Dominique Bromon v. State

Affirmed and Memorandum Opinion filed August 5, 2008 Affirmed and Memorandum Opinion filed August 5, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00385-CR ____________ DOMINIQUE BROMON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause No. 1055532 M E M O R A N D U M   O P I N I O N Appellant, Dominique Bromon, was convicted of felony murder and sentenced to imprisonment for eleven years. In seven issues, appellant contends that the evidence is legally and factually insufficient, she received ineffective assistance of counsel, and the trial court erred with respect to the admission of evidence, an improper jury argument, and an instruction on the defense of mistake of fact. We affirm. I.  BACKGROUND On January 27, 2006, Officer Larry Sherwood of the Houston Police Department was patrolling in the Alief area when he ran the license plate on a black SUV that had been reported stolen two weeks earlier. Appellant, the driver, occupied the SUV with at least two other passengers. Officer Sherwood requested backup and decided to wait until backup arrived before activating his emergency equipment. As Officer Sherwood followed appellant into a pharmacy parking lot, two backup units arrived and pulled into the back of the parking lot. The backup units attempted to block appellant from exiting the parking lot while Officer Sherwood was behind her. Appellant, however, made a right-hand turn around the front of the two backup units, collided with one of the units, and drove out of the parking lot. The passengers asked appellant to stop, but she refused. Two of the occupants jumped out of the SUV, and appellant continued to drive. The officers activated their emergency lights and sirens, and a high-speed chase ensued. The officers pursued appellant for approximately four miles. During the chase, appellant ran through two stop signs, and while speeding through the second stop sign, she struck the side of Natasha Batiste=s car. The impact was described as an explosion, which ejected Batiste=s 12-year-old son from the vehicle. The child victim was thrown 75-80 feet from his vehicle and subsequently died from multiple blunt force injuries. After the collision, appellant jumped out of the black SUV and ran from the police. She was eventually caught and arrested by the officers. Appellant was charged by indictment for felony murder. The indictment alleged that while committing the felony of evading arrest, appellant engaged in an act, to wit, running a stop sign, that was clearly dangerous to human life resulting in the death of the victim. After a jury trial, appellant was found guilty and sentenced to 11 years= imprisonment. On appeal, appellant raises the following seven issues: (1) the evidence is legally insufficient to support her conviction; (2) the evidence is factually insufficient to support her conviction; (3) appellant received ineffective assistance of counsel because her trial attorney failed to request an instruction on a necessity defense; (4) appellant received ineffective assistance of counsel because her trial attorney opened the door to her extraneous offenses; (5) the trial court erroneously admitted three prejudicial and inflammatory autopsy photographs; (6) the trial court erroneously overruled her objection to an improper jury argument; and (7) the trial court erroneously denied appellant an instruction on mistake of fact. II.  SUFFICIENCY OF THE EVIDENCE In her first and second issues, appellant challenges the legal and factual sufficiency of the evidence. In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether a trier of fact could not have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony. Lancon v. State, 253 S.W.3d 699, 706-07 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). We must resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). In a factual sufficiency review, we review all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and manifestly unjust, or (2) whether, considering the conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence. Id. at 414‑15, 417; Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). Appellant contends that there is no or factually insufficient evidence of her intent to commit felony murder because she did not intend to commit an act dangerous to human life, to wit, running a stop sign, that resulted in the victim=s death. Appellant insists that she believed she had no other choice but to run the stop sign to avoid a potentially dangerous collision with the patrol officers pursuing her and nearby wreckers. In short, appellant contends that there is insufficient evidence on the element of intent because she did not intend to commit an act that was clearly dangerous to human life that gives rise to felony murder. The culpable mental state for the act of felony murder is supplied by the mental state accompanying the underlying felony giving rise to the act. Murphy v. State, 665 S.W.2d 116, 120 (Tex. Crim. App. 1983). Thus, the intent accompanying the underlying felony in the instant case, evading arrest, supplies the mental state for the act that is clearly dangerous to human life, running a stop sign. See id. (concluding that the intent from the underlying offense of arson