Julius Archie v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00153-CR

Julius Archie,

Appellant

v.

The State of Texas,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2003-1082-C

Opinion

A jury convicted Julius Archie of family violence assault (a felony) and misdemeanor assault. The jury assessed his punishment at ten years in prison for the felony and one year in jail for the misdemeanor. Archie contends in two issues that: (1) he was punished twice for the same offense in violation of the prohibition against double jeopardy; and (2) the court abused its discretion by denying his motion for mistrial during the punishment phase when a prosecutor commented on his failure to testify. We will affirm the convictions, reverse the punishment, and remand for a new punishment hearing.

Background

The indictment contains three counts charging Archie with: (1) aggravated assault; (2) family violence assault elevated to a felony by a prior family violence assault; and (3) unlawful restraint. Gina Columbus is the complainant in all three counts, which were all alleged to have occurred on the same date.

Viewed in a light most favorable to the verdict, the evidence reflects that Columbus picked Archie up at the county fair and drove him home. Columbus waited in the car while Archie went inside to change clothes. When Archie returned to the car, he began talking with her about a man she had previously dated. Archie was agitated. He hit Columbus in the head with enough force to cause her head to hit the driver s side window. The impact left her head cut and bleeding.

Archie changed places with Columbus and began driving. Columbus began to feel dizzy. Archie drove to Columbus s house and tried to clean her up. He refused to allow her to leave. He struck her repeatedly, grabbed her by the hair, and tried to choke her with his arm. He also tried to choke her with various objects including a bed sheet and a cable cord. He tied her hands and feet behind her back, rolled her up in some foam, stuffed a teddy bear in her mouth, put a sheet over her head, and left the house. He later returned to argue some more with her.

Archie testified in his own defense. He insisted that the injuries Columbus sustained in the car were accidental. He agreed that they fought in her house but denied the allegations that he had choked her or restrained her in any manner.

The court charged the jury on the lesser-included offense of misdemeanor assault as an alternative to the aggravated assault charge. The jury convicted Archie of the lesser-included assault charge, convicted him of family violence assault as charged, and acquitted him of unlawful restraint.

During punishment, the State called a former girlfriend of Archie s, Bria Alexander, and his current girlfriend, Desiree Briscoe, to testify. Alexander testified that Archie became violent during their relationship, choked her, and pulled her hair on many occasions. She also testified that he tied her up once with a telephone cord, put her in a closet, and put a blanket on top of her.

Briscoe testified that Archie is not violent although they have gotten in arguments on occasion. She denied that he has ever choked her, but she did recall one occasion when he held her against the wall.

Archie called a former girlfriend, Brandy Dunlap, who testified that she had dated him for more than five years and he had never been violent toward her. Archie also called his father who testified that he would encourage Archie to participate in anger management counseling if he received community supervision.

The jury assessed Archie s punishment as indicated above.

Double Jeopardy

Archie contends in his first issue that court abused its discretion by failing to require the State to elect which of the two assault counts it would proceed on, which resulted in his being punished twice for the same offense.

An election is required when an indictment alleges the commission of a single offense but the State offers evidence at trial that the accused committed the offense alleged more than once. Moore v. State, 143 S.W.3d 305, 312 (Tex. App. Waco 2004, pet. ref d) (citing Scoggan v. State, 799 S.W.2d 679, 680 n.3 (Tex. Crim. App. 1990); Brantley v. State, 48 S.W.3d 318, 322 n.1 (Tex. App. Waco 2001, pet. ref d)).

The Double Jeopardy Clause of the Fifth Amendment[1] prohibits the State from punishing a defendant twice for the same crime. See Sattazahn v. Pa., 537 U.S. 101, 106, 123 S. Ct. 732, 736, 154 L. Ed. 2d 588 (2003); Lopez v. State, 108 S.W.3d 293, 295-96 (Tex. Crim. App. 2003). However, this prohibition is not invoked when a defendant is convicted and punished for the repeated commission of the same offense on distinct occasions. See Campbell v. State, 149 S.W.3d 149, 155 (Tex. Crim. App. 2004); Patterson v. State, 96 S.W.3d 427, 432 (Tex. App. Austin 2002), aff d, 152 S.W.3d 88 (Tex. Crim. App. 2004).

Here, the indictment alleges and the evidence shows two separate assaults: (1) the assault in the car; and (2) the assault in the house. Thus, the State was not required to make an election, and Archie was not punished twice for the same offense. See Patterson, 96 S.W.3d at 432.

Accordingly, we overrule Archie s first issue.

Motion For Mistrial

Archie contends in his second issue that the court abused its discretion by overruling his motion for mistrial after a prosecutor commented on his failure to testify in closing argument during the punishment phase.

After the punishment evidence was concluded, the court read the punishment charge to the jury. Among other things, the charge instructed the jury not to consider Archie s failure to testify for any purpose whatsoever.

The argument at issue follows:

PROSECUTOR: I think you have also learned he has no respect for women. You have heard from three women now. And two of them tell you, frighteningly, the same story; that things are okay in the beginning of a relationship and then things start to go downhill, and that he strangles them and he ties them up. That is his MO. That s what he does. You ve heard that now from two people. You heard no evidence to the contrary as to Bria Alexander, the second victim. You heard no denial. That was just accepted.

DEFENSE COUNSEL: Excuse me, Your Honor. I object to counsel s comment on the defendant s failure to testify by that comment, that you have heard no denial about that.

THE COURT: Instruct the jury that they will I sustain the objection and instruct the jury that they will follow the Court s instructions.

DEFENSE COUNSEL: Move for mistrial based on that.

THE COURT: Overruled.

