Newport v. State

Full title: EDWARD PETER NEWPORT, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: May 26, 2009

Nos. 05-08-01008-CR, 05-08-01009-CR, 05-08-01010-CR (Tex. App. May. 26, 2009)

Opinion

Nos. 05-08-01008-CR, 05-08-01009-CR, 05-08-01010-CR

Opinion Filed May 26, 2009. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F00-29440-RT, F00-29454-QT, and F00-29456-QT.

Before Justices WRIGHT, RICHTER, and LANG-MIERS.

OPINION

MARTIN RICHTER, Justice.

Edward Peter Newport appeals his conviction on two counts of sexual assault of a child and one count of aggravated sexual assault of a child. In four issues, appellant contends the trial court erred in failing to grant a mistrial based on improper jury argument in the guilt/innocence phase of trial and in the punishment phase, by overruling an objection to extraneous evidence, and in failing to grant a mistrial after the prosecutor referenced extraneous evidence. We affirm the trial court's judgments.

Background

L.L. and T.B. are sisters, and were acquainted with appellant because their older sister once dated him. When T.B. was thrown out of the house, she lived with appellant and his fiancee for a while. T.B. later married Jonathan Babilona, and L.L. came to live with them. L.L. initiated a complaint against appellant in October or November 1999. Detective Val Bragg investigated the complaint and appellant was subsequently arrested and charged by indictment with the aggravated sexual assault of L.L. when she was younger than fourteen. When Detective Bragg interviewed T.B. after appellant was arrested, she told him appellant had also sexually assaulted her. T.B. gave a statement and typed it herself. Detective Bragg obtained a warrant and appellant's place of business was searched. Adult pornographic videotapes and magazines as well as a pornographic videotape of appellant and his fiancee were recovered from the search. The police also retrieved a medical examiner's badge that they subsequently learned had been stolen. Appellant was charged in two separate indictments with aggravated sexual assault of T.B. when she was under 14 years of age and sexual assault of T.B. when she was older than fourteen. Appellant pleaded not guilty to the two aggravated sexual assault charges and the sexual assault charge and the three cases were tried together before a jury. L.L. testified at trial and described the incident that precipitated her complaint. According to L.L., when she was approximately thirteen, appellant sexually assaulted her at his place of business. L.L. stated that she and appellant were alone and appellant showed her a pornographic video. Appellant then disrobed and removed L.L.'s clothes. Appellant put his hands on L.L.'s chest and touched "her private part between her legs." Appellant then put L.L. on a table and attempted to penetrate her vagina with his penis. L.L. told appellant he was hurting her. After the assault, L.L. went to the restroom and noticed she was bleeding. When T.B.'s husband picked L.L. up from the shop, he noticed a couple of drops of blood in the restroom. Sometime after the incident, L.L. told T.B.'s husband what had occurred. The next day, T.B. and her husband took L.L. to the hospital and a complaint was filed against the appellant. T.B. also testified that appellant began sexually assaulting her when she was thirteen. T.B. described a number of incidents in detail and testified that appellant made her perform fellatio on him on a number of occasions. On another occasion, appellant videotaped T.B. while she performed oral sex on him. T.B. recalled that afterwards appellant played a portion of the videotape showing his fiancee performing fellatio on him and then fast forwarded the video to show her the recording he made of her performing the same act. T.B. stated she could not recall the number of times appellant had sexually assaulted her because it occurred frequently over a number of years. According to T.B., appellant not only forced her to perform oral sex on him a number of times, but also inserted his finger into her vagina, tried to insert his penis into her anus, and rubbed his penis against her vagina. T.B. described one occasion when appellant sexually assaulted her at his shop and penetrated her sexual organ with his penis. Detective Bragg testified about his investigation and the results of the search. During Detective Bragg's testimony, appellant's counsel raised an issue about the items seized in the search. The jury was excused and the trial court conducted a hearing. Defense counsel indicated "thus far" he was objecting to all of the evidence found on the premises on the grounds of "relevancy." There was an extensive discussion between the court, the State, and defense counsel concerning the adult pornographic videotapes and magazines that were seized. At the conclusion of the hearing, prior to ruling, the court asked defense counsel, "You still object to all of these things?" Defense counsel replied "I am objecting under Texas Rules of Evidence 403 to the admissibility of the tapes that the court has ruled are going to be shown to the jury. . . ." The court ruled that some of the videos would be admitted into evidence and sustained defense counsel's objection to the remaining videos. Appellant testified and denied all of the accusations against him. The jury found appellant guilty of the aggravated sexual assault of L.L., guilty of sexual assault of T.B. as a lesser included offense of the charge of aggravated sexual assault, and guilty of the remaining charge of sexual assault of T.B. After the return of the verdict, the court recessed for lunch. Despite the court's instruction to return after lunch, appellant did not return to the courtroom. Consequently, the punishment phase of the trial commenced in appellant's absence. When T.B. returned to the witness stand, the court had to admonish members of appellant's family seated in the courtroom not to make faces or threatening gestures while the witness testified. T.B. became so upset she was unable to complete her testimony. At some point, appellant's family left the courtroom. The State called C.G. as a witness. C.G. testified that she met appellant at a nightclub and he had taken her to his home and raped her. The prosecutor elicited testimony from the witness that appellant had been indicted and the case was pending in Red Oak. Defense counsel objected after the question was asked and the answer had been given. At the conclusion of the punishment phase, the jury sentenced appellant to twenty years' imprisonment and a $10,000 fine on each of the sexual assault convictions and ninety-nine years' imprisonment and a $10,000 fine on the aggravated sexual assault conviction. Appellant remained a fugitive until he was recaptured several months later. Appellant was formally sentenced by the court subsequent to his capture.

