David Luke v. The State of Texas--Appeal from 178th District Court of Harris County

Opinion issued September 27, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-01182-CR

DAVID LUKE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 906358

MEMORANDUM OPINION

Appellant, David Luke, appeals from a judgment convicting him for possession with intent to deliver more than 400 grams of cocaine. See Tex. Health and Safety Code Ann. 481.112(a), (f) (Vernon 2003). Appellant pleaded not guilty. The jury found appellant guilty and the trial court assessed punishment at 25 years in prison. In two issues, appellant contends the trial court erred by failing to grant a mistrial due to the State's improper closing argument that commented on appellant's failure to testify and by denying appellant's motion for continuance. We conclude that the trial court did not err by denying appellant's motion for mistrial because the trial court's instruction to the jury to disregard the improper portion of the closing argument sufficiently cured any prejudicial effect. We also conclude that the trial court did not abuse its discretion by denying appellant's motion for continuance because appellant failed to show specific prejudice from the denial. We affirm the judgment of the trial court.

Background

In response to a report of suspicious behavior from guests at a hotel, Detective Frank Fulbright of the Harris County Sheriff's Department was directed to a room registered to Shon Hamilton, whom he discovered had a Georgia driver's license. Detective Fulbright observed that two cars bearing Georgia license plates, a Cadillac and an Expedition, were parked side by side in the hotel parking lot.

The detective, as well as other surveillance officers who had joined him, watched appellant and Jesse Freeman get into the Expedition, while Hamilton got into the Cadillac. They then drove to a house where, upon arriving, the three men entered together. The surveillance officers saw Hamilton come out of the house and retrieve a black leather bag from the Cadillac that he carried back into the house. When the three men walked out of the house, surveillance officers saw Freeman place the black bag into the Cadillac. The surveillance officers saw appellant reach in the Cadillac and grab the black bag, which appellant then handed to Hamilton. Hamilton put the bag in the Expedition and drove away. Appellant and Freeman left in the Cadillac.

Police officers stopped the Expedition and Cadillac when the vehicles made a turn without signaling. Appellant consented to a search of the Cadillac. Officers found no contraband in the Cadillac. Hamilton, however, did not consent to a search of the Expedition, so the officers called for a canine unit. A dog trained to detect the scent of illegal narcotics alerted the officers to the presence of narcotics in the car. Upon searching the Expedition, the officers found the black bag, filled with 1.6 kilograms of cocaine. Appellant, Freeman, and Hamilton were each charged with possession with intent to deliver a controlled substance.

Comment on Failure to Testify

In his first issue, appellant asserts that the trial court erred by denying his motion for mistrial because the State improperly commented on his failure to testify.

The State may not comment on a defendant's failure to testify. U.S. Const. amend. V; Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005); Canales v. State, 98 S.W.3d 690, 695 (Tex. Crim. App. 2003). A comment is improper when "the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). "[T]he offending language must be viewed from the jury's standpoint, and the implication that the comment referred to the defendant's failure to testify must be clear." Id. The possibility that the comment may "be construed as an implied or indirect allusion" is not sufficient to constitute a violation. Id. However, if the comment draws the jury's attention to the absence of evidence that could only be provided by testimony from the defendant, the comment must be found improper. Myers v. State, 573 S.W.2d 19, 21 (Tex. Crim. App. 1978); McMullin v. State, No. 14-05-01243-CR, 2006 WL 3797760, at *3 (Tex. App.--Houston [14th Dist.], Dec. 28, 2006, pet. ref'd). In applying this test, the context in which the comment was made must be carefully considered. Bustamante, 48 S.W.3d at 765.

During its closing argument, the State's attorney said,

Now, before I sit down, I want to ask you one question. I want you to think about this question. There has been no evidence, none, to answer this question. Why were these two in Houston? That has not been answered and they cannot answer it. Thank you.

Immediately afterwards, the trial counselors for both appellant and his co-defendant objected on the grounds that the State's arguments shifted the burden of proof to the defense and were "a direct comment on the defendants not testifying in this case." The trial court sustained these objections, and instructed the jury to disregard the prosecutor's comment. Trial counselors then each made a motion for mistrial based on the comment, both of which were denied.

The State's comment referring to the failure of appellant and Freeman to answer why they were in Houston is an improper comment on their failure to testify at the trial. See Myers, 573 S.W.2d at 20-21 (holding that State's argument that there had been no explanation why a man would have 269 pounds of marijuana was comment on defendant's failure to testify because defendant was only one who could offer explanation). Although the comment was indirect, it would necessarily and naturally be construed by the jury as a reference to appellant's failure to testify. See Bustamante, 48 S.W.3d at 765. The trial court, therefore, properly sustained appellant's objection and properly instructed the jury to disregard the comment.