supplied the mental state for the act of felony murder). It was unnecessary for the State to prove that appellant Aintentionally or knowingly@ committed the underlying felony and Aintentionally or knowingly@ committed an act clearly dangerous to human life. See id.; see also Johnson v. State, 4 S.W.3d 254, 255 (Tex. Crim. App. 1999) (stating that the State need not prove the mens rea accompanying the homicide for felony murder because the underlying felony supplies the culpable mental state); Drew v. State, 76 S.W.3d 436, 454 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (same). The State was only required to produce sufficient evidence of intent on the underlying offense of evading arrest. Appellant does not challenge the sufficiency of the evidence with respect to her intent to evade arrest.[1] Because the State was only required to produce sufficient evidence of intent on the underlying offense of evading arrest and did so, appellant=s first and second issues are without merit. We overrule appellant=s first and second issues. III.  INEFFECTIVE ASSISTANCE OF COUNSEL In her third and fourth issues, appellant contends that she was denied effective assistance of counsel. Specifically, appellant argues that her trial counsel (1) failed to request an instruction on the defense of necessity and (2) opened the door to her extraneous offenses. To prove ineffective assistance of counsel, appellant must demonstrate that: (1) her counsel=s performance was deficient because it fell below an objective standard of reasonableness; and (2) there was a reasonable probability that, but for counsel=s errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and we will sustain allegations of ineffectiveness only if they are firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We also indulge a strong presumption that counsel=s actions were motivated by sound trial strategy, and we will not conclude the action was deficient unless it was so outrageous that no competent attorney would have engaged in such conduct. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We look to the totality of the representation and not to isolated instances of error or to only a portion of the proceedings. In the absence of evidence regarding counsel=s reasons for the challenged conduct, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Freeman v. State, 125 S.W.3d 505, 506-507 (Tex. Crim. App. 2003). A. Ineffective Assistance of Counsel B Necessity Instruction With respect to an instruction on the defense of necessity, appellant must specifically admit to the charged offense to raise the defense. See Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999); Auston v. State, 892 S.W.2d 141, 145 (Tex. App.CHouston [14th Dist.] 1994, no pet.). Appellant, however, refused to admit that she committed the charged offense of felony murder. Appellant=s failure to acknowledge her criminal act deprived her of any entitlement to a necessity defense. Because appellant was not entitled to necessity as a defense, trial counsel may have made the strategic decision not to request the instruction. However, we cannot speculate on counsel=s motives in the face of a silent record. See Thompson, 9 S.W.3d at 813-14. We overrule appellant=s third issue. B. Ineffective Assistance of Counsel B Opening the Door Appellant also argues that she received ineffective assistance of counsel because trial counsel opened the door to her extraneous offenses. Specifically, trial counsel asked appellant on direct whether she had any previous traffic citations or arrests, and appellant responded ANo.@ On cross, the State impeached appellant with evidence of two previous citations for vulgar language in a public place and fighting.[2] Although the State was permitted to question appellant on extraneous criminal offenses, defense counsel=s question did not open the door to these criminal acts. Defense counsel asked the narrow question of whether appellant had received any traffic violations. To this narrow question, the State was improperly allowed to admit evidence beyond simple traffic violations. Because defense counsel=s question was limiting and did not open the door to extraneous criminal acts, we cannot find such conduct constitutes ineffective assistance.[3] We overrule appellant=s fourth issue. IV.  AUTOPSY PHOTOGRAPHS In appellant=s fifth issue, she alleges that the trial court erroneously admitted three autopsy photographs. Appellant argues that the photographs should have been excluded under Rule 403 of the Texas Rules of Evidence because their probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. When the trial court rules on a Rule 403 objection, we review the court=s ruling under an abuse of discretion standard. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). The test to determine if the trial court abused its discretion is whether the action was arbitrary or unreasonable. Id. We will not reverse a trial court=s ruling that is within the zone of reasonable disagreement. Id. at 440. In determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, we consider: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent=s need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). In determining the prejudicial effect of photographs, we may consider: (1) the number of photographs; (2) their gruesomeness, detail, and size; (3) whether they are in color; (4) whether they are taken close-up; (5) whether the person in the photograph is clothed; and (6) other factors unique to the situation. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy itself. Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001) (quoting Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998)). When photographs depict internal organs that have been removed to portray the extent of the injury to the organs themselves, the photographs are not considered to be depictions of mutilation of the victim. Id. at 151-52. Alterations caused by the autopsy are of minor significance if the disturbing nature of the photograph is primarily due to the injuries caused by the appellant. Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002). Overall, the photograph must be helpful to the jury. Erazo, 144 S.W.3d at 491. At issue in this case are three autopsy photographs, State=s exhibits 28, 29, and 30. Exhibits 28, 29, 30 are photographs of internal head injuries sustained by the victim in the collision. Exhibit 28 depicts a skull fracture and Adiffuse bleeding@ on the left side of the victim=s brain, while exhibit 29 depicts another skull fracture and hemorrhaging on the right side of the victim=s brain. Exhibit 30 depicts a different angle of the victim=s skull to show the full length of the skull fracture. The medical examiner, Dr. Sara Chauvin, testified that the internal injuries depicted in exhibits 28, 29, and 30 were caused by blunt force trauma from being ejected from his car. The photographs were admitted during the medical examiner=s testimony and assisted her in describing the location and nature of the injuries causing the victim=s death. The photographs are post-card size, and only black and white copies are included in the appellate record. It took little time to develop the evidence of these injuries. The three photographs were chosen out of 40 and were the only photographs admitted that depicted the internal injuries causing the victim=s death. The photographs are quite clinical in nature, and the fractures and hemorrhaging would not have been visible to the jury without the photographs. See Ripkowski v. State, 61 S.W.3d 378, 392-93 (Tex. Crim. App. 2001) (stating that photographs were highly relevant to the manner of death because they showed bruising or other damage that was attributable to the defendant=s actions but not externally visible). After considering the appropriate factors, we conclude the trial court did not abuse its discretion by finding the relevance of the photographs was not substantially outweighed by the danger of unfair prejudice. We overrule appellant=s fifth issue. V.  JURY ARGUMENT In appellant=s sixth issue, she contends that the trial court erred in overruling her objection to an improper jury argument made by the State. Proper jury argument must fall within one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to opposing counsel=s arguments; or (4) a plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Hernandez v. State, 171 S.W.3d 347, 357 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). The State is allowed wide latitude in drawing inferences from the evidence so long as the inferences drawn are reasonable and offered in good faith. Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). Appellant contends that the trial court erroneously overruled her objection to the State=s closing argument that attempted to characterize the trial court=s opinion of the case. In explaining the charge to the jury, the State argued the following: A[A]s you heard from the Judge reading, the lesser offense of evading arrest or detention resulting in death. And you=ll remember Mr. Donnelly talked to you about those lesser offenses, and he told you the fact that they may be in the charge does not mean that the Judge thinks the defendant may only be guilty of a lesser. It does not in any way mean there=s any evidence to show she=s guilty of the lesser.@ Defense counsel lodged an objection based on improper argument, and it was overruled. Appellant contends that the State, by stating the inclusion of the lesser-included offenses does not necessarily mean the Judge thinks appellant is only guilty of the lesser, improperly characterized the judge=s opinion of the case. We disagree. The State=s argument explained how a jury charge is developed and why the lesser-included offenses were included in the jury charge. The State is allowed wide latitude in drawing inferences from the evidence, provided those inferences are reasonable, fair, legitimate, and offered in good faith. See id. Viewing the argument in light of the facts adduced at trial and in the context of the entire argument, we cannot conclude that the State improperly characterized the trial court=s opinion of the case. Even if the prosecutor=s comment was improper, we cannot agree that any harm warrants the remedy of reversal. An improper comment during jury argument is considered a non-constitutional error. Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). The standard in Rule 44.2 is applied to review the harm of an improper jury argument and provides that a non-constitutional error that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b); Martinez, 17 S.W.3d at 692; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). To determine the harm of an improper jury argument, three factors are balanced: (1) the severity of the misconduct (the magnitude of the prejudicial effect); (2) curative measures (the efficacy of any cautionary instruction by the trial court); and (3) the certainty of the conviction in the absence of misconduct (the strength of the evidence supporting the conviction). Martinez, 17 S.W.3d at 692-93. Although there was no curative instruction, the State=s comment is not of such great magnitude to cause appellant severe prejudice. A reading of the record indicates that the State was simply explaining how this particular charge was developed, which is permissible. The complained-of comment was intended to explain the law applicable to the case and to urge the jurors to make reasonable inferences and deductions from the evidence. The severity of the comment is minimal. Furthermore, there is strong evidence to support appellant=s conviction. Officers Richard Lowe and Sherwood, Walter Chizer, and Dr. Chauvin provided overwhelming evidence that appellant committed the underlying offense of evading arrest and committing an act clearly dangerous to human life that resulted in the death of the victim. Accordingly, we hold that the trial court did not abuse its discretion in overruling appellant=s objection to the State=s jury argument. We overrule appellant=s sixth issue. VI.  JURY CHARGE In appellant=s last issue, she argues that the trial court erred in refusing to give an instruction on mistake of fact. The defense of mistake of fact is codified in section 8.02(a) of the Texas Penal Code, which provides that it is a defense to prosecution if the actor, through mistake, formed a reasonable belief about a matter of fact if her mistaken belief negated the kind of culpability required for commission of the offense. Tex. Penal Code ' 8.02(a). AKind of culpability@ means Aculpable mental state.@ Beggs v. State, 597 S.W.2d 375, 377-78 (Tex. Crim. App. 1980). When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, she is entitled to a defensive instruction on mistake of fact. Granger v. State, 3 S.W.3d 36, 41 (Tex. Crim. App. 1999) (quoting Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991)). The issue is whether the evidence cited by appellant, if believed, raises a mistake of fact defense by negating appellant=s culpable mental state. Dockstader v. State, 233 S.W.3d 98, 107 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d); Murchison v. State, 93 S.W.3d 239, 252 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Here, appellant was charged with felony murder under section 19.02(b)(3). See Tex. Pen. Code ' 19.02(b)(3). Section 19.02(b)(3) does not require a culpable mental state with respect to the act of murder itself or the act that is clearly dangerous to human life. The culpable mental state the State was required to prove was intent to commit the underlying offense of evading arrest. See Murphy, 665 S.W.2d at 120 (stating that the culpable mental state for the act of felony murder is supplied by the mental state accompanying the underlying felony giving rise to the act). Thus, a mistake of fact defense was available only if it negated the culpable mental state that formed the basis of evading arrest. Appellant testified that she believed she had to run the stop sign to avoid colliding with officers and wreckers. Appellant=s mistaken belief that she had to run the stop sign does not negate the culpable mental state on the underlying offense of evading arrest. Because the evidence does not raise mistake of fact, appellant was not entitled to an instruction regarding her belief that she had to run the stop sign. Accordingly, the trial court did not err in denying the instruction. We overrule appellant=s seventh issue. We affirm the trial court=s judgment. /s/ Frank C. Price Senior Justice Judgment rendered and Memorandum Opinion filed August 5, 2008. Panel consists of Chief Justice Hedges, Justice Boyce, and Senior Justice Price.* Do Not Publish C Tex. R. App. P. 47.2(b). _____________________________ * Senior Justice Frank C. Price sitting by assignment. [1] Notwithstanding, the record contains sufficient evidence that appellant intentionally or knowingly evaded arrest. There is undisputed evidence in the record that appellant refused to stop the vehicle she was driving after officers activated their emergency lights and sirens. The record reflects that although appellant knew of the officers= attempt to pull her over, she continued to lead officers on a four-mile chase. [2] The record does not reflect that these criminal citations resulted in an arrest. Rather, it appears appellant was temporarily detained and cited for the criminal offenses of vulgar language in a public place and fighting. [3] Although the extraneous criminal acts may have been improperly admitted based on trial counsel=s narrow question, we do not reach this issue because it is not before us. The issue, as briefed, challenges the effectiveness of trial counsel=s representation, not evidentiary error by the trial court.