Gary Lloyd Miller v. The State of Texas--Appeal from 400th District Court of Fort Bend County

Affirmed and Memorandum Opinion filed March 29, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00224-CR

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GARY LLOYD MILLER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 41,468A

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

A jury convicted appellant Gary Lloyd Miller of aggravated assault and sentenced him to forty years= imprisonment in the Texas Department of Criminal Justice, Institutional Division. Appellant challenges his conviction in two issues: (1) the evidence is factually insufficient and (2) the trial court erred by failing to grant a mistrial following the State=s erroneous reading of the indictment. We affirm.

I. Factual and Procedural Background

Appellant and Belinda Musgrave met in 2003 and eventually married. Their relationship was often strained and volatile. On Tuesday, December 14, 2004, Musgrave=s employer informed her that she would not receive a Christmas bonus that year. When Musgrave told appellant, he became extremely upset. Appellant believed that Musgrave would not get a bonus because her co-workers did not like him and were trying to hurt him through Musgrave. He yelled and screamed at Musgrave in the car on the way home and continued his tirade until Thursday morning at Musgrave=s home. During this time, he would go to and from the house regularly. At one point, he pulled out Musgrave=s handgun, which she kept under their mattress, and said that he needed to kill himself or someone else because of how he felt. He also pointed the gun at Musgrave=s head, from a distance of approximately thirty inches, and threatened to kill her if he believed she was part of the conspiracy. Musgrave=s adult daughter, who lived with appellant and Musgrave, heard portions of the fight, including appellant checking the handgun to make sure it was loaded and threatening to kill himself or Musgrave.

The State filed charges against appellant, including the underlying charge of this case and other assault charges. A jury convicted appellant and sentenced him to forty years= confinement. Appellant timely filed notice of appeal. He contends that because evidence was introduced during the punishment phase which cast doubt on Musgrave=s credibility, the evidence is factually insufficient. He further contends he should have received a mistrial when the State erroneously read incorrect language from the indictment before reading the correct language.

II. Analysis

A. Factual Sufficiency

In his first issue, appellant challenges the factual sufficiency of the evidence. When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We may set the verdict aside if: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006). However, while we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that a court should not reverse a verdict it disagrees with, unless the verdict represents a manifest injustice even though supported by legally sufficient evidence). Also, in our review, we must discuss the evidence that, according to appellant, most undermines the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Musgrave and her daughter provided the necessary evidence to convict appellant. Both testified about the threats he made, and both testified that a gun was involved in the altercation. Musgrave testified that appellant had the gun in his hand, pointed it at her, and put her in fear of imminent bodily harm. The jury chose to believe this evidence, as was its province. Appellant concedes that this testimonial evidence supports the verdict, but he focuses on Musgrave=s credibility, arguing that it was undermined through testimony introduced in the punishment phase. Specifically, appellant contends that Musgrave=s inconsistent statements regarding her previous marijuana use go directly to her credibility before the jury. Appellant contends the evidence is factually insufficient because her testimony was central to the State=s case and, therefore, so was her credibility. However, we are limited in our review to the evidence introduced during the guilt/innocence phase of the trial. See Barfield v. State, 63 S.W.3d 446, 450 (Tex. Crim. App. 2001) (noting that in a bifurcated jury trial on a plea of not guilty, Aevidence that is introduced at the punishment stage of a trial can have little, if any, effect on the force of the evidence on the issue of guilt@ and therefore Aour consideration of the evidence is necessarily limited to that evidence before the jury at the time it rendered its verdict of guilt@ (internal quotation marks omitted)). Therefore, evidence introduced during the punishment phaseCwhen all of the testimony regarding Musgrave=s drug use was introducedCcannot be part of our review. Thus, we concluded that the evidence is factually sufficient to support the jury=s verdict, and we overrule appellant=s first issue.

B. Indictment Error

In his second issue, appellant alleges the trial court erred in failing to grant a mistrial after the prosecutor inadvertently read the wrong portion of the indictment. At the beginning of trial, after the jury was sworn, the State began to read the indictment in the jury=s presence. Although this particular case concerned a charge of threatening Musgrave with a firearm, the State erroneously read the following portion of the indictment alleging bodily injury before realizing its mistake:

In the name and by the authority of the State of Texas, the duly organized Grand Jury of Fort Bend County, Texas presents in the District Court of Fort Bend County, Texas that in Fort Bend County, Texas, Gary Lloyd Miller, hereafter styled the Defendant, heretofore, on or about December 14th, 2004, did then and there intentionally, knowingly and recklessly cause bodily injury to Belinda MusgraveCpardon me, causeCthreatenC

(emphasis added). At that point, appellant objected and the trial court conducted a bench conference outside the presence of the jury. The trial court sustained appellant=s objection, granted a motion to strike the statements, and granted appellant=s motion to instruct the jury regarding the error. The trial court did not grant appellant=s motion for a mistrial.

Once the jury returned, the trial court gave the following instruction:

Ladies and gentlemen of the jury, the prosecutor misspoke when he was presenting the indictment to you. The words that he spoke a while ago are not part of the indictment. He is now going to read the indictment and read it properly.

The State then read the correct indictment.

Appellant has not sufficiently briefed this issue in accordance with the rules of appellate procedure. Tex. R. App. P. 38.1(h). Appellant=s brief fails to cite any relevant authority on this issue. Therefore, he has waived this complaint.

In any event, even if this complaint were not waived, appellant could not receive the relief he seeks. We have extensively researched the issue, and, although we have found little relevant case law, it is clear that when a trial court instructs the jury to disregard reference to other indictments, the error is cured. See Carpenter v. State, 596 S.W.2d 115, 124 (Tex. Crim. App.1980) (en banc) (op. on reh=g); Herrera v. State, 111 Tex. Crim. 644, 13 S.W.2d 831, 832 (1929). Compare Stevens v. State, 94 Tex. Crim. 375, 251 S.W. 505, 505 (1923) (reversing and remanding after wrong indictment was read when there was no curative instruction from the trial court). Therefore, appellant=s second issue is without merit and is overruled.

We affirm the trial court=s judgment.

/s/ Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed March 29, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

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