Affirmed as Modified; Opinion Filed March 14, 2013.
In The
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No. 05-1 2-00160-CR
No. 05-12-00161-CR
No. 05-12-00162-CR
DON EARL PRICE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause Nos. F1i-56742-H, F06-72527-H, and F06-72528-H
MEMORANDUM OPINION
Before Justices Francis, Lang, and Evans
Opinion by Justice Francis
While on deferred adjudication for two felony drug offenses, Don Earl Price was arrested
for murder. Following a trial, a jury convicted him of the offense and assessed punishment at
life imprisonment (Cause No. 05-12-00l60-CR). Then, after a hearing, the trial court
adjudicated appellant’s guilt in each drug case and sentenced him to thirty years in prison and
two years in state jail (Cause Nos. 05-12-00161-CR and 05-12-00162-CR).
On appeal from the murder conviction, appellant complains about improper argument by
the prosecutor and ineffective assistance of counsel. In the revocations, appellant seeks various
modifications of the judgments to accurately reflect the proceedings below. We overrule the
issues raised in the murder case and affirm the trial court’s judgment. We modify the judgments
in the remaining cases and affirm as modified.
Neiman Derrough was fatally shot when a brawl broke out at an apartment complex.
iwo witnesses at trial identified appellant as the person who shot Derrough. In addition,
Derrough’s wife testified she saw appellant holding a gun inside his shorts: later, she testified she
did not actually see the gun, but that her aunt said appellant had a gun. Appellant testified and
denied shooting Derrough.
In his first issue in the murder ease, appellant contends the trial court erred in overruling
his objection to the prosecutor arguing outside the reCord in his closing argument in rebuttal.
Specifically, he complains about the following argument:
The video down at the police station, go hack and take a look at
one part. When he’s —- before he starts shadow boxing. He’s
yelling. He’s cursing. Tony Montana. Tony Montana. You’re
innocent, and you’re bringing up Tony Montana’? You-all know
who Tony Montana is? Scarface. lie’s a killer.
At trial, a video of the police interrogation of appellant was admitted as evidence. After
first obtaining basic information from appellant, Detective Lundberg began to ask questions
relevant to the offense. Appellant acknowledged he was at the apartment complex that night but
said he left before the shooting occurred. Ultimately, appellant became agitated by the
questions, accused Detective Lundberg of “playing dumb,” and demanded he “get to the real,
man” because the detective was “wasting” his time. Appellant asked if he was the detective
assigned to the case, and Detective Lundberg said he was not. Appellant then ended the
interview and demanded that Detective Lundberg get the “real detective in here.”
Detective Lundberg left appellant alone in the room. immediately, appellant began to
rant: “Can’t tell me about penal code, what, 19.02, 19.01, 19— what, come on, man. Texas
criminal — yeah, 1 know about that shit, man. 1 studied that shit, man.” For the next two
minutes, appellant went on a tirade, shouting and cussing. Appellant called for the police to “get
the real detccti e in here because he did not have “time to he bull—shitting with v’all.” He
claimed he kue\\ “‘ hat v’all mothertuckers trying to do. I ain’t fucking dumb. sending one
detective trying to make me switch up my story, bitches, come on.” Appellant said to “get to the
real” and bring the “missus, whoever the motherfucker is, on.” He continued: “Y’aIl got
hardcore shit, let’s go. Let’s play ball, baby.. Where she [the lead detective) at? ...1’ m ready.
Shoot your best shut. Bring me some hardcore evidence in here, man. For real, man. Saying I
did this shit. I ‘in innocent. Fucking with me... Got me stirred up now, man. Let’s go. Shit. we
in a fight now, baby. . . Knockout king, man—— fixing to knock this shit out of the park... Ya’ll
ready to go to war? Let’s go! Tony Montana.” Detective Lundberg then returned to the room to
tell appellant the detective would be arriving in thirty minutes or less. When Detective Lundberg
left, the video shows appellant shadow boxing.
A prosecutor may not use closing arguments to present evidence that is outside the
record. Freeniun i’. State. 340 SW 3d 717, 728 (Tex. Crim. App. 201 1), cert. dented. 132 S. Ct.
1099 (2012). Improper references to facts that are neither in evidence nor inferable from the
evidence are generally designed to arouse the passion and prejudice of the jury and, as such, are
inappropriate. id.
