Michael McCardle v. State

Opinion of July 24, 2007, Withdrawn, Affirmed and Corrected Memorandum Opinion filed August 2, 2007 Opinion of July 24, 2007, Withdrawn, Affirmed and Corrected Memorandum Opinion filed August 2, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00781-CR ____________ MICHAEL MCCARDLE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 339th District Court Harris County, Texas Trial Court Cause No. 0140846 C O R R E C T E D   M E M O R A N D U M   O P I N I O N The court withdraws its opinion of July 24, 2007 and issues a corrected opinion in its place due to an incorrect trial court number. Appellant, Michael McCardle, appeals his conviction for murder and sentence of life imprisonment. In two issues, appellant argues that the trial court erred when it refused to (1) instruct the jury on aggravated assault as a lesser included offense of capital murder, and (2) grant mistrial after improper argument by the State. We affirm. I. Background On September 15, 2005, Raul Romero Perez was shot and killed during a confrontation between a group of African-American youths, which included appellant, and a group of older Hispanic men, which included Perez. Appellant was arrested that night in connection with the incident and indicted for capital murder. The indictment alleged that appellant shot and killed Perez in the course of committing a robbery. At trial, appellant=s lawyer argued that appellant did not attempt to rob Perez; instead, appellant shot Perez only after Perez verbally harassed him and threatened him with a knife. A statement appellant gave at the time of his arrest was read to the jury. In it, appellant explained: AI pulled my .380 handgun out of my front right short [sic] pocket and pulled the trigger once. I shot the Mexican once because he was coming at me with a knife.@ At trial, Jorge Morales, Jose Morales, and Jarvis Campbell all testified that at the time of the shooting, appellant was attempting to rob the group of men that included Perez. The witnesses also indicated that when appellant threatened Perez with a gun, Perez stepped forward and gestured with a knife. Appellant requested an instruction on the lesser included offense of aggravated assault. He based his request on evidence indicating that appellant was backing up at the time the shot was fired and on appellant=s statement AI feel bad about what happened to the Mexican dude.@ The court denied appellant=s request for an instruction on the lesser charge. During closing argument, defense counsel asserted that the confrontation preceding the shooting was a street fight rather than a robbery. In the State=s closing argument, the prosecutor called attention to appellant=s failure to call his brothers to testify in support of his claim that a street fight, not a robbery, occurred. Appellant objected to the following comment, arguing that it was outside of the record: [T]he fact that you don=t have Colby or Ivory here to say that this wasn=t a robbery is huge. It is significant. And it is something that you can consider when you deliberate. There is nothing improper about saying, AWhy weren=t they here to say it wasn=t a robbery,@ because they can=t help their brother. They know it was a robbery, too. The court sustained appellant=s immediate objection but denied his motion for mistrial. The jury found appellant guilty of capital murder, and he was sentenced to life without parole. II. Lesser Included Offense In his first issue, appellant contends that the trial court erred in refusing to instruct the jury on aggravated assault as a lesser included offense of capital murder. The State alleged in its indictment that in the course of a robbery, appellant intentionally caused the death of Raul Romero Perez by shooting him with a firearm. Appellant asserts that he was entitled to an aggravated assault instruction because (1) the elements of the lesser offense are included within the elements of the greater offense, and (2) there was evidence suggesting that appellant lacked the requisite mental state for a murder conviction. Whether one offense is a lesser included offense of another is determined by application of article 37.09 of the Code of Criminal Procedure, which provides: An offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09. The Court of Criminal Appeals recently clarified the two-step analysis to be used in applying article 37.09. Hall v. State, No. PD-1594-02, 2007 WL 1343110, at *8-9 (Tex. Crim. App. May 9, 2007). In the first step, the elements of the offense as alleged in the indictment are compared to the statutory elements of the potential lesser included offense. Id. at *8. If the elements of the lesser offense could be established by proof of the same or less than all of the facts required to establish the commission of the charged offense, then the analysis moves to the second step. Id. at *9. In the second step, the evidence adduced at trial must be reviewed to determine if there is some evidence to support instructing the jury on the lesser included offense. Id. In order to support submission of the lesser included offense, the evidence must include proof of the lesser offense, and the evidence must show that if the defendant is guilty, he is guilty only of the lesser included offense. Id. (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). We begin the first step of the analysis by considering the statutory elements of capital murder as modified by the specific allegations in the indictment: (1) appellant (2) intentionally (3) caused the death of an individual (4) by shooting the individual with a firearm (5) in the course of robbing or attempting to rob the individual. See Tex. Penal Code Ann. ' 19.03. We then compare these charged elements with the statutory elements of the requested lesser offense of aggravated assault: (1) appellant (2) intentionally, knowingly, or recklessly (3) caused serious bodily injury to an individual. Id. ' 22.02.[1] We then must determine whether the elements of the lesser offense could be established by the same or less than the proof required to prove the indictment for murder. The only question is whether serious bodily injury can be shown by the same or less proof than that required to show death. We hold that it can because proof of death clearly requires proof of serious bodily injury. See id. ' 1.07(46); Jackson v. State, 992 S.W.2d 469, 475 (Tex. Crim. App. 1999). In the second step of the analysis, we must examine the evidence adduced at trial to determine if there is some evidence to support instructing the jury on the lesser included offense. Hall, 2007 WL 1343110, at *9. Specifically, such evidence must include proof of the lesser offense and must suggest that if the defendant is guilty, he is guilty only of the lesser included offense. Id. In Jackson, the Court of Criminal Appeals stated that A[a] murder defendant is not entitled to an instruction on the lesser included offense of aggravated assault when the evidence showed him, at the least, to be guilty of a homicide.