Reginald Browner v. The State of Texas--Appeal from 202nd District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00121-CR

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REGINALD BROWNER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 03F0135-202

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Reginald Browner pled "not guilty" to the charge of possessing a "shank" at the Telford Unit of the Texas Department of Criminal Justice (TDCJ) in New Boston and submitted the case to a jury. See Tex. Pen. Code Ann. 46.10 (Vernon 2003). After a short trial and fifteen minutes of deliberation, the jury found Browner guilty as charged in the indictment. The trial court subsequently sentenced Browner to fifteen years' imprisonment, in accordance with the jury's punishment recommendation. Browner timely appealed the trial court's judgment.

On February 24, 2005, Browner's appellate counsel filed an Anders // brief in which counsel professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal and, as required by Anders, also filed a motion to withdraw. Counsel also sent Browner a copy of the appellate brief and informed Browner of his right to review the record and to file a response pro se. Counsel also took the commendable step of sending Browner a complete copy of the appellate record in this case.

We informed Browner on March 1, 2005, that his response, if any, was due to be filed by March 31, 2005. As of this date, we have not received a responsive pro se brief. Nor has the State filed an independent evaluation of the case. See Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon 2005).

We have independently reviewed the record and the brief filed by counsel in this appeal, and we agree there are no arguable issues that would support an appeal in this case. Accordingly, we affirm the trial court's judgment.

I. Factual and Legal Sufficiency To Support a Finding of Guilt on the Lesser Offense

We first note that the evidence is sufficient to support Browner's conviction for possession of a deadly weapon in a penal institution. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a factual sufficiency review, we view all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

As defined by statute, the elements of the alleged offense are (1) intentionally, knowingly, or recklessly; (2) carrying about one's person or possessing or concealing; (3) a deadly weapon; (4) in a penal institution. Tex. Pen. Code Ann. 46.10(a). Our law defines the term "deadly weapon" as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. 1.07(a)(17)(B) (Vernon Supp. 2004 2005). This offense is a third degree felony. Tex. Pen. Code Ann. 46.10(d).

Lieutenant Steven Fahrquar, // a seven-year employee of the TDCJ, testified in this case. On September 15, 2002, Fahrquar had been assigned to supervise the showering of inmates. According to Fahrquar's testimony, inmates who are classified as T-5 offenders must be strip searched before being allowed to shower. On this date, Fahrquar asked Browner if he wanted to take a shower, and Browner said, "Yes." Fahrquar then instructed Browner to remove his clothing and give it to Fahrquar for inspection. Browner complied, except he did not remove his underwear. When Fahrquar asked Browner to remove his underwear, Fahrquar saw Browner remove what Fahrquar described as a "homemade stabbing device." // Browner placed the item on the table in his cell. Fahrquar instructed Browner to step to the door, place his hands through the food service slot to allow Fahrquar to apply the handcuffs, and Browner complied. Once Browner and his cell had been secured, Fahrquar entered the cell and seized the device, which was then admitted at trial.

Ronald Stafford also testified for the State. Stafford works for the office of the Inspector General, which is part of the TDCJ. Stafford was assigned to the Telford Unit on September 16, 2002, and retrieved the weapon in question from Browner's cell. Stafford testified that the "shank" found in Browner's cell was a deadly weapon because "by its design it could be used to cause serious bodily injury or actually kill someone." Stafford also told the jury that, during his career with the TDCJ, he has seen someone who was killed or seriously injured with a weapon similar to the one at issue in this case.

Viewing the evidence in the light most favorable to the prosecution, there is evidence to support the jury's finding that the prosecution met its burden of proof for each legal element of the charged offense. Browner had possession of a shank, the possession occurred in his cell at the Telford Unit (a division of the TDCJ), and the weapon in question was capable of causing serious bodily injury or death. We also believe the jury's finding of guilt is not irrational, against the great weight of the evidence, or manifestly unjust. See Zuniga, 144 S.W.3d at 482, 484 85. Accordingly, we hold the evidence is legally and factually sufficient to support the trial court's judgment of conviction.

II. Jury Charge on Reasonable Doubt

At the conference on the jury charge for guilt/innocence, Browner requested the trial court to instruct the jury on a definition of "reasonable doubt," using a definition from In re Winship, 397 U.S. 358 (1970). The trial court denied the requested instruction. The Texas Court of Criminal Appeals has expressly stated that "the better practice is to give no definition of reasonable doubt at all to the jury." Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (overruling Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991)). Winship did not mandate that trial courts define the term "reasonable doubt," nor does our jurisprudence require such. The trial court properly overruled Browner's requested jury instruction.