Here, the reference to Tony Montana is part of the evidence. Although appellant asserts
that the last name is “muffled” on the video, we have viewed the video and appellant clearly says
“Montana.” There is no evidence, however, regarding “Scarface,” (the movie in which Tony
Montana was the fictional character), or that Tony Montana was a killer. To that extent, the
argument contained facts not in evidence and was improper.
improper argument error of this type is nonconstitutional in nature, and a
nonconstitutional error “that does not affect substantial rights must be disregarded.” Id. To
determine whether appellant’s substantial rights were affected, we balance the severity of the
misconduct, any curative measures, and the certainty of conviction absent the misconduct. Id.
The prosecutor’s comments were a small portion of the State’s entire closing argument,
and the argument was not emphasized. After the trial court overruled the objection, the
prosecutor explained that appellant “wants to be a tough guy. He wants to be, excuse my
language, the bad ass.” Viewing the State’s closing arguments as a whole, we cannot conclude
there was a willful and calculated effort to deprive appellant of a fair and impartial trial nor can
we conclude appellant was prejudiced by the prosecutor’s comments. See Id.
The trial court overruled the objection, so there were no curative instructions. The
evidence, however, included eyewitness testimony that appellant was the shooter. Two
witnesses selected appellant from a photo lineup administered within hours of the shooting, and
both identified appellant at trial. Other witnesses placed appellant on the stairs with his hands in
his shorts immediately before the shooting. Finally, appellant himself admitted that he was at the
apartment complex on the night of the shooting, although he claimed to have left the scene
before the shooting occurred. Given the brevity of the State’s comments, the lack of prejudice,
and the strength of the State’s case, we conclude any error was harmless.
In reaching this conclusion, we have considered the cases relied upon by appellant. See
Mills v. State, No. 07-08-0348-CR, 2009 WL 3320249 (‘rex. App.—Amarillo Oct 14, 2009, no
pet.); Gonzalez v. State, 115 S.W.3d 278 (rex. App.—Corpus Christi 2003, pet. refd); Brown v.
State, 978 S.W.2d 708 (Tex. App.—Amarillo 1998, pet. refd); and Stell v. State, 711 S.W.2d
746 (rex. App.—.Corpus Christi 1986, no pet.). In each of those cases, the prosecutor compared
the defendant to real-life, notorious criminsek in highly prejudicial and improper arguments. See
Mills, 2009 WL 3320249 (attacking defendant’s insanity defense by comparing his state of mind
to that of “John Wayne (Jacy. the clown murderer, Lwholwas killing those boys and puffing them
under the floor of his house”; Jeffrey Dahmer, “killing those boys and eating them”: and
Muhammed Atta. “flying a plane into the North Tower killing hundreds of innocent men women
and children”); Gonzalez. 115 S.W.3d at 283-84 (making direct comparison between defendant’s
offense with Osama bin Laden’s orchestration of 911 attacks and effectively asking jury to
punish him as they would bin Laden); Brown, 978 S.W.2d at 7 13-14 (comparing accused to
Jeftey Dahmer, John Wayne Gacy, and Ted Bundy); Stel4 711 S.W.2d at 748 (comparing
accused to Lee Harvey Oswald). Those arguments were of a different character than the one
made in this case. We overrule the first issue.
In his second issue, appellant complains defense counsel rendered ineffective assistance
by filling to object to a witness’s testimony as hearsay. Specifically, the victim’s wife first
testified she saw appellant holding a gun inside his gym shorts. Later, however, she said she did
not actually see the gun, but that her aunt said appellant had a gun. Appellant asserts the
testimony was inadmissible hearsay that deprived him of effective assistance.
To successfully assert an ineffective assistance of counsel challenge, an appellant must
show that (1) counsel’s representation fell below an objective standard of reasonableness and (2)
the deficient performance prejudiced him; that is, but for the deficiency, there is a reasonable
probability that the result of the proceeding would have been different. Rvlander v. State, 101
S.W.3d 107, 110 (Tex. Crim. App. 2003). An ineffective assistance of counsel claim must be
“firmly founded in the record,” and the record must “affirmatively demonstrate” the claim has
merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). We commonly
assume a strategic motive if any can be imagined and find counsel’s performance deficient only
if the conduct was SO outrageous that flO cOmpetent attorney would have engaged in it .indieu’s
i .Siaie. 159 SW.3d 9i. 101 (Tex. Crim .App. 2005).