@ 992 S.W.2d at 475 (citing Forest v. State, 989 S.W.2d 365, 368 (Tex. Crim. App. 1999)).[2] The court went on to hold that because there was no evidence that the defendant did other than cause the death of the victim, the only lesser included offense available was another form of homicide, not aggravated assault. Id.[3] The point is that because the defendant did not dispute that he committed an act that resulted in the victim=s death, aggravated assault (or the mere causing of serious bodily injury) was not an option. See Tex. Penal Code Ann. ' 22.02. The same is true here. Appellant does not dispute that he committed an act that resulted in the victim=s death. Thus, aggravated assault is not an option under Jackson.[4] Accordingly, we overrule appellant=s first issue.[5] III. Closing Argument In his second issue, appellant contends that the trial court erred in denying his motion for mistrial after it sustained the objection to improper argument by the State and instructed the jury to disregard. In response, the State maintains that its argument was proper. As discussed in more detail above, the prosecutor pointed out during closing argument that neither of appellant=s brothers testified at trial. The prosecutor then suggested that the brothers could not support appellant=s contention that the confrontation was not a robbery because A[t]hey know it was a robbery, too.@ We assume without deciding, for purposes of our analysis, that the prosecutors argument was improper because he gave his version of the testimony the uncalled witnesses might have given. See Fant-Caughman v. State, 61 S.W.3d 25, 30 (Tex. App.CAmarillo 2001, pet. ref=d) (citing Johnson v. State, 649 S.W.2d 111, 116 (Tex. App.CSan Antonio 1983), aff=d, 662 S.W.2d at 368 (Tex. Crim. App. 1984)). We therefore consider whether the trial court erred in denying the motion for mistrial. Generally, an instruction to disregard will cure any error caused by improper jury argument. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996); Caron v. State, 162 S.W.3d 614, 618 (Tex. App.CHouston [14th Dist.] 2005, no pet.). We review the efficacy of such an instruction under an abuse of discretion standard. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). To require mistrial, the harm must be so serious as to make further proceedings futile. Id. at 77. When the argument exceeds permissible bounds and there has been an instruction to disregard, mistrial is warranted only when the argument is extreme, manifestly improper, injects new and harmful facts into the case, or violates a mandatory statutory provision. Westbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Here, in context, the prosecutor=s off-hand remark, A[t]hey know it was a robbery too,@ was not so strong or definitive as to take on the appearance of a statement of fact known by the prosecutor. Instead, the statement appears speculative in nature and based solely on appellant=s failure to produce his brothers= testimony.[6] Accordingly, we find that the trial court=s instruction was sufficient, and consequently, the court did not abuse its discretion in denying the motion for mistrial. See id. at 115-16 Appellant=s second issue is overruled. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Corrected Memorandum Corrected Opinion filed August 2, 2007. Panel consists of Chief Justice Hedges and Justices Hudson and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Although aggravated assault can be committed in differing manners, we restrict our consideration here to those apparent in appellant=s request in the trial court. See Tex. Penal Code Ann. ' 22.02. [2] Although Jackson and Forest pre-date Hall, the reasoning in these prior cases applies to the second step of the lesser included offense analysis, which was basically left unaltered in Hall. See Hall, 2007 WL 1343110, at *8-9. Consequently, Jackson and Forest still appear to be good law, post-Hall. [3] Under the Penal Code, homicide includes murder, capital murder, manslaughter, and criminally negligent homicide. Tex. Penal Code '19.01(b). [4] Appellant relies on Castillo v. State, 686 S.W.2d 377 (Tex. App.CSan Antonio 1985, no pet.), and Sledge v. State, 860 S.W.2d 710 (Tex. App.CDallas 1993, pet. ref=d), to support his contention that because some evidence existed indicating that he lacked the requisite mental state for murder, an aggravated assault charge was necessary. In both cases, the respective courts found for the defendants based on evidence that called into question whether the defendants were intentionally shooting at the victims. When asked if he was trying to hit the victim, the defendant in Castillo answered Anot intentionally,@ and in Sledge, the defendant indicated that he was shooting at a car and not at people. See Sledge, 860 S.W.2d at 712; Castillo, 686 S.W.2d at 378. However, as the court in Jackson explained, while evidence that appellant lacked the requisite mental state for murder may have entitled him to a charge on a lesser degree of homicide, it did not entitle him to an aggravated assault charge because the victim died as a result of appellant=s conduct. 992 S.W.2d at 475. It is thus questionable as to whether Castillo and Sledge are still good law after Jackson. [5] Appellant=s specific argument is that the evidence demonstrated he did not possess the requisite mental state for a murder conviction. [6] In Tucker v. State, we held that the trial court=s instruction to disregard was ineffective where the prosecutor had commented that: AAutopsy photos always have unzipped clothes. I know it.@ 15 S.W.3d 229, 237-38 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). We reasoned that the jury could have attached great significance to the comment because the prosecutor could be seen as having special expertise on the subject of autopsies. Id. In the present case, however, the prosecutor did not imply that his statement was based on any unique or extraordinary knowledge or expertise, and we do not find that the jury would have been compelled to attach much significance to his remark.