Gilmore, Kenneth Wayne v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Opinion filed April 17, 2003

Affirmed and Opinion filed April 17, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00645-CR

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KENNETH WAYNE GILMORE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 893,844

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

Appellant, Kenneth Wayne Gilmore, was charged by indictment with the felony offense of burglary of a habitation. Appellant pled true to two enhancement paragraphs and the judge assessed appellant=s punishment at fifty years= imprisonment. In two points of error, appellant contends: (1) the evidence was legally and factually insufficient to support his conviction, and (2) the trial court erred in refusing to grant a mistrial. We affirm.

On November 5, 2001, John Morse drove through the Briarmeadow subdivision to get to his apartment. As he turned onto Beverly Hill, he saw a car parked at a house on the corner of Beverly Hill and Ann Arbor. He then saw appellant carrying a bicycle from the direction of the garage. Appellant, wide-eyed and seemingly startled to see Morse, tripped over the bicycle and fell to the ground. Morse turned the street corner and stopped to watch appellant as he placed some unknown items into the backseat of his car and then attempted to force the bicycle into the trunk. Appellant never got the bicycle to fit properly in the trunk but jumped in the car anyway and sped off with the trunk lid still open. Morse thought it was peculiar for someone to treat an expensive looking bicycle so haphazardly, so he wrote down appellant=s license plate number and briefly gave chase.

Morse reported the events to the neighborhood community center who notified police and an officer was sent to the scene to investigate. Upon arrival, the officer noticed a gate leading to the backyard of the complainant=s house was open, and once inside the backyard, a door leading to the garage was also open. When the complainant, Paulo Manisck, arrived at the house, he inventoried his possessions and told police someone had stolen a bicycle from the garage and golf clubs from inside the house. He also told the officer it was unusual for the gate and door to be open, but the locks were old and easy to force open. Subsequently, Morse identified appellant in a photo array prepared by police, as the man he saw taking the bicycle.

 Legal and Factual Sufficiency

In his first point of error, appellant avers the evidence was legally and factually insufficient to support his conviction. Specifically, appellant contends there was insufficient evidence to show he actually entered the complainant=s habitation.

When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). We consider all of the evidence, both direct and circumstantial, whether properly or improperly admitted. Curry v. State, 893 S.W.2d 536, 540 (Tex. Crim. App. 1995). When considering factual sufficiency, we must examine the jury=s weighing of the evidence and review the evidence in a neutral light. Johnson v. State, 23 S.W.3d 1, 6 (Tex. Crim. App. 2000). Thus, we compare the evidence that tends to prove the contested fact with the evidence that tends to disprove the fact. Id. at 7. We are authorized to disagree with the jury=s determination, but we may not substitute our judgment for that of the fact finder. Id. We may set aside a verdict on factual sufficiency grounds only when the verdict is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Westbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000).

To support a conviction for burglary of a habitation, the State must prove the defendant (1) entered a habitation; (2) without effective consent of the owner; and (3) committed or intended to commit a felony, theft, or assault. TEX PEN. CODE ANN. ' 30.02(a)(1)B(3) (Vernon Supp. 2003). Burglarious entry can be proven by circumstantial evidence. See Gilbertson v. State, 563 S.W.2d 606, 608 (Tex. Crim. App. [Panel Op.] 1978); see also Garza v. State, 841 S.W.2d 19, 22 (Tex. App.CAustin 1994, pet. ref=d) (holding evidence was sufficient to show entry when appellant was seen walking away from recently burglarized building with stolen property).

Numerous incriminating circumstances establish appellant entered the garage. Morse watched appellant walking away from the garage carrying a bicycle. The complainant listed a bicycle as stolen from inside the garage and said golf clubs were stolen from inside the house. Additionally, the investigating officer noticed both a gate leading to the backyard and a door leading into the garage were left open after the burglary. The complainant stated that it was unusual for the gate and door to be open, but explained the locks were old and could have easily been forced open. Moreover, no other person was observed in the area. See Torres v. State, 491 S.W.2d 126, 128 (Tex. Crim. App. 1973) (explaining that presence at the scene of the offense alone is insufficient, but it is a circumstance tending to connect a person with a crime and taken with other facts, may be sufficient to show he was an actor in the crime). Furthermore, appellant looked startled and tripped over the bicycle when he realized Morse was watching him, which could suggest he had been caught in the act. Appellant then placed something into the backseat and attempted to force the bicycle into the trunk of his vehicle. Realizing this effort futile, he sped off with the trunk lid still open. See Clary v. State, 491 S.W.2d 900, 902 (Tex. Crim. App. 1973) (holding that flight may be considered as one circumstance tending to show guilt). We find the evidence, taken as a whole, is sufficient for a rational trier of fact to find that appellant entered the habitation and committed burglary. Additionally, the verdict was not so contrary to the great weight of evidence as to be clearly wrong. Appellant=s first point of error is overruled.