The court of criminal appeals has made clear that, in most cases, a silent record which
provides no explanation lbr counsels actions will not overcome the strong presumption of
reasonable assistance. J?lander, 101 S.W.Sd at 110. Further, counsel should ordinarily be
accorded the opportunity to explain his actions before being denounced as ineffective. MenefIeId
v. State, 363 S,W3d 591. 593 (Tex. Crim. App. 2012). If trial counsel is not given that
opportunity, then an appellate court should not find deficient performance unless the challenged
conduct was “so outrageous that no competent attorney would have engaged in it.” Id.
Appellant filed a motion for new trial but did not raise a ground of’ ineffective assistance
nor has he otherwise developed a record showing why his counsel failed to lodge a hearsay
oblection. There may have been no good reason for failing to object or. perhaps, the State could
have brought the aunt to the courtroom to testify, and counsel realized that cross—examining the
aunt would not benefit his client. See Id. Maybe defense counsel wanted the focus to remain on
the inconsistency in the wife’s testimony. Neither trial counsel nor the State have been given an
opportunity to respond to appellant’s allegation. Consequently, we conclude the record fails to
show deficient performance. We overrule the second issue.
In Cause Nos. 05-12-00161/162-CR, appellant brings four issues in which he asks the
Court to modify the judgments to reflect that (I) appellant pleaded not true to a violation of
condition (a) (that he knowingly and intentionally committed the offense of murder as alleged in
Fl 1-56742) and true to the remaining violations in each case and (2) appellant violated the
conditions of his community supervision as alleged in the State’s amended motion to adjudicate,
as opposed to the original motion. The State joins in appellant’s request.
This Court has the authority to correct the judgments of the court below to make the
record “speak the truth” when we have the necessary data and information to do so. Asbern i,
State. Xl 3 S.W.2d 526. 529 (Te. App—Dallas 1991. pet. reid).
The trial court’s written judgments recite that (1) appellant pleaded true to the entire
motion to adjudicate and (2) appellant violated the conditions of community supervision “as set
out in the State’s ORIGINAL Motion to Adjudicate Guilt.” The record, however, reflects the
parties proceeded on the State’s June 30. 2011 amended motion. The motion included condition
(a), which alleged appellant unlawfully, knowingly, and intentionally committed the offense of
murder. The motion also included six other allegations. At the hearing, appellant’s counsel
specifically stated that appellant was pleading not true to condition (a).
We sustain issues one through four and modify the judgments to reflect that appellant (I)
pleaded not true to a violation of condition (a) and true to the remaining violations in each case
and (2) violated the conditions of his community supervision as alleged in the State’s June 30,
2011 Amended 1otion to Revoke Probation or Proceed to Adjudication Guilt.
We affirm the judgment in Cause No. 05-1 2-00160-CR. We affirm the judgments in
Cause Nos. 05-12-00161-CR and 05-12-00162-CR as modified.
MOLLY [CIS
Do Not Publish JUSTICE
Tux. R. App. P. 47
120 160F.U05
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JUDGMENT
DON EARL PRICE, Appellant On Appeal tiom the Criminal District Court
No. 1. Dallas County, Texas
No. 05—1 2—0 160—CR V Trial Court Cause No. El 1-56742-H.
Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee Justices Lang and Evans participating.
Based on the Court’s Opinion of this date, the judgment of the trial court is AFflRMED.
Judgment entered this 14th day of March. 2013.
JUSTICE
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JUDGMENT
DON EARL PRICE, Appellant On Appeal from the Criminal l)strict Court
No. 1, Dallas County, Texas
No. 05-l200l6l-CR V. Trial Court Cause No. F06—72527-FL
Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee Justices Lang and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFL[D
as follows:
that Don Earl Price (I) pleaded Not True to Condition (a) and True to
10 reflect
the remaining violation allegations and (2) violated the conditions of his
community supervision as alleged in the State’s June 30, 2011 Amended Motion
to Revoke Probation or Proceed to Adjudication of Guilt.
As MO1)IFIEI), the judgment is AFFIRMED.
Judgment entered this I 4th clay of March. 201 3.
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JUSTICE
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JUDGMENT
DON EARL PRICE, Appellant On Appeal from the Criminal District Court
No. 1, Dallas County, Texas
No. 051 20Ol62CR V. Trial Court Cause No. F0672528-Tl.
Opinion delivered by Justice Francis;
THE STATE OF TEXAS, AppeHee Justices Lang and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
To reflect that Don Earl Price (1) pleaded Not True to Condition (a) and True to
all remaining violation allegations and (2) violated the conditions of his
community supervision as alleged in the States June 30, 2011 Amended Motion
to Revoke Probation or Proceed to Adjudication of Guilt.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 14th day of March, 2013.
MOLLY FR CIS
JUSTICE