Green v. State

• Court: Texas Court of Appeals
• Writing for the Court: Rebecca Simmons
• Decision Date: 05 December 2013
• Docket Number: NO. 14-12-00601-CR,14-12-00601-CR
• Citation: Green v. State, NO. 14-12-00601-CR (Tex. App. Dec 05, 2013)
• Parties: ANTHONY DEWAYNE GREEN, Appellant v. THE STATE OF TEXAS, Appellee

ANTHONY DEWAYNE GREEN, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-12-00601-CR

State of Texas in the Fourteenth Court of Appeals

Filed: December 5, 2013

Affirmed and Memorandum Opinion filed December 5, 2013.

On Appeal from the 78th District Court

Wichita County, Texas

Trial Court Cause No. 49480-B

MEMORANDUM OPINION

Appellant Anthony DeWayne Green appeals his conviction for aggravated robbery, asserting that the trial court abused its discretion by denying his motion for mistrial, by not instructing the jury on his involuntary statements to investigators, by admitting his in-court identification, and in admitting certain evidence at trial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Green was charged by indictment with two counts of aggravated robbery and one count of aggravated assault. The indictment also contained an enhancement paragraph, alleging a prior conviction. Green pleaded "not guilty" to the charged counts.

At trial, Alex Barnes testified that he was in a parking lot of an apartment complex when a gold vehicle drove up with four individuals inside. The driver of the vehicle accused Barnes of damaging the gold vehicle by "spitting rocks" several days before as Barnes drove from a store parking lot in an attempt to race another vehicle. Barnes denied intentionally damaging any vehicle but the driver pointed a gun at him and then drove away. Barnes notified law enforcement officers of the incident.

Cynthia Torres was outside her apartment the evening of the incident and observed the confrontation between the driver of the gold vehicle and Barnes. Later in the evening, she was inside an apartment with others when a black male with a black handgun entered the apartment and shot two people, Ronald Paschal and C.B., a fourteen year old boy. The gunman, who was accompanied by at least one other person, demanded money and took the teenager's shoes before fleeing. Responding officers on the scene learned from Torres that the gunman was the driver of the gold vehicle that was involved in the incident with Barnes earlier in the evening. Barnes and Torres provided descriptions of the gold vehicle and the gunman to the officers. Others also provided descriptions of the gunman to the officers.

Law enforcement officers pursued and stopped a vehicle matching the descriptions provided and took two black males into custody. Officers observed a pair of shoes with blood on them in the backseat of the vehicle; the shoes matchedthe description of the shoes taken from the apartment. Green, the driver, waived his statutory and constitutional rights and gave a statement to officers. After the interview, officers collected Green's clothing as potential evidence. The clothing and shoes tested positive for the presence of blood from each of the people shot in the apartment.

Officers compiled photographic lineups, some of which included Green's photograph. Torres was unable to identify anyone from three different photographic line-ups presented on the night of the shooting. Two days later, she identified Green as the gunman from a fourth photographic line-up. Although Barnes did not identify any person matching the gunman's description in an initial photographic line-up on the night of the incident, Barnes later identified Green as the driver in a second photographic lineup two days later. After these identifications were made, officers arrested Green.

At trial, both Barnes and Torres identified Green in court as the gunman they encountered. A female co-defendant, who was with Green during both incidents, testified, and the apartment occupants and other witnesses testified and described the gunman. Green's clothing was admitted into evidence.

The jury found Green guilty as charged. Green pleaded "true" to the enhancement provision. He was sentenced to a life of confinement on each of the aggravated robbery counts and sixty years' confinement for the aggravated assault count; the sentences were to be served concurrently. Green now appeals his conviction.¹

ISSUES AND ANALYSIS

A. Did the trial court err in denying Green's motion for mistrial?

In his first issue, Green asserts that the trial court abused its discretion in denying Green's motion for mistrial. Green based his motion for mistrial on the trial court's admonishments to the jury concerning counsels' objections. During trial defense counsel began to object to the admission of certain evidence when the prosecutor asked for the jury to be removed from the courtroom if defense counsel was going to make some "long winded" objection. Before dismissing the jury, defense counsel objected to the prosecutor's side bar remark "long winded" and requested the court to instruct the jury to disregard the remark. The trial court instructed the jury to disregard the remark "regarding long-winded." While the jury was still in the courtroom, the prosecutor continued to object to defense counsel continually making speaking objections. The prosecutor noted that objections must be promptly made and that defense counsel's speaking objections were against local court rules and the rules of evidence. The jury exited the courtroom, and Green moved for mistrial based on the State's attempt to prejudice the jury against Green by implying his counsel was making improper objections. The trial court overruled the motion.

