Leroy Mitchell v. The State of Texas--Appeal from 331st District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-93-00424-CR
Leroy Mitchell, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 0924598, HONORABLE BOB PERKINS, JUDGE PRESIDING

PER CURIAM

 

On July 4, 1992, when he was sixteen years old, appellant shot and killed Alvin Bronson, III, in the course of a robbery. After a jury found appellant guilty of capital murder, the district court assessed punishment at imprisonment for life. Act of April 16, 1985, 69th Leg., R.S., ch. 44, 1, 1985 Tex. Gen. Laws 434 (Tex. Penal Code Ann. 19.03(a)(2), since amended); see Tex. Penal Code Ann. 8.07(d) (West 1994).

In his first point of error, appellant contends the district court erred by overruling his motion for mistrial based on alleged improper jury argument by the prosecutor. The prosecutor argued:

 

The last thing, and I'll close with this. In trying to figure out how to convince you that this is capital murder, it's difficult. And the hardest thing is to face family in these cases, because their trust is in you. One of the things that was said early on is that this was going to be the most important day in Leroy Mitchell's life. Well, at least he's got a life. But there's a family out there, and there's law enforcement, and there's the rest of the town. What about the rest of us?

 

Appellant objected that this argument "is totally improper as to what the community or the law enforcement or the family expects." The court sustained the objection and instructed the jury to disregard the prosecutor's statement, but denied appellant's motion for mistrial.

The accused is entitled to have his guilt or punishment determined on the basis of the evidence and without reference to any outside influence. Cortez v. State, 683 S.W.2d 419, 420 (Tex. Crim. App. 1984). An argument designed to induce the jury to convict or assess a particular punishment based on community sentiment has long been held to be improper. Id.; Goff v. State, 794 S.W.2d 126 (Tex. App.--Austin 1990, pet. ref'd). Appellant urges that the prosecutor was asking the jury to convict him of capital murder because the victim's family, law enforcement, and the community at large demanded it.

In its response to this point of error, the State points out that the prosecutor did not expressly state that the persons mentioned "wanted," "desired," "required," or "expected" a capital murder conviction and urges that the argument was a proper plea for law enforcement. See Borjan v. State, 787 S.W.2d 53, 56-58 (Tex. Crim. App. 1990) (prosecutor was arguing for law enforcement when he asked jury to "think of the victims of these crimes" and of "the ones who never come and tell you about it" when it assessed punishment for sexual assault of child); Harris v. State, 784 S.W.2d 5, 11-13 (Tex. Crim. App. 1989) (prosecutor did not err

 

by arguing that family, police, and people of county knew that there was only one proper verdict in case); Motley v. State, 773 S.W.2d 283, 292-94 (Tex. Crim. App. 1989) (prosecutor did not call for verdict based on community sentiment when he told jury it represented community and that community was depending on it to answer capital punishment issues honestly). Assuming, however, that the prosecutor's argument was improper, we are satisfied that it was not so prejudicial to appellant as to be incurable by the court's instruction to disregard. Chandler v. State, 689 S.W.2d 332, 335 (Tex. App.--Fort Worth 1985, pet. ref'd). Because the instruction was sufficient to cure any error, the motion for mistrial was properly overruled. Point of error one is overruled.

In point of error two, appellant contends the court erred by refusing to instruct the jury to disregard a portion of the prosecutor's argument that was addressed directly to appellant:

 

[By the prosecutor:] Mr. Mitchell, you just didn't kill a cab driver.

 

MS. ICENHAUER-RAMIREZ [defense counsel]: Your Honor, I object to that. He's not supposed to address anything directly to this defendant. And he knows that. He's supposed to be arguing to the jury.

 

THE COURT: Approach the bench, please.

 

(Discussion at the bench.)

 

THE COURT: I'll sustain the objection.

 

MS. ICENHAUER-RAMIREZ: Could I have an instruction to disregard?

 

THE COURT: I don't think an instruction is necessary either, according to your analysis.

 

MS. ICENHAUER-RAMIREZ: If you sustained it I need to ask for an instruction.

 

THE COURT: Your objection is only to have him not do that, correct? You're not asking to disregard?

 

MS. ICENHAUER-RAMIREZ: I would like the jury to be instructed to disregard Mr. Garcia's actions in directly addressing the defendant.

 

MR. GARCIA [prosecutor]: I'm going to refrain from doing it only out of caution for the record, but I feel, I think that it's certainly permissible to do what I was doing. But I will change just out of caution.

 

THE COURT: I'll overrule the objection.

 

MR. GARCIA: Mr. Mitchell, you know, he just didn't kill a cab driver. He killed a son, he killed a brother, and he killed a friend. He robbed him and basically for money. Is it worth it? He took a life. And he's earned a right to life. He's guilty of capital murder. Thank you.

 

Appellant argues that the prosecutor exceeded the bounds of proper jury argument by directing his remark to appellant and that the district court, having sustained appellant's objection, reversibly erred by refusing to instruct the jury to disregard the remark.

The latter portion of appellant's argument is not supported by the record. Although the court first stated that appellant's objection to the prosecutor's argument was sustained, it changed its ruling and overruled the objection after further discussion. This is not a case in which the trial court refused to instruct the jury to disregard jury argument to which an objection had been successfully urged.

This point of error, like the objection at trial, does not complain of the substance of the prosecutor's remark but only of his addressing the remark to appellant rather than to the jury. The case on which appellant relies, Bird v. State, 527 S.W.2d 891 (Tex. Crim. App. 1975), is distinguishable. In Bird, it was held that the prosecutor commented on the defendant's failure to testify when he attempted to question the defendant during argument. Nothing of the sort occurred in the cause before us.

After agreeing to direct his argument only to the jury, the prosecutor repeated and elaborated on his statement that the murder victim was not "just . . . a cab driver." Appellant voiced no further objection to this portion of the prosecutor's argument, which was supported by the evidence. Assuming that the prosecutor should not have addressed appellant directly during his argument and that the district court should have instructed the jury to disregard the statement in question, we are satisfied that the error was harmless. Two persons were in the cab with appellant when he shot the driver, both of whom testified for the State. Other witnesses testified that appellant, a few hours after the murder, described shooting and robbing a cab driver. Appellant had a friend take pictures of him holding the stolen money and the murder weapon, and these photographs were introduced in evidence. We conclude beyond a reasonable doubt that the error complained of in this point of error did not contribute to the jury's verdict. Tex. R. App. P. 81(b)(2); Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). Point of error two is overruled.

Finally, appellant contends the district court erred by permitting the parties to enter into an oral stipulation. He argues that all stipulations must be in writing. Tex. Code Crim. Proc. Ann. art. 1.15 (West Supp. 1994). Article 1.15 specifies procedures to be followed in felony cases in which a jury has been waived and trial is before the court. Messer v. State, 729 S.W.2d 694, 699 (Tex. Crim. App. 1986) (opinion on motion for rehearing). In cases in which a plea of not guilty is entered before a jury, stipulations do not have to comply with article 1.15. Id. Point of error three is overruled.

The judgment of conviction is affirmed.

 

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: February 8, 1995

Do Not Publish