The State does not seriously challenge Archie s assertion that the statement at issue was an erroneous comment on his failure to testify. Apparently, the trial court did not either as it promptly sustained Archie s objection. Therefore, we limit our inquiry to the issue of whether the court s instruction cured the prejudicial effect of the improper comment and, if not, whether this error harmed Archie.

To determine whether the court s instruction cured the prejudicial effect of the improper comment, [w]e balance three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed). Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

Here, the prosecutor directly commented on Archie s failure to testify. See Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996) (comment is direct when it refers to evidence which can come from only the defendant); Graff v. State, 65 S.W.3d 730, 737 (Tex. App. Waco 2001, pet. ref d) (same); Weyandt v. State, 35 S.W.3d 144, 157 (Tex. App. Houston [14th Dist.] 2000, no pet.) (same). The prejudicial effect of a direct comment may be more difficult to cure than that arising from an indirect comment. Montoya v. State, 744 S.W.2d 15, 37 (Tex. Crim. App. 1987); Roberson v. State, 100 S.W.3d 36, 42 (Tex. App. Waco 2002, pet. ref d); Barnum v. State, 7 S.W.3d 782, 795 (Tex. App. Amarillo 1999, pet. ref d). However, the prosecutor did not persist in pursuing this improper argument. See Roberson, 100 S.W.3d at 42 (considering persistence and flagrancy of prosecutor s conduct).

The court s instruction was very generic and did not direct the jury to disregard the improper argument. In fact, the court s instruction was even less definitive than another which we have found inadequate. See Veteto v. State, 8 S.W.3d 805, 811-12 (Tex. App. Waco 2000, pet. ref d) ( simplicity of the trial courts instructions [ you ll disregard ] when constitutional guarantees were at stake . . . did not effectively cure the prejudice ).

True, the court had not long before read to the jury the nineteen paragraphs of instructions contained in the punishment charge, and one paragraph of these instructions plainly prohibited the jury from considering Archie s failure to testify. However, the instructions in the punishment charge were not given in response to the prosecutor s improper argument. A more direct instruction would have been far more effective to cure the prejudicial effect of the improper argument. Cf. Brown v. State, 92 S.W.3d 655, 668-69 (Tex. App. Dallas 2002) (in similar situation, court specifically instructed jurors to disregard prosecutor s improper argument), aff d, 122 S.W.3d 794 (Tex. Crim. App. 2003).

With regard to the certainty of the punishment assessed absent the improper comment, we conclude that, due to the strength of the State s punishment case, it is likely that the same punishment would have been assessed regardless of the improper comment. See Hawkins, 135 S.W.3d at 85; Roberson, 100 S.W.3d at 42-43.

In summary, the prosecutor directly commented on Archie s failure to testify, and the court did not directly or effectively instruct the jury to disregard this improper comment. Because of the directness of the improper comment and the generic nature of the curative instruction, we hold that the instruction did not cure the prejudicial effect of the comment. We now determine whether this error requires reversal.

Because the prosecutor commented on Archie s failure to testify, the error is constitutional. Roberson, 100 S.W.3d at 43-44. Accordingly, the error requires reversal unless we determine[ ] beyond a reasonable doubt that the error did not contribute to the . . . punishment. Id. (quoting Tex. R. App. P. 44.2(a)). To assess harm, we consider:

the source and nature of the error;

the extent to which the State emphasized it;

the probable collateral implications of the error;

the weight a juror would probably place upon it, giving consideration to whether the record contains overwhelming evidence supporting the finding in question ; and

whether declaring the error harmless would encourage the State to repeat it with impunity.

Roberson, 100 S.W.3d at 44.

The prosecutor was the source of the improper comment, and her comment ignored one of the basic tenants of the Bill of Rights, the Fifth Amendment s prohibition against using the silence of an accused against him. See id. Because the prosecutor made the comment only once, she did not unduly emphasize the error.

The probable collateral implication to be drawn from the comment was that Alexander testified truthfully that her relationship with Archie turned violent over time. Id. at 45.

Due to the strength of the State s punishment evidence, we cannot say that the jury placed undue weight on the improper comment. Cf. id. (defendant had no prior criminal history and put on evidence that his family would assist him with rehabilitative services he could obtain on community supervision).

Finally, we examine whether declaring the improper denial of Archie s mistrial motion harmless will encourage the State to repeat its improper argument with impunity. We conclude that it will not. The improper comment here appears to have been an inadvertent one which was made under the unique circumstances of this particular trial. Cf. id.

In summary, the nature and source of the prosecutor s comment steer us toward a conclusion that the court s erroneous denial of Archie s motion for mistrial was harmful. The collateral implications of the improper argument support this conclusion as well because the jury was faced with conflicting testimony about whether Archie s relationships with women generally ended in violence. This is a critical issue for a jury to consider in determining what punishment Archie should receive for assaulting his girlfriend.

Although this is a close case, we cannot say beyond a reasonable doubt that the error did not contribute to Archie s punishment. See Tex. R. App. P. 44.2(a); Roberson, 100 S.W.3d at 45. Accordingly, we sustain Archie s second issue.

We affirm the judgment of conviction. We reverse that portion of the judgment assessing punishment and remand this cause to the trial court for further proceedings consistent with this opinion. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004 2005); Roberson, 100 S.W.3d at 45.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring and dissenting)[2]

(Justice Vance concurring and dissenting)[3]

Affirmed in part,

Reversed and remanded in part

Opinion delivered and filed November 2, 2005

Publish

[CR25]

[1] The Fifth Amendment provides in pertinent part, nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb. U.S. Const. Amd. V.

[2] Chief Justice Gray concurs in the affirmance of the judgment of conviction but dissents from the reversal of the judgment assessing punishment.

[3] Justice Vance dissents from the affirmance of the judgment of conviction but concurs in the reversal of the judgment assessing punishment.