Improper Jury Argument

In his second point of error, appellant argues the trial court erred in refusing to grant a mistrial because of alleged improper jury arguments by the State=s attorney. Specifically, appellant complains that statements made by the prosecutor during closing arguments were so prejudicial that a jury instruction to disregard could not cure them.

Prior to closing arguments, appellant contends the State attempted to improperly illicit evidence regarding appellant=s criminal record:

MS. HALL [Prosecutor]: After speaking with Ms. Broussard, what was the next thing you did in your investigation.?

OFFICER LOTZ: After I found out who had been using the car, when she told me it was her boyfriend, I ran a criminal history on him.

MS. HALL: After running or trying to get that type of information, what did you do next?

THE COURT: Can I see the attorneys up here? Ladies and gentlemen, I=m going to ask you to step back to the jury room for a minute. There=s someone out in the hallway and I need to talk to them for a minute.

[Jury excused.]

THE COURT: With 24 years of experience, you know that you can=t talk about something like running a criminal record. You=re making me hold my breath that you=re going to say: After receiving his record or I=m ordering his receiving TDC pictures, it=s inappropriate. It=s not allowed. You know that. Do not refer to anyone=s criminal record on a defendant again unless it=s been a matter that=s been approved by a court. And you=re going to answer: I ordered a DPS photograph. I ordered photographs. That=s fine. But for me to feel the need to stop the trial for fear that you=re going to commit error is not good. Let=s bring in the jury.

MR. MONCRIFFE [Appellant=s attorney]: Your Honor, for the record before the jury comes in, I would like to make an objection to what he=s already alluded to. I feel that the jury has heard that and it=s prejudicial so much so that I would request that theCthat we declare a mistrial at this point, Your Honor.

THE COURT: That=s denied. If you would like, I=ll make an instruction for the jury to disregard the last few answers of the witness and I=ll allow her to step back a few steps andC

MR. MONCRIFFE: Your Honor, I think that will only highlight it more.

* * *

THE COURT: Okay. So the record is clear, I am willing to instruct the jury to disregard the last few comments. And counsel, on the record, has just stated that for tactical reasons, he is choosing for me not to do that, not to highlight it. And I did try to make it very casual [in excusing the jury] saying there was someone in the hall when there was not anybody in the hall.

MR. MONCRIFFE: That=s correct.

THE COURT: I tried to make it like the focus was not on what I thought was getting ready to come out. Okay. Now let=s bring the jury in.

Appellant seems to suggest that, thereafter, in closing argument, the prosecutor attempted to exploit the prejudicial impact of the above testimony by making the following comments:[1]

MS. HALL: What happened in this case is John Morse, unlike a lot of us, took the high road. . . . He didn=t just drive by that house, see Mr. Gilmore get in that car, fall over the bike as he=s trying to steal it, throw in the golf clubs or the things that John Morse saw and just drive off and call 911 and say, I think there=s something weird going on. That=s what most people would have done and driven off and not have to worry about it, not have to miss work to testify in front of a criminal whoC

MR. MONCRIFFE: Your Honor, I=m going to object to the allegation of a criminal. That=s totally improper at this point.

THE COURT: That=s overruled. I think that=s what she=s alleging. I think that=s her theory, what she=s alleging.

Proper areas of jury argument include: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) response to the argument of opposing counsel; and (4) a plea for law enforcement. Westbrook, 29 S.W.3d at 115 (Tex. Crim. App. 2000). Any argument outside of these areas will not constitute reversible error unless the argument is manifestly improper, violates a mandatory statute, or injects new and harmful facts into the proceeding. Harris v. State, 905 S.W.2d 708, 710 (Tex. App.CHouston [14th Dist.] 1995, pet. ref'd). A court should give the prosecutor wide latitude in drawing inferences from the evidence so long as the inferences are reasonable, fair, legitimate, and offered in good faith. See Denison v. State, 651 S.W.2d 754, 761B62 (Tex. Crim. App. 1983).