Discussion

Mistrial Based On Improper Jury Argument

In his first issue, appellant argues the trial court erred in failing to declare a mistrial during the guilt/innocence phase of trial when the prosecutor injected her personal opinion concerning the credibility of the two complaining witnesses in closing argument. In his second issue, appellant contends the trial court erred in failing to grant a mistrial due to the prosecutor's improper reference to appellant's family members during argument in the punishment phase. The denial of a mistrial is reviewed for abuse of discretion. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). In reviewing a trial court's ruling on a motion for mistrial, an appellate court must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). We first examine the allegedly improper argument in the guilt/innocence phase. The prosecutor made the following remarks during closing argument:

That is why [the detective] goes out and talks to additional witnesses to see what is going on, why these children might be lying or making something like this up, because these are serious allegations. That is why it goes to a grand jury and they hear evidence, and then the cases are indicted. That is why it comes to me as a prosecutor and I evaluate the evidence and I talk to the witnesses and I determine the credibility.

Defense counsel objected and the trial judge sustained the objection and promptly instructed the jury to disregard the prosecutor's comments. Appellant now contends the court's instruction was not sufficient to cure the argument's harmful effect on the jury. The State insists the argument was not improper because the prosecutor was permitted to express her personal opinion of the victim's credibility in response to defense counsel's argument. Alternatively, the State argues the argument was not sufficiently extreme to warrant a mistrial. The approved general areas of argument are: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103,115 (Tex.Crim.App. 2000). Even when an argument exceeds the permissible bounds of these approved areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused in the trial proceeding. Id. Assuming without deciding that the argument was improper and therefore error, we consider whether the argument was so inflammatory as to be incurable. The efficacy of a curative instruction is to be determined on a case by case basis. Swallow v. State, 829 S.W.2d 223, 227 (Tex.Crim.App. 1992). In determining whether improper jury argument warrants a mistrial, we balance three factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instructions by the judge); and (3) the certainty of the conviction absent the misconduct (the strength of the evidence supporting the conviction). Berry v. State, 233 S.W.3d 847, 858-59 (Tex.Crim.App. 2007); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). Consideration of these factors does not militate in favor of appellant. The prosecutor's statement was not so inflammatory as to be incurable and the record does not reflect a flagrant disregard for the permissible bounds of argument. The prosecutor did not repeat the statement after appellant's objection and the trial judge immediately gave the requested instruction to disregard the argument. The trial judge also included an instruction in the jury charge stating the jurors were the "exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given their testimony." This instruction clarified to the jury that it was not required to believe or disbelieve any witness presented by either the State or appellant. See Hawkins, 135 S.W.3d at 84. In cases involving direct statements of personal belief as to the credibility of a witness, instructions to disregard have been considered effective to cure any harm. See, e.g., McDonald v. State, 148 S.W.3d 598, 603 (Tex.App.-Houston [14th Dist.] 2004) (instruction cured prosecutor's statement that he thought victim was "very believable"), aff'd on other gr., 179 S.W.3d 571 (Tex.Crim.App. 2005); Nauert v. State, 838 S.W.2d 328, 329-30 (Tex.App.-Austin 1992, pet. ref'd) (instruction to disregard cured harm from prosecutor's suggestion that jury should believe witnesses because prosecutors and investigators believed her). Indeed, most improper argument may be cured by an instruction to disregard. Faulkner v. State, 940 S.W.2d 308, 312 (Tex.App.