JOHNNY DARNELL BELL, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed June 28, 2011.
Court of Appeals
Fifth District of Texas at Dallas
JOHNNY DARNELL BELL, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-40695-S
Before Justices Morris, Bridges, and Francis
Opinion By Justice Morris
A jury convicted Johnny Darnell Bell of retaliation. He complains in two issues on appeal that the evidence against him is legally insufficient and the trial court abused its discretion in denying his motion for mistrial based on alleged prosecutorial misconduct. Concluding appellant's complaints are without merit, we affirm the trial court's judgment.
Appellant got into a verbal confrontation with his next-door neighbor, the complainant, after appellant's nieces were playing with fire in their yard. According to the complainant, he first noticed the two girls lighting paper and attempting to set their fence on fire. The complainant went next door and knocked. Appellant answered, and when the complainant explained what he had seen, appellant politely stated that he was the girls' uncle and he would take care of it.
The complainant returned to his yard where he had been doing yard work. He then noticed that the same girls had climbed up a tree in their front yard and were now lighting paper on fire in the tree and throwing it onto the dry grass below. Concerned that the girls were going to start a fire, the complainant called “911 Mesquite Police Department” and asked them “to come out to take care of the problem.” When the police officers arrived, they spoke first to the complainant, then to appellant and the girls' mother.
Approximately three minutes after the officers left the scene, appellant confronted the complainant. The complainant testified that he was on the sidewalk steps in front of his house when appellant came onto the steps and “started cussing and hollering” at him. Appellant asked the complainant why he had called the police, and the complainant explained that the girls had attempted to start a second fire. Then appellant “started screaming and cussing at [the complainant] and threats.” The complainant called 911 while appellant was still standing on his steps. When he informed appellant that he was calling 911, appellant responded that he did not care. He told the complainant, “Call them back out here again, and I'll go over to my house and get my gun.” He specifically threatened to shoot the complainant. The complainant asked the 911 operator if she had heard the entire exchange. The operator said that she heard it and officers were on their way back to the scene.
The complainant specifically testified that appellant said he was going to shoot him because the complainant had called police after appellant had said he would take care of disciplining the girls. The complainant took this as a threat that appellant would kill him. According to the complainant, he was afraid for his life when appellant was threatening him. The complainant stated that while appellant was cursing at him before the police arrived a second time, the girls' mother was outside their house moving her lawn mower to the front yard.
Appellant's sister and one of his nieces testified for the defense. His sister claimed she never heard appellant threaten the complainant as she was moving her mower after the police left the scene the first time. She acknowledged that she had not heard the entire exchange between appellant and the complainant. She claimed that appellant was not on the complainant's property during the confrontation, but was on the sidewalk in front of the complainant's house.
Appellant's niece testified that she was outside in the front yard when appellant confronted the complainant from the sidewalk in front of the complainant's house. The niece also claimed that appellant never threatened the complainant. The girl's mother, however, claimed that her daughter was inside the house during the argument between appellant and the complainant.
In his first issue, appellant claims the evidence against him is legally insufficient because there is a fatal variance between the offense alleged and the proof at trial. He specifically argues the indictment alleged he had threatened retaliation against the complainant in response to the complainant's reporting the offense of criminal mischief to police but the proof at trial showed he had threatened retaliation in response to the complainant's intent to report his commission of the offense of criminal trespass onto the complainant's property.
A variance in proof occurs when there is a discrepancy between the allegations in the indictment and the proof offered at trial. In the case of a material variance or “fatal variance,” the indictment fails to give the defendant sufficient notice of the offense for which he may be convicted; the indictment sets out one distinct offense but the proof shows an entirely different offense. See Byrd v. State, 336 S.W.3d 242, 247 (Tex. Crim. App. 2011); see also Gollihar v. State, 46 S.W.3d 243, 248-49 (Tex. Crim. App. 2001). Here, the indictment alleged that appellant threatened to kill the complainant “in retaliation for and on account of the service and status of said complainant,” who had reported the occurrence of the crime of criminal mischief. The evidence showed that after the complainant called police about the criminal mischief of appellant's nieces, appellant went next door and threatened to shoot the complainant. There is no fatal variance. We resolve appellant's first issue against him.
In his second issue, appellant complains the trial court erred in denying his motion for mistrial. He contends the mistrial should have been granted on the basis of prosecutorial misconduct. During the defense's direct examination of appellant's sister, she admitted that she had tried to persuade her brother to stop arguing with the complainant and come back home before the police were called back again. She said to her brother, “J, you need to leave. You know how Mesquite is. Just leave.” She explained that after the offense, she eventually asked appellant to move out because “Mesquite would not stop knocking on our door. They would come at two and three o'clock in the morning with pistols drawn . . . .”
On cross-examination, a prosecutor asked the sister why she told appellant to leave the scene as he was arguing with the complainant. She replied, without objection, that she knew that the complainant would call the police to come back. The prosecutor asked, “If your brother wasn't doing anything wrong . . . why would you ask him to leave if he's not doing anything wrong?” Again, the sister replied without objection that she knew the complainant would call the police.
When the prosecutor asked the sister a third time why she insisted that appellant leave the scene, appellant objected that the question had been asked and answered and the objection was sustained. Within moments, the prosecutor again asked why the sister had told appellant to leave. Appellant again objected that the question had been asked and answered. The objection was again sustained. The prosecutor moved on to asking the sister if police spoke with appellant when they returned to the scene. The sister replied, without objection, that the police did not speak to appellant because he was not there. Then the prosecutor asked, “You also stated that you kept asking him to leave because you know how Mesquite is. What do you mean by that?” The defense did not object to the question or to the answer, “I've seen Mesquite violent toward my brother three different occasions where they beat him.”
At that point, the trial judge retired the jury and chastised the prosecutor regarding the relevance of her line of questioning. Following a discussion among the parties, the trial judge commented, “. . . it has to do with the State is intentionally trying to stress the witness into saying something regarding her brother's actions. And you got her - you did it. Congratulations. Now the appeal court can deal with it.” Before the jury was brought back into the courtroom, defense counsel made a “motion for mistrial based on this,” which was denied. At the conclusion of the questioning of the sister, the jury was retired and another prosecutor tried to explain why the Mesquite police question was asked. The trial judge stated that in his opinion the question was improper impeachment that cast aspersions on the defendant.
Appellant now contends the trial court erred in denying his motion for mistrial because the State “directly put his character at issue, which included his previous interactions with police officers,” and the State's actions were in direct violation of court orders and condemned on the record by the trial court. To preserve a prosecutorial misconduct complaint, a defendant generally must (1) make a timely and specific objection, (2) request an instruction to disregard the matter improperly placed before the jury, and (3) move for a mistrial. See Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993); see also Tex. R. App. P. 33.1(a)(1)(A). The initial objection must be made at the earliest possible opportunity, and the point of error on appeal must comport with the objection made at trial. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Appellant never made an objection on the record based on prosecutorial misconduct and never requested an instruction to the jury to disregard the State's questioning of the sister regarding why appellant fled the scene after arguing with the complainant. It is clear the trial court found the line of questioning objectionable on the basis of improper impeachment, but appellant never objected on this basis either. Nor did he offer a single justification for his motion for mistrial, other than the trial judge's displeasure with the prosecutor's actions. Appellant has failed to preserve this complaint for appellate review. We resolve his second issue against him.
We affirm the trial court's judgment.
JOSEPH B. MORRIS
Do Not Publish
Tex. R. App. P. 47