Our task is to determine whether the trial court erred in denying the mistrial. We review a trial court's denial of a motion for mistrial for abuse of discretion. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). If the instruction given by the trial court to the jury cured any prejudicial effect caused by the improper argument, a reviewing court should find that the trial court did not err in denying the motion for mistrial. Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.--Fort Worth 1997, pet. ref'd).

We presume the jury obeyed the trial court's instruction to disregard improper evidence. Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim. App. 1988) . Therefore, an instruction to disregard generally cures the prejudice caused by an improper comment. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). In rare cases, however, an instruction to disregard cannot cure the prejudice, such as where the facts show the comment was "clearly calculated to inflame the minds of the jury and [was] of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury." Richards v. State, 912 S.W.2d 374, 378 (Tex. App.--Houston [14th Dist.] 1995, pet. ref'd). A comment that is so inflammatory that an instruction to disregard cannot cure its prejudicial effect must be extreme or manifestly improper, inject new and harmful facts into the case, or violate a mandatory statutory provision. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991) (quoting Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991)).

The prosecutor's comment in the present case, although improper, did not directly refer to appellant's failure to testify, nor did it add new and harmful facts into the case. Although the State's comment violates the mandatory language of Article 38.08, such violations have been specifically determined to be curable through an instruction to disregard. See Tex. Code Crim. Proc. Ann. art. 38.08; Waldo, 746 S.W.2d at 753.

The trial court immediately instructed the jury to disregard the comment and also instructed the jury in its written instruction that it was not to consider appellant's failure to testify. (1) The impression potentially produced in the minds of the jurors by the prosecution's comment was withdrawn by these jury instructions.

We conclude that the State's comment, while improper, was not so blatant and inflammatory that it rendered the instruction to disregard ineffective. See Long, 823 S.W.2d at 267. We hold that the trial court properly denied appellant's motion for mistrial because the trial court's instruction to disregard the comment adequately cured any prejudicial effect caused by the improper statement. See id.

We overrule appellant's first issue.

Motion for Continuance

In appellant's second issue, he contends that the trial court erred by denying his motion for continuance to allow more time for an absent witness to arrive in court. Specifically, he asserts that the absent witness, Corey Riggins, would have provided material evidence essential to appellant's defense, and that appellant was therefore prejudiced by the trial court's denial of his motion. (2)

We review a trial court's ruling to grant or deny a motion for continuance for abuse of discretion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). An abuse of discretion is established if the defendant can show that he was actually prejudiced by the denial of his motion. Id.

Appellant states that Corey Riggins, the uncle of appellant's daughter, would have testified that appellant was on his way to pick up his daughter in Killeen, Texas at the time of his arrest, which would explain appellant's presence in Texas and thus is material to appellant's defense. The trial court, however, found this information to be immaterial because Corey Riggins did not have personal knowledge that appellant was on his way to Killeen to pick up the child and therefore any testimony from him to that effect would have been inadmissible hearsay. Additionally, Jessica Riggins, appellant's girlfriend and Corey Riggins's sister, was present at trial and testified that appellant was on his way to Texas to pick up their daughter from her brother's house in Killeen, Texas. Appellant cannot show that he was actually prejudiced by the denial of the continuance to allow more time for Corey Riggins to arrive because Jessica Riggins's testimony provided the same explanation of appellant's presence in Texas that Corey Riggins would have provided. See Vasquez, 67 S.W.3d at 240-41.

Appellant has thus failed to establish that he was prejudiced by the trial court's discretionary ruling. Id. We therefore conclude that the trial court did not abuse its discretion in denying appellant's motion for continuance. See Tucker v. State, 109 S.W.3d 517, 521 (Tex. App.--Tyler 1999, pet. ref'd).

Appellant's second issue is overruled.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

1. Here, the curative effect of the instruction to disregard the State's improper comment was bolstered by the trial court's jury charge, which stated:

Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a right accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him.

In this case, the defendant has elected not to testify and you are instructed that you cannot and must not refer to or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against him.

2. Corey Riggins had appeared in court on December 6, 2005 prepared to offer his testimony, but the court adjourned before he had the opportunity to do so. He was sworn to return to court to testify on December 12, 2005 but was unable to arrive on time due to car trouble. He fixed his car that morning and would have been able to arrive by late afternoon, so appellant and his co-defendant made several oral motions for a continuance to allow an additional four hours for him to arrive. The judge denied each of these motions, and later denied a written motion to the same effect.