Opinion
No. 05-06-00285-CR.
Opinion issued January 30, 2007. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-21563-KU.
Before Justices WHITTINGTON, MOSELEY, and O'NEILL.
MEMORANDUM OPINION
In four issues, Eddie Bernard Spencer appeals his conviction for the murder of Michelle Williams. After finding appellant guilty, the jury assessed punishment at life confinement. We affirm the trial court's judgment. In his fourth issue, appellant claims the trial judge erred in instructing the jury regarding probation during voir dire. To preserve a complaint for appellate review, a party must make a timely, specific objection in the trial court. Tex. R. App. P. 33.1(a)(1)(A); Harrison v. State, 187 S.W.3d 429, 433 (Tex.Crim.App. 2005); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004); Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App. 1995) (applying former rule 52(a)). The failure to object can waive even an error involving constitutional rights. Muniz v. State, 851 S.W.2d 238, 255 (Tex.Crim.App. 1993). Appellant did not object during voir dire when the trial judge discussed probation in the context of admonishing the jury panel to "keep an open mind to the full range of punishment." By failing to first raise his objection in the trial court, appellant has waived error, if any. We overrule appellant's fourth issue. In his first issue, appellant claims the trial judge erred in overruling his objections to the State's use of peremptory challenges. Appellant alternatively argues counsel was ineffective "for failing to make a proper inquiry and proper objection." Rule 38 of the rules of appellate procedure provides that a brief to the court of appeals shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contentions made, with appropriate citations to authorities and the record. Tex. R. App. P. 38.1(f), (h). The failure to adequately brief an issue, either by failing to specifically argue and analyze one's position or provide authorities and record citations, waives any error on appeal. See Hankins v. State, 132 S.W.3d 380, 385 (Tex.Crim.App. 2004) (issue inadequately briefed because appellant failed to provide any argument or authority in support of contention); Swearingen v. State, 101 S.W.3d 89, 100 (Tex.Crim.App. 2003) (issue inadequately briefed because appellant failed to apply law to facts as required under appellate rules); Jensen v. State, 66 S.W.3d 528, 545 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) ("Because appellant's argument on this point of error contains no citations to the record, he has waived appellate review of his complaint."). Under his first issue, appellant cites no authority to support his complaint nor does he apply the appropriate law to the facts of his case. Regarding his alternative claim-that trial counsel was ineffective-appellant again fails to provide argument or authorities and does not apply the appropriate law to the facts to explain how trial counsel's performance was deficient or to show how the deficiency prejudiced appellant. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Because appellant failed to adequately brief his first issue as mandated by the appellate rules, we conclude he waived these complaints. We overrule appellant's first issue. In his second issue, appellant contends the trial judge erred in denying his requests for a mistrial. Appellant also argues the cumulative effect of five improper statements undermines the defensive theory in this case. We cannot agree. Appellant first complains about Monika Davis's testimony that she was scared at trial because one of appellant's friends called her the night before she was scheduled to testify. Following Davis's statement, appellant objected without stating a basis for the objection and asked to approach the bench. The ensuing discussion occurred off the record. The judge subsequently instructed the jury to disregard the statement. Appellant did not request a mistrial. Appellant cites two other instances of purported improper testimony in which he failed to request a mistrial. By failing to request a mistrial, appellant did not preserve these errors, if any, for review. See Miller v. State, 83 S.W.3d 308, 319 (Tex.App.-Austin 2002, pet. ref'd) (to preserve error for review, defendant must receive adverse ruling on objection and ruling must be conclusive; failure to do so waives error). In the remaining two instances, appellant requested but was denied a mistrial. The first occurred following Davis's testimony that she believed appellant did not consider himself to be Williams's boyfriend. After objecting to the testimony as "speculation," appellant requested and received an instruction to disregard. His request for a mistrial was denied. The second instance occurred as follows:
Prosecutor:
What is the next thing that you remember seeing?
Davis:
The next thing that I remember seeing-I placed the call to 911 and about five to ten minutes later I walked over to where my friend Michelle was at.
