Williams, Jr., Kenneth Ray v. State

Opinion issued January 16, 2003 In The Court of Appeals For The First District of Texas NO. 01-02-00166-CR KENNETH RAY WILLIAMS, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 179th District Court Harris County, Texas Trial Court Cause No. 851614 MEMORANDUM OPINION A jury found appellant, Kenneth Ray Williams, Jr., guilty of aggravated assault of a public servant and assessed punishment at 40 years’ confinement. In three points of error, appellant argues that the trial court erred in denying two of appellant’s challenges for cause, the evidence was legally and factually insufficient to support his conviction, and the trial court erred in failing to grant his motion for a mistrial. We affirm. Facts On July 31, 2000, Houston Police Officers Sutton and Randall set up a surveillance of a high-crime area from an unmarked Jeep. Sutton and Randall randomly selected license plate numbers from cars and checked them over the radio with other officers who would then check the license plate numbers using a computer. When Sutton and Randall checked the license plate number of a Geo Prism that drove by them, it was reported as a stolen vehicle. Sutton and Randall described the Geo and its direction of travel over the police radio and told the other officers that the Geo was occupied by two people. Houston Police Officer Aldape was notified over the radio of the stolen Geo. Aldape spotted the Geo, and he and Houston Police Officer Meraia got behind the Geo to stop it. Aldape and Merai activated their lights and sirens and sounded their horns, but the Geo did not stop. The Geo eventually pulled into the Willow Wood Apartments and slowed down. At that time, while Aldape was behind the Geo, the passenger door opened and appellant, sitting in the passenger seat, leaned out of the car with a pistol in his hand and “started shooting.” Aldape testified that appellant fired two to three shots at him. Aldape returned fire with his revolver, firing a single round. Houston Police Officers Crew and Benavides were driving behind Aldape and Meraia when the Geo drove into the Willow Wood Apartment complex. Crew testified that he heard shots fired, and that he saw appellant pulling the gun back inside of the car. Benavides testified that he saw the appellant “hanging out of the vehicle” and firing a gun towards Officer Aldape. After the initial shooting, the driver of the Geo began driving through the apartment complex with Aldape in pursuit. During the chase, appellant again started firing at Aldape. The Geo eventually pulled out of the apartment complex and made a u-turn onto a public street. When the Geo came alongside Aldape’s patrol car, Aldape saw appellant gripping a pistol with two hands and taking aim at him. Aldape responded by firing another round at the Geo with his revolver. Officer Sutton testified that when he arrived at the apartment complex he saw appellant in the passenger seat “literally tracking that patrol car trying to get a good shot.” The Geo then pulled into a second apartment complex, and with the Geo still moving, the driver and appellant ran from the car. The Geo ultimately came to a stop after striking a parked car occupied by three children. Shortly thereafter, appellant was found and arrested on the second floor of one of the apartment buildings. Houston Police Officer Myskowski found two pistols next to a chain link fence alongside the apartment complex. He testified that they were probably recently disposed of because there had recently been a lot of rain, and the two pistols were not rusted, appeared to be clean, and were resting on top of dead leaves and foliage on the ground. Houston Police Officer Lambright, a crime scene investigator, identified the guns as a Dan & Wesson .357 magnum, and a Smith & Wesson .357 magnum. The Smith & Wesson had six empty shell casings in the cylinder, and the Dan & Wesson had five empty shell casings and a single bullet still under the firing pin where the primer got stuck. Lambright testified that at least 11 shots had been fired by appellant. Jorge, the driver of the Geo, testified for the State that, although he had been the driver, appellant had done all of the shooting. Denial of Appellant’s Challenges for Cause In point of error one, appellant argues that the trial court erred in denying his challenges for cause of two of the venire members. A venire member who has a bias in favor of or against the defendant may be challenged for cause. Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon Supp. 2003). A challenge for cause may also be made where the venire member has a bias or prejudice against any of the laws applicable to the case upon which the defense is entitled to rely. Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon Supp. 2003). The denial of appellant’s challenges for cause will be reviewed for an abuse of discretion. Robison v. State, 888 S.W.2d 473, 477 (Tex. Crim. App. 1994). We will give deference to the trial court’s ruling to deny a challenge for cause because the trial court is in the best position to see and hear the venire members. Id. (citing McCoy v. State, 713 S.W.2d 940, 945 (Tex. Crim. App. 1986)). It is particularly important to give deference to the ruling of the trial court where the venire member vacillated, made an unclear statement, or was contradictory. Rachal v. State, 917 S.W.2d 799, 810 (Tex. Crim. App. 1996). Appellant challenged venire member 17 for cause because venire member 17 had responded affirmatively when appellant asked if any of the venire members, or their family, had been assaulted with a weapon. Later, the following exchange occurred between the trial court and the venire member: Court: This had to do with the question about the weapon involvement. And frankly, I didn’t write down exactly what you said. Veniremember: My mother was assaulted. Court: Your mother was assaulted? Veniremember: Yes, by a couple of guys. One had a knife. Court: Okay. And I guess the nature of the question had to do with simply because of the nature of the offense, I guess, would you put a lesser standard on the State than proving the defendant’s guilt beyond a reasonable doubt? Veniremember:No, no. Court:You wouldn’t automatically vote guilty because your mother was involved? Veniremember:Absolutely not, no, sir. Court:Would you listen to the evidence and base your decision in this case based on what you heard in this case and not on anything extraneous that happened to your mother or anybody else? Veniremember:Absolutely, I would. Court:Just have a seat. Appellant also challenged venire member 38 for her opinion that the indictment indicated that appellant had done something and because of her opinion regarding appellant’s failure to testify. Appellant had asked if she believed that appellant must have done something if he was indicted. Venire member 38 replied by stating, “well, I have students all day long that may or may not have done exactly what the person said, but they had to do something to make the person even say something in the first place.” Later, the following exchange occurred between the trial court and venire member 38: Court:This had to do with the question about the indictment? Veniremember:Right. Court:The indictment is—we’ve already told you that. Were you saying that because there is an indictment, you’re presuming him guilty or— Veniremember:He was just saying like if, you know, that someone has already previously been said guilty— Court:Said what? Veniremember:Previously said they were guilty, like he was asking about my children at school. If I have a student at school and one child said that someone did something and I am already assuming that that child did something, it doesn’t mean they did exactly what this person is saying, but they did something to make that person warrant— Court:But you don’t know what it was. Veniremember:Exactly. Court:That’s kind of why we are here. Veniremember:Right. Court:—With the indictment. [sic] We know they have found there is some reason to believe we should be here. Veniremember:That’s what I was thinking [sic] saying. Court:But you’re not saying it is any evidence of guilt? Veniremember:No. Court:Just have a seat. Mr. Moncriffe:Judge, she had another issue on failure to testify. If he didn’t testify, she would hold that against him. Veniremember:I don’t think I said that. Court:You understand if the defendant doesn’t testify on his own behalf, I would give you the instruction you’re not to consider it as any evidence whatsoever? Could you follow that instruction? Veniremember:Uh-huh. Court:Just have a seat. Appellant has failed to show that venire members 17 and 38 had a bias or prejudice towards appellant or the law applicable to the case, or that they were unfit to serve on the jury for any other reason. Venire member 17 said that he could base his decision on the evidence and would not consider anything that had happened to his mother when he was deciding the case. Venire member 38, while initially indicating that appellant would have had to have done something in the first place to be in the position he was in, later clarified to the judge that she would not use appellant’s indictment as evidence of his guilt. Venire member 38 also stated that if appellant failed to testify, she would not consider that as evidence against him. Both of these jurors were clear in their statements that they would follow the instructions given by the trial court. Accordingly, we hold that the trial court did not err in denying appellant’s challenges for cause. We overrule point of error one. Legal and Factual Insufficiency In his second point of error, appellant argues that the evidence was legally and factually insufficient to support his conviction because the evidence failed to show that appellant intentionally and knowingly threatened Aldape with imminent bodily injury. When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). A person commits assault when he intentionally or knowingly threatens another with imminent bodily injury. Tex. Pen. Code Ann. § 22.01(a)(2) (Vernon Supp. 2003). A person commits aggravated assault if the person commits an assault, and uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon 1994). An offense under section 22.02 is a first degree felony if the offense is committed against a person the defendant knows is a public servant while the public servant is lawfully discharging an official duty. Tex. Pen. Code Ann. § 22.02(b)(2) (Vernon 1994). A defendant’s intent may be inferred from his words, acts, and conduct at the time of the offense. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982). A person acts intentionally, or with intent, with respect to the result of his conduct when it is his conscious objective or desire to cause the result. Tex. Pen. Code Ann. § 6.03(a) (Vernon 1994). A person acts knowingly, or with knowledge, with respect to the result of his conduct when he is aware of the result of his conduct. Tex. Pen. Code Ann. § 6.03(b) (Vernon 1994). Appellant contends that the evidence only supports the fact that he fired a weapon in the direction of a police officer, but that it does not prove that he intentionally or knowingly threatened the officer. We disagree. Officer Aldape testified that appellant initially fired two to three rounds at him, and was “definitely” aiming at him. Officer Benavides testified that he saw the appellant “hanging out of the vehicle” and firing a gun towards Officer Aldape. Aldape testified that appellant continued to fire at him during the pursuit, and, at one point, was aiming the pistol at him with two hands as their cars were alongside one another. Officer Sutton testified that appellant was “literally tracking that patrol car trying to get a good shot.” The evidence showed that appellant fired approximately 11 rounds during the pursuit, and Aldape’s patrol car was struck twice by bullets from appellant. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant intentionally and knowingly threatened Officer Aldape with bodily injury by shooting at him with a pistol. Accordingly, we hold the evidence legally sufficient to support the verdict. In a factual-sufficiency determination, we must decide “whether a neutral review of all evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” King, 29 S.W.3d at 563. We will reverse only if a manifest injustice has occurred. Id. Appellant contends that because only the lower half of the patrol car was struck by bullets, and because appellant testified at the punishment phase of the trial that he was only aiming at the tires, the evidence is factually insufficient to support his conviction. But in making our factual-sufficiency determination, we will not consider evidence introduced at the punishment phase of trial. See Barfield v. State, 63 S.W.3d 446, 450 (Tex. Crim. App. 2001). Accordingly, we will not consider appellant’s testimony during the punishment phase of the trial that he was only trying to shoot the tires on Aldape’s patrol car. We hold that the evidence of two bullet strikes to the lower half of Aldape’s patrol car does not amount to proof that greatly outweighs the State’s evidence that appellant intentionally or knowingly threatened Officer Aldape with bodily injury. Accordingly, we hold that the evidence was factually sufficient to support appellant’s conviction. We overrule point of error two. Motion for Mistrial In his third point of error, appellant argues that the trial court erred in failing to grant appellant a mistrial because the State had continually argued outside of the four accepted areas of jury argument. Mistrial is a remedy used only for highly prejudicial and incurable errors. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). We will presume that the jury obeyed any instructions to disregard, and that any error was cured by the instruction. Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987). An instruction to disregard is usually adequate unless the testimony given 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 jury’s mind.” Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App. 1994) (citing Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992)). We review the decision of the trial court to deny a request for a mistrial under an abuse-of-discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The four generally approved areas for jury argument are (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Westbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Appellant contends that the first improper comment by the prosecutor concerned the range of punishment. The prosecutor had stated that, “basically, as you can tell, lesser means lesser offense, lesser range of punishment.” The trial court sustained appellant’s objection to the statement and gave the jury an instruction to disregard the statement, but did not grant appellant’s motion for mistrial. The prosecutor then stated, “The way it works is only if you find this defendant not guilty of aggravated assault . . . do you even consider the lesser of deadly conduct. So I believe you are not even going to get there . . . .” Appellant objected on the basis that the prosecutor was giving a personal belief, and the objection was sustained and an instruction to disregard was given to the jury. The trial court did not grant appellant’s motion for mistrial. Appellant also objected to the State’s rebuttal argument, when the State said, “we don’t know what would have happened if he had a third gun or a semiautomatic that carried more bullets.” Appellant’s objection to this statement was overruled. Lastly, appellant objected when the prosecutor, after stating that the police are often criticized, and have a thankless job, stated, “Would you, for the little money that they make, ever put yourself—” The trial court sustained the objection and gave an instruction to disregard the statement, but did not grant appellant’s motion for mistrial. Punishment may not be appropriately discussed by either side until and unless the defendant is convicted; then it may be discussed at the punishment phase. Garcia v. State, 887 S.W.2d 862, 877 (Tex. Crim. App. 1994), overruled on other grounds by Hammock v. State, 46 S.W.3d 888, 893 (2001). Here, the State improperly informed the jury that a lesser offense carries a lesser punishment. We will presume that the harm, if any, was cured by the trial court’s instruction to disregard. Gardner, 730 S.W.2d at 696. Here, where the State did not inform the jury what the range of punishment was for the charged offense or the lesser-included offense, and where the judge immediately gave the jury an instruction to disregard, we cannot conclude that the statement was of such “damning character” that it would have made it impossible to remove the harmful impression from the minds of the jurors. Kipp, 876 S.W.2d at 339. The prosecutor’s statement that he believed that the jury was “not even going to get there,” in reference to the jury’s consideration of a lesser offense, was not an impermissible one. The State is not permitted to give an unqualified personal opinion as to the guilt of the defendant. See Villalobos v. State, 568 S.W.2d 134, 134 (Tex. Crim. App. 1978) (holding that it was error for the prosecutor to argue that, “I don’t think that self-defense is adequate for this case,” and “I believe that he is just as guilty as he can possibly be.”). But the State may give a qualified statement in his belief that is predicated upon the evidence adduced at trial. Davis v. State, 642 S.W.2d 510, 512 (Tex. Crim. App. 1982) (holding that it was not error for the prosecution to state that, “I think there’s evidence beyond any reasonable doubt that the defendant did participate in the offense, that he’s the second person who raped [complaining witness]”). We believe that the statement of the State in this case was more like the one given in Davis. The statement here was not an unqualified opinion of the prosecutor as to the guilt of appellant; rather, it was more like a statement of the State’s belief as to the conclusion that the jury would come to after reviewing the evidence. A prosecutor who manifests his belief as to what action the jury will take after reviewing the evidence is not analogous to a situation where a prosecutor unqualifiedly tells the jury that he believes the defendant to be guilty. Accordingly, we hold that the State’s comment was not an improper jury argument. Likewise, the State’s comment that, “we just don’t know what would have happened if he had a third gun” was not improper. Speculation is not improper if it is based upon reasonable deductions from the evidence. See Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984) (holding that it was proper for the State to ask the jury to speculate on what the defendant would have done if the police had not arrived); Gonzales v. State, 831 S.W.2d 491, 494 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (holding that it was proper for the prosecutor to ask the jury to speculate on what would have happened if the defendant had been two steps closer to the victim when he slashed at him with a knife). Here, where the evidence showed that appellant had run out of bullets in one gun, and had tried to fire all of the bullets in the other gun, it was not improper for the State to ask the jury to speculate on what could have happened if appellant had had another gun or a different kind of gun that carried more bullets, because such speculation was a reasonable deduction from the evidence. The State’s comments to the jury that the police are often criticized and overworked, and the State’s question to the jury as to whether they would ever put themselves in the position that police officers are in, were also proper jury argument as a plea for law enforcement. Generally, “golden rule” arguments, or those arguments that ask the jury to place themselves in the position of the victim, are not permissible. See Boyington v. State, 738 S.W.2d 704, 709 (Tex. App.—Houston [1st Dist.] 1985, no pet.) (“[T]he repeated urging for the jury to place themselves in the shoes of the victim . . . could only be designed to inflame the passions of the jury . . . and is manifestly improper . . . .”). But here, the State did not ask the jury to put themselves in the shoes of a victim; rather, the State was seeking the sympathy of the jurors for law enforcement officers generally. A plea for law enforcement is proper jury argument. Westbrook, 29 S.W.3d at 115. Appellant does not explain how the State’s argument was not a plea for law enforcement. Accordingly, we hold that the comment by the State was permissible jury argument. Alternatively, even if the comment was not proper, we will presume that the trial court’s instruction to disregard cured any harm that was caused by the statement. We overrule point of error three. Conclusion We affirm the trial court’s judgment. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Nuchia and Jennings. Do not publish.