Murillo, Mark Anthony v. The State of Texas--Appeal from 177th District Court of Harris County

Affirmed and Memorandum Opinion filed March 27, 2003

Affirmed and Memorandum Opinion filed March 27, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00068-CR

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MARK ANTHONY MURILLO, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 830,978

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M E M O R A N D U M O P I N I O N

Mark Anthony Murillo appeals a conviction for murder[1] on the grounds that: (1) the trial court erred by denying his motion for mistrial and overruling his objection regarding improper jury arguments; and (2) the evidence is factually insufficient to support the conviction. We affirm.

Jury Argument

Appellant s first point of error contends that the following portions of the State s jury argument improperly alluded to his failure to testify:

He also didn t show the detective any evidence of that. If he wants you to believe that his truck was being broken into and justifies the shooting of William Gagnard with this defense of property issue, why didn t he call the police that night?

* * * *

And he doesn t have to testify. He doesn t have to make any statement at all, none at all. But remember, where is the truck? Did Detective Kuhlman ever get to see the truck? Did he ever get to examine the truck to say, Hey, here is the broken window ? The truck was still in there in the hands of this defendant. Who had control over that evidence? Who had the ability to prove to you that any kind of theft of property occurred?

(emphases added). The trial court sustained appellant s two objections to the above comments and instructed the jury to disregard them, but denied appellant s two motions for mistrial.

Prosecutorial comment that refers to an accused s failure to testify violates his constitutional and statutory privilege against self-incrimination. See Canales v. State, No. 73988, slip op. at 5, 2003 WL 122555, at *3 (Tex. Crim. App. Jan. 15, 2003); Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon1979). However, an instruction by the trial court to disregard will generally cure a comment on the failure of the accused to testify in all but the most blatant examples, i.e., those where the prejudicial effect could not have been removed by the instruction. Moore v. State, 999 S.W.2d 385, 405 (Tex. Crim. App. 1999); Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999). Denial of a request for mistrial is reviewed for abuse of discretion. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000).

To whatever extent the prosecutor s comments above were a comment on appellant s failure to testify and were not invited by appellant s argument, which we do not decide, they were not so blatant that the trial court s instructions to disregard could not have removed any prejudicial effect.[2] Accordingly, the trial court did not abuse its discretion in denying appellant s request for a mistrial, and appellant s first point of error is overruled.

Appellant s second point of error contends that the trial court erred in overruling his objection to another instance of the prosecutor improperly commenting on the defendant s failure to testify.

Where a prosecutor, on his own initiative, asks a jury to draw an adverse inference from a defendant s silence (such as treating it as substantive evidence of guilt), the privilege against compulsory self-incrimination is violated. United States v. Robinson, 485 U.S. 25, 32, 34 (1988). However, where a prosecutor s reference to the defendant s opportunity to testify is a fair response to a claim made by the defendant or his counsel, there is no violation of the privilege. Id. Thus, in Robinson, after defense counsel argued that the government had denied the defendant an opportunity to explain his side of the story, the prosecutor s statement, that the defendant could have taken the stand and explained anything he wanted to, did not violate the defendant s Fifth Amendment rights. Id. at 31. Similarly, in Allen, after defense counsel argued that the State was bringing the jury an incomplete picture by failing to produce evidence about the stolen stereo, the appellant s Fifth Amendment rights were not violated when the State argued, Show us the [stolen stereo] receiver and maybe we will get you some fingerprints. Somebody knows where it is, from the evidence you heard, [the appellant] knows what happened to it. See Allen v. State, 693 S.W.2d 380, 384, 385-86 (Tex. Crim. App. 1984).

In this case, appellant s counsel argued that the State had failed to develop or offer various items of evidence in order to deceive the jury. The prosecutor responded with the following argument:

The defense talked to you about the evidence that you want to see. Well, you know, there s all kinds of evidence that we would all like to see.

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You may still have questions. That is normal. These elements are what have to be proven to you beyond a reasonable doubt; and if you wonder about other things, well, that s okay. So do I. There are questions that we may never have answered, things that only this man ever will know, things that the complainant only can tell you.

(emphasis added).

As compared to Allen, where the appellant argued only that the State failed to produce evidence showing a complete picture, appellant in this case accused the State of deliberately attempting to deceive the jury.[3] Moreover, as compared to Allen, where the State specifically blamed the appellant for the absence of the evidence he had complained about, the State in this case merely acknowledged that unanswered questions (in the abstract) are normal in a criminal trial for various reasons, including that there are things that only appellant and the complainant knew. To the extent this was a comment on appellant s failure to testify, it was a fair response to appellant s accusations and, if anything, a milder response to a harsher assertion than those made by the parties in Allen. Accordingly, the trial court did not err in overruling appellant s objection, and his second point of error is overruled.

Sufficiency of the Evidence

Appellant s third point of error contends that the evidence is factually insufficient to support a finding that he was the person who committed the murder or was even present because the evidence supporting conviction essentially consisted of only the facts that he owned a gun of the same caliber as that with which the complainant was shot and the conflicting testimony of Doug Ross, a convicted felon.

In reviewing factual sufficiency, we look at all of the evidence in a neutral light, and will reverse only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

In this case, the jury was authorized to convict appellant of murder, among other grounds, if it found either that he intentionally killed the complainant or that someone else did so and appellant, with the intent to promote or assist the commission of the offense, aided or attempted to aid the other person(s) commit the offense.[4]

The witnesses at trial described a sequence of events, lasting only several minutes, in which: (1) a small car left the apartment complex in which appellant lived; (2) two men ran across an adjacent field shooting at the car; (3) the two men got into a pickup truck driven by appellant s father; (4) the pickup truck chased the car; (5) the car and truck were seen alongside one another in a trailer park a short distance from the apartment complex; (6) gun shots were fired at the car from the truck; (7) the car drove out of the trailer park and through the wall of a building across the street; and (8) the pickup truck returned to the apartment complex, and the men in it hurriedly got out and then left the complex a few minutes later. The complainant was found fatally shot in the car inside the building.

One of the witnesses, Ross, gave conflicting testimony that appellant was one of the men running across the field, shooting at the car. However, both Ross and another witness, Barnett, testified that appellant was one of the men who got out of the pickup truck upon its return to the apartment complex. Ross further testified that appellant was carrying a pistol at that time. Appellant moved out of the apartment within a day of the shooting and lived in Mexico for a year.[5]

Although another witness testified that appellant had been at a party preceding the time of the shooting and had become too intoxicated to run across the field, and despite Ross s conflicting testimony and felony conviction, the evidence reasonably supported the overall sequence of events and the facts that appellant was one of the men in the pickup truck, was carrying a gun, and fled after the shooting. Under these circumstances, we cannot say that the evidence is factually insufficient to support his involvement as at least a party to the murder. Accordingly, appellant s third point of error is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed March 27, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] A jury convicted appellant and sentenced him to 20 years confinement.

[2] See, e.g., Long v. State, 823 S.W.2d 259, 269-70 (Tex. Crim. App. 1991) (holding that instruction to disregard cured any prejudice from prosecutor s argument, Who knows what those facts are? Who could provide these lawyers with the means of compelling that evidence and having it brought before you? [Appellant,] David Martin Long. ).

[3] In this regard, defense counsel stated, among other things, Another wrong picture they were trying to paint you. . . . Why would they deceive you like that? . . . If they are deceiving you about this, what else are we being deceived about?

[4] See Tex. Pen. Code Ann. 7.02(a) (Vernon 2003).

[5] Because appellant does not challenge the legal sufficiency of this evidence, we need reach no conclusion about it.