The argument made here was not improper. It is only when the prosecutor implies that the defendant has committed offenses not charged that argument becomes improper. See Walker v. State, 664 S.W.2d 338, 340 (Tex. Crim. App. 1984) (holding comment by prosecutor that defendant burglarized for a living was inappropriate where no evidence existed to show he earned a living from burglaries); see also Melton v. State, 713 S.W.2d 107, 114 (Tex. Crim. App. 1986) (explaining that arguments made by prosecutor that implied defendant had a scheme of theft and was one of two major thieves was outside of the record and impermissible). That is not what happened in this case. The State was not implying appellant burglarized for a living or that he had extraneous offenses. Rather, the State was simply alleging what is necessary in any criminal case: that a crime has been committed and the person charged with that crime is an alleged criminal. As such, the argument was both a reasonable deduction from the evidence and a plea for law enforcement.

Moreover, mistrial is a remedy to be used only for highly prejudicial and incurable errors. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). An instruction to disregard is usually adequate unless the testimony was clearly calculated to inflame the minds of the jury, or 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). Nothing in the prosecutor=s argument, even if it had been impermissible, was so inflammatory that an instruction to disregard could not have cured the harm. Appellant's motion for mistrial was properly denied.

Appellant further complains, however, that the following argument also constitutes improper jury argument:

MS. HALL: If a jury as jurors, if that=s not enough, then we need to change the law because what you=re going to require is that someone be caught in someone=s home in order to be held accountable for burglarizing someone, for violating someone=s home, for violating the sanctity of someone=s home. That=s what you=re going to require. So let=s change the law. Okay? Because if being identified not only in court but in a photo spread where you can=t see the body or anything else and being found in a car that you are known to drive in, okay, and ya ll heard the testimony from Patricia Broussard, if that=s not enough, then let=s not prosecute these cases because it=s a waste of time and let=s let them all come into our house. Okay. But you know what, IC

MR. MONCRIFFE: Judge, I object. That=s improper argument.

THE COURT: Sustained.

MR. MONCRIFFE: Ask the jury to be instructed to disregard that statement.

THE COURT: The jury will be instructed to disregard the last statement and not consider it for any purpose.

MR. MONCRIFFE: Defense moves for mistrial.

THE COURT: That=s denied.

Error is preserved when (1) the court overrules an objection to an improper jury argument, (2) the objection is sustained, but the court denies a request for an instruction to disregard the improper argument, or (3) the objection is sustained, an instruction is given, and the court improperly denies a motion for mistrial. See Koller v. State, 518 S.W.2d 373, 375 n. 2 (Tex. Crim. App. 1975). If the argument is improper and the objection is sustained, the court should grant a request to instruct the jury to disregard the improper argument. If, as in this case, an instruction is given and the court denies the defendant's motion for a mistrial, error results only when the argument is extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory that its prejudicial effect could not reasonably be removed from the minds of the jurors by the instruction given. See Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871 (1986); Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 871 (1992).

Appellant did not articulate at trial, nor does he attempt to explain on appeal, why the prosecutor=s argument was not a legitimate plea for law enforcement. Likewise, appellant cites no authority to suggest the aforementioned argument was improper. However, to the extent that the argument was improper, if it was, we find that curative action taken by the trial court was sufficient. In other words, the trial court's instruction to disregard was sufficient to cure any harm, because the prosecutor=s remarks were not so inflammatory that any prejudicial effect could not reasonably have been removed by the instruction. See Andujo v. State, 755 S.W.2d 138, 144 (Tex. Crim. App. 1988); Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985). The general rule is that an instruction to disregard will usually cure any harm. Anderson v. State, 633 S.W.2d 851, 855 (Tex. Crim. App. 1982). The trial court gave the jury an instruction to disregard, and we presume that the jury obeyed it. Accordingly, the trial court did not err in refusing to grant a mistrial.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed April 17, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

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

[1] Appellant=s point of error is framed with reference to improper jury arguments. Thus, we assume he did not intend to predicate reversible error on the aforementioned exchange. However, to the extent appellant does seek to complain about the incident, we do not find it to be reversible error.

We cannot discern from the record whether the trial court was admonishing the witness or the State=s attorney. In any event, the witness=s reference to Arunning a criminal history@ was neither incriminating nor prejudicial. It is common knowledge that this is standard police procedure, and the jury was never informed as to the results of the search. Generally, any error resulting from a nonresponsive statement is cured by an instruction to disregard. Faison v. State, 59 S.W.3d 230, 244 (Tex. App.CTyler 2001, pet. ref=d). To the extent the witness=s answer could have inferred the existence of a criminal record, we find it was curable by an instruction to disregard. Appellant=s counsel, however, neither objected nor requested an instruction to disregard. Accordingly, nothing has been preserved for our review.