-Fort Worth 1997, pet ref'd). We generally presume the trial court's instruction will be obeyed by the jury. Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998). After reviewing the trial court's instruction and the record, we conclude the argument was not sufficiently egregious to overcome the presumed efficaciousness of the instruction to disregard. Therefore, the trial court did not err in refusing to grant a mistrial. Appellant also claims the trial court erred in its denial of a mistrial during the punishment phase. We consider the same factors to determine whether improper argument warrants a mistrial in the punishment phase that we consider in the guilt/innocence phase, but we analyze the third factor with regard to the certainty of the punishment assessed. See Martinez v. State, 17 S.W.3d 677, 693 (Tex.Crim.App. 2000). At the close of the evidence in the punishment phase, the prosecutor made the following argument:

I think it has been evident throughout the course of this trial, he has his family in here the entire time, and they have such little respect or little regard for the law or this court or your verdict that they all leave.

The trial judge sustained the resulting objection and instructed the jury to disregard the comment. Appellant maintains the instruction was not sufficient to "remove the taint of the argument" and was tantamount to suggesting appellant should receive a lengthy prison sentence because his family members did not remain in the courtroom to hear the verdict. Appellant concedes, however, that his absence was "fair game." The State asserts that the prosecutor's comment was "not necessarily objectionable" and the record does not indicate the instruction was ineffective. We agree with appellant that the complained of argument does not fall within one of the permissible areas of jury argument and was clearly outside the record. See e.g., Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App. 1992) (discussing four general areas of permissible argument). But we cannot conclude the argument was so extreme or manifestly improper as to be beyond cure. The trial court sustained appellant's objection to the argument and promptly instructed the jury to disregard the statement. With regard to the certainty of the punishment assessed, we note that appellant was sentenced to maximum terms of confinement in each case. However, considering the evidence and the nature of the offenses, we are unable to attribute punishment in any measure to the prosecutor's remarks. Under the facts of this case, we conclude the trial court's instruction sufficiently ameliorated any potential harm. Appellant's first and second issues are overruled.

Introduction of Extraneous Evidence

In his third issue, appellant contends the trial court erred in overruling his objection to the introduction of extraneous evidence. The State responds that the issue has not been preserved for our review. We agree with the State. Appellant's complaint stems from the trial testimony concerning the medical examiner's badge recovered during the search of appellant's business. Before the State elicited the complained-of testimony, the trial court conducted a hearing outside the presence of the jury. When the hearing began, appellant initially stated that "thus far" he was objecting to the relevance of all items recovered from the search. Counsel and the trial judge engaged in an extensive discussion about the pornographic videotapes and magazines recovered in the search. Following testimony about the search and the location where various items were found, the trial judge asked appellant if he still objected to everything. Appellant stated he was objecting to the relevance of the videotapes. When the hearing concluded, Detective Bragg continued his testimony before the jury as follows:

Detective Bragg: This was all folded up as such [describing appellant's birth certificate that had been admitted into evidence without objection], and it was found in a — a medical examiner — a medical examiner has a badge . . . This was found inside that portion of the badge case with the badge being exposed over here. . . .