The jury returned to the courtroom, and, at a later bench conference, Green renewed his motion for mistrial, which the trial court overruled. The trial judge indicated that he would admonish the jury "as previously indicated." The trial court then admonished the jury and instructed them to ignore the parties' earlier comments and conversations, likening the adversarial proceedings to an arm-wrestling match. The trial judge instructed the jurors: "So with regard to the type of objections that are being made by [defense counsel], just let that pass by." Green did not object to this admonishment at the time, and the trial continued.

Later during trial, outside of the jury's presence, Green's counsel referred to the judge's previous admonishment and argued that the jury could have construed the remark to mean that defense counsel's objections would be ignored. The trial court stated for the record that he intended to instruct the jury to ignore remarks made about objections. The trial court offered to correct any misimpression and proposed an admonishment, to which counsel was amenable. When the jury returned, the trial court informed the jury of the parties' entitlement to the unlimited right to make objections to protect their clients' interest and that such matters were just between the trial court and attorneys. The trial judge instructed the jury to form no opinions regarding the form of the parties' objections and he was not upset with either party and had no intention of showing favor to one party or another with respect to objections beyond ruling on an objection. Not satisfied, Green moved for mistrial which the trial court denied.

1. Standard of Review

We review a trial court's denial of a motion for mistrial for an abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). A mistrial is an extreme remedy for conduct that is so prejudicial that expenditure of further time and expense would be futile. Id. at 77. Only in dire circumstances, where the prejudice is incurable, will a mistrial be required. Id. In most cases, an instruction to disregard will cure the prejudicial effect. Wesbrook v. State, 29 S.W.3d 103, 115-16 (Tex. Crim. App. 2000); Wilson v. State, 7 S.W.3d 136, 148 (Tex. Crim. App. 1999) (providing that when an argument is not particularly egregious, a trial court's instruction to disregard will usually cure the error).

Article 38.05 of the Texas Code of Criminal Procedure provides:

In ruling on the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, butshall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.

Tex. Code Crim. Proc. Ann. Art. 38.05 (West 1979) (emphasis added). A trial judge must refrain from making any remarks calculated to convey an opinion of the case to the jury so that jurors do not interpret the trial judge's conduct or language as offering a perspective of the merits or the issues involved. See Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003).

To constitute reversible error, a comment must have been reasonably calculated to benefit the State or prejudice the rights of the defendant. See Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986). To determine whether a comment is either reasonably calculated to benefit the State or prejudice the defendant, we first determine whether the trial judge's statement was material to the case. Burge v. State, 443 S.W.2d 720, 724 (Tex. Crim. App. 1969); Fletcher v. State, 960 S.W.2d 694, 701 (Tex. App.—Tyler 1997, no pet.); Clark v. State, 878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.). We consider whether the statement (1) implies approval of the State's argument, (2) indicates any disbelief in the defense's position, or (3) diminishes the credibility of the defense's approach to the case. Fletcher, 960 S.W.2d at 701;Clark, 878 S.W.2d at 226. Generally, an instruction by the trial judge to disregard any of the judge's comments is sufficient to cure any error. See Marks v. State, 617 S.W.2d 250, 252 (Tex. Crim. App. 1981); Fletcher, 960 S.W.2d at 701. We consider the consequences that probably resulted from the trial court's comments to determine whether the comments prejudiced Green's rights. Clark, 878 S.W.2d at 226.

2. Analysis

Green's argument for mistrial focuses on the trial judge's admonishment to jurors to "just let that pass by." He characterizes the remark as prejudicial andbiased the jury against Green and his counsel by...