III. Punishment

We next turn to whether any reversible error arose during the punishment trial. After finding that Browner had been previously and finally convicted of a felony offense, the trial court instructed the jury to assess Browner's punishment within the range provided for a second degree felony. The punishment range for a second degree felony is imprisonment for not less than two years nor more than twenty years. Tex. Pen. Code Ann. 12.33 (Vernon 2003). The punishment range for Browner's offense was increased from a third degree felony to a second degree felony because Browner pled "true" to having been previously convicted of a felony offense. See Tex. Pen. Code Ann. 12.42(a)(3) (Vernon Supp. 2004 2005); Graham v. State, 546 S.W.2d 605, 608 (Tex. Crim. App. 1977) (plea of "true" to enhancement paragraph provides sufficient evidence to support enhanced sentence). The evidence is, therefore, sufficient to support Browner being sentenced within the range provided for second degree felonies.

The jury also heard testimony that prison officials had confiscated documents from Browner that possibly linked him to gang activity (specifically the "Crips" gang) when he entered prison. Evidence of gang activity is admissible during the punishment phase of a trial as relevant character evidence. See Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2004 2005) (evidence of any matter court deems relevant admissible, including accused's character); Stewart v. State, 995 S.W.2d 251 (Tex. App. Houston [14th Dist.] 1999, no pet.).

While being cross-examined about several documents found in Browner's possession, Frank Warner (a sergeant with the TDCJ at the Telford Unit) and Browner's counsel, the following exchange took place before the jury:

QIs that Reginald Browner's art work?

AYes. It was confiscated from his property.

QDid he draw that?

AI don't know if he drew it or not, sir. It was found in his property.

QDid he draw that [pointing to another document]?

AI don't know, sir.

Q Is this garbage his handwriting?

A Yes, it is.

Q Are you a handwriting examiner?

A No, I'm not.

Q Is that his handwriting? Is that his cursive?

A As I stated --

Q Is that a yes or no, sir?

A -- the property was confiscated.

Q Is that a yes or no? Is that his handwriting?

A If you continue to go through the pile, sir --

QAnd I'm going to continue to go through the pile. Is that his handwriting?

A-- you will find a letter that he wrote and you can compare the handwriting for yourself.

QIs this his handwriting?

AI have no idea, sir.

. . . .

QIs that his handwriting?

APersonally, I have no knowledge of his handwriting. If you ask him [Browner], he may be able to identify it.

(Emphasis added.) Counsel immediately objected to Warner's testimony as "a comment on [Browner's] Fifth Amendment right" to not testify. The trial court immediately sustained the objection and sua sponte instructed the jury to disregard Warner's last statement; the trial court further instructed the jury to not assume Browner had any obligation to testify. The trial court subsequently overruled Browner's request for a mistrial.

When a trial court sustains an objection to a comment on a defendant's failure to testify and instructs the jury that it is to disregard the inappropriate comment, but the court then refuses to grant a mistrial, the issue on appellate review is whether the trial court erred by denying the motion for mistrial. Dotson v. State, 146 S.W.3d 285, 298 (Tex. App. Fort Worth 2004, pet. ref'd). The resolution of whether the trial court erred hinges "on whether the court's instruction to disregard cured the prejudicial effect, if any," caused by the improper comment. Id. Generally, an instruction to disregard cures any prejudicial effect. Id. Given the trial court's swift response in this case, its explicit and immediate instruction to disregard the witness' improper comment, and the court's subsequent written instruction in its jury charge that the jury should not (and could not) hold Browner's failure to testify against him, we believe the trial court's actions cured the error in Warner's testimony.

The jury in this case assessed punishment at fifteen years, which was within the range provided by statute based on Browner's judicial confession of having been previously convicted of a felony offense. The evidence of Browner's possible gang affiliation was properly admitted. And the trial court cured any prejudicial effect of Warner's improper comment on Browner's failure to testify by issuing a prompt instruction to the jury to disregard. Nothing else in the record before us suggests an arguable error occurred during the punishment trial. //

IV. Conclusion

Because our independent review of the record reveals no reversible error at guilt/innocence or punishment, we affirm the trial court's judgment.

Donald R. Ross

Justice

Date Submitted: May 10, 2005

Date Decided: July 11, 2005

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