Prosecutor: And did you determine where that badge came from?

Detective Bragg: I found it odd that a medical examiner would have a badge in [appellant's] desk. I located the medical examiner at that very moment. I used the city's phone and called her, explained who I was — that I was serving —

The Court: No, we are not going into this. Sorry. Go ahead. Another topic.

Later, when appellant testified, the prosecutor cross-examined him about the badge without objection. Appellant explained that he kept the badge because he thought it was "neat." Even if we were to assume that appellant's global objection at the outset of the hearing was sufficient to preserve any alleged error as to the relevance of the medical examiner's badge, appellant did not object to the badge or the testimony about the badge as extraneous evidence.¹ To preserve a complaint for appellate review, the complaining party must lodge a timely and specific objection stating the grounds with sufficient clarity to advise the trial court of the basis for the complaint. See Tex. R. App. P. 33.1(a) (1) (A); Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005). When an appellant has denied the trial court an opportunity to rule on the complaint later advanced on appeal, nothing exists for the appellate court to review because there is no ruling from the trial court to assess. See Flores v. State, 871 S.W.2d 714, 720 (Tex.Crim.App. 1993). An objection at trial that does not comport with the complaint on appeal presents nothing for our review. Chambers v. State, 903 S.W.2d 21, 32 (Tex.Crim.App. 1995). In addition, any complaint concerning the admission of evidence is waived when a party fails to object to the same or similar evidence admitted at another point in the trial. Jones v. State, 111 S.W.3d 600, 606 (Tex.App.-Dallas 2003, pet. ref'd). Because appellant did not assert an extraneous evidence objection and testimony about the badge was subsequently elicited without objection, we conclude the issue has not been preserved for our review. Appellant's third issue is overruled.

Mistrial Based on Extraneous Evidence

In his fourth issue, appellant argues the trial court erred in overruling his motion for mistrial after the prosecutor broached the subject of an extraneous offense alleged to have occurred in Red Oak, Texas in 1996. The State responds that the evidence was admissible and was already before the jury, or alternatively, that the court's limiting instruction cured any harm. The reference to the evidence at issue occurred during Detective Bragg's testimony:

Prosecutor: So you were speaking with this other detective regarding cases in Red Oak?

Detective Bragg: Sergeant Fullerton had already been made aware of a previous case from `96.

Defense counsel objected to the discussion of an extraneous offense, and the objection was sustained. The court then told the jury "[m]embers of the jury, you're instructed to disregard in its entirety the last answer by the officer." Defense counsel's motion for a mistrial was denied. Generally, a timely instruction to disregard cures an error associated with an improper question and answer, even one regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783-84 (Tex.Crim.App. 2000); Whitaker v. State, 977 S.W.2d 595, 560 (Tex.Crim.App. 1998). A mistrial, however, is appropriate for only a narrow class of highly prejudicial and incurable errors. Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). Therefore, a mistrial should be granted only in cases where the "reference was clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to remove the harmful impression from the juror's minds." Rojas v. State, 986 S.W.2d 241, 250 (Tex.Crim.App. 1998). After reviewing the record, we conclude the trial court did not abuse its discretion in denying appellant's motion for a mistrial because the improper testimony was not clearly calculated to inflame the juror's minds nor was it of such a character as to suggest the impossibility of withdrawing the impression left on the jury. The trial court's instruction to disregard was prompt and unequivocal, and was fully sufficient to cure any harm resulting from the impression left on the jury. Appellant's fourth issue is overruled. Having resolved all of appellant's issues against him, we affirm the judgments of the trial court.