given he had already judicially stipulated to the existence of the warrants.
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Appellant further claims that the evidence led the jury to improperly convict him
based simply on his being a “bad man running from the law in two different
states.” Texas courts have long recognized cumulativeness as a factor that may
allow a trial court to exclude relevant evidence. Alvarado v. State, 912 S.W.2d
199, 212 (Tex. Crim. App. 1995). However, where cumulative evidence is offered,
exclusion is not mandatory but, rather, is only an alternative to be considered in
promoting judicial efficiency. Id. And the cumulative nature of some evidence
may heighten, rather than reduce, its probative force. Id. at 213.
In this case, the trial court could have assessed the cumulative nature of the
paper warrants and ultimately determined that their probative value was not
substantially outweighed by their detrimental effect on the efficiency of the trial
process. Therefore, the trial court did not abuse its discretion when it admitted the
paper warrants into evidence.
Even if we were to assume that the trial court erred when it admitted the
paper warrants, which we do not, Appellant has not shown that his substantial
rights were affected by the alleged error. Given that Sergeant Lewis also testified
as to the contents of the warrants, the admission of the paper warrants provided the
jury with no new information that would have led it to convict Appellant based
solely on a belief that he was a “bad man.” Appellant’s first issue is overruled.
C. Motion for Mistrial
In his second issue, Appellant contends that the trial court abused its
discretion when it refused to grant a mistrial based on the State’s violation of his
motion in limine that required the State to approach the bench before it mentioned
his alleged violations of the law. We review the trial court’s denial of a motion for
mistrial under an abuse of discretion standard; we also review the evidence in the
light most favorable to the trial court’s ruling, considering only those arguments
before the court at the time of the ruling. Ocon v. State, 284 S.W.3d 880, 884
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(Tex. Crim. App. 2009). We will not reverse a trial court’s denial of a motion for
mistrial if it is within the zone of reasonable disagreement. Id.
Appellant did not object, ask for a curative instruction, or move for mistrial
immediately following the State’s violation of his motion in limine. Instead,
Appellant waited until the following day of trial to present a motion for mistrial
based on the State’s conduct. The trial court denied the motion and found that any
harm would be cured by the instruction in the jury charge regarding Appellant’s
extraneous charges. Appellant claims that the instruction did not sufficiently
diminish the harm caused by the State’s actions.
A mistrial is an appropriate remedy in “extreme circumstances” and is
reserved for a narrow class of highly prejudicial and incurable errors. Hawkins v.
State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). When a party moves for
mistrial, the scope of appellate review is limited to whether the trial court erred in
not taking the most serious action of ending the trial. Young v. State, 137 S.W.3d
65, 70 (Tex. Crim. App. 2004).
Here, the evidence did not establish an “extreme circumstance” warranting a
mistrial. See Ocon, 284 S.W.3d at 887. Although Appellant did not object or ask
for a curative instruction when his motion in limine was violated, the jury charge
included a limiting instruction regarding the extraneous charges mentioned by the
State. There is no indication that the curative instruction given to the jury failed to
remedy any harm that may have been caused by the State’s conduct, and the trial
court’s denial of Appellant’s motion for mistrial was within the zone of reasonable
disagreement. We overrule Appellant’s second issue.
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IV. This Court’s Ruling
We affirm the judgments of the trial court.
MIKE WILLSON
JUSTICE
April 3, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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