And she was laying on the ground on her back and her head was to the side and she was-her face was bloody and she was laying there, People were standing around her and talking saying, "She's alive. She's dead. He killed her."Appellant objected to "hearsay statements." The judge sustained the objection and upon appellant's request, instructed the jury to disregard the testimony. Appellant then requested and was denied a mistrial. Initially, we note that, as in his first issue, appellant cites no law for the proposition that any of the complained-of testimony was erroneous. Therefore, he has waived any error on appeal. See Hankins, 132 S.W.3d at 385. Nevertheless, after reviewing the complained of testimony, we cannot conclude the trial judge erred in denying appellant's requests for a mistrial. A mistrial is an extreme 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) (citing Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003) and Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999)). The trial judge essentially conducts an appellate function by "determining whether improper conduct is so harmful that the case must be redone." Hawkins, 135 S.W.3d at 77. The harm analysis is conducted in light of the trial judge's curative instruction, and only in extreme circumstances-where the prejudice is incurable-will a mistrial be required. Hawkins, 135 S.W.3d at 77. In most cases, an instruction to disregard is sufficient to cure any harm. See Dinkins, 894 S.W.2d at 356 (instruction to disregard improper comment on appellant's post-arrest silence generally sufficient to cure any harm); Brown v. State, 92 S.W.3d 655, 662 (Tex.App.-Dallas 2002) (concluding instruction to jury cured any harm from witness's improper statement), aff'd, 122 S.W.3d 794 (Tex.Crim.App. 2003); Butler v. State, 936 S.W.2d 453, 457 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd) (trial judge's instruction to jury to disregard was sufficient to cure any harm that may have been derived from unresponsive answer); Mathes v. State, 765 S.W.2d 853, 857 (Tex.App.-Beaumont 1989, pet. ref'd) (trial judge's instruction to jury to disregard was sufficient to cure any harm that may have resulted from hearsay testimony). In both of the above instances, the trial judge promptly instructed the jury to disregard the complained-of testimony. We presume the jury followed the trial judge's instruction to disregard. Wesbrook v. State, 29 S.W.3d 103, 116 (Tex.Crim.App. 2000). After reviewing this case, we cannot conclude the testimony appellant complains of was so clearly calculated to inflame the minds of the jury or of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. See Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992); Brown, 92 S.W.3d 662. Furthermore, after examining the entire record in this case, we cannot conclude the cumulative effect of these errors warrants the reversal of appellant's conviction. As noted previously, three of the issues appellant raises as error were not preserved. With respect to the remaining two objections, the trial judge promptly ruled and instructed the jury to disregard when requested. However, none of the complained-of incidents in this case are of the magnitude to constitute cumulative error. See Wright, 28 S.W.3d at 537. Therefore, we overrule appellant's second issue. In his third issue, appellant claims trial counsel was ineffective for failing to argue appellant's innocence during closing. Under this issue, appellant claims counsel failed to argue appellant's innocence and failed to call appellant during guilt/innocence. Although appellant contends we must reverse his conviction, we disagree. We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). In brief, it is appellant's burden to show by a preponderance of the evidence (i) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (ii) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson, 9 S.W.3d at 812. We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Thompson, 9 S.W.3d at 812. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 812. The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Although appellant filed a motion for new trial, the complaint raised in his motion was that the "verdict and sentence is [sic] contrary to the law and evidence." His motion did not allege he received ineffective assistance of counsel at trial. Therefore, as was the case in Thompson, the record provides no discussion of trial counsel's purported errors. It contains no discernible explanation of the motivation behind counsel's decisions during trial. Because the record is silent regarding any explanation for counsel's actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App. 2003 ) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose off establishing this claim."); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in particular manner). We overrule appellant's third issue. We affirm the trial court's judgment.
Although the State argues we need not address this concern because the court of criminal appeals has "flatly rejected" the concept of cumulative error, we nevertheless address his complaint. See Wright v. State, 28 S.W.3d 526, 537 (Tex.Crim.App. 2000) ("A number of errors may be found harmful in their cumulative effect."); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999) ("It is conceivable that a number of errors may be found harmful in their cumulative effect.").