Hawkins v. State
| Decision Date | 19 May 2004 |
| Docket Number | No. 571-03.,571-03. |
| Citation | 135 S.W.3d 72 |
| Parties | Daniel Dallas HAWKINS, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Betty Marshall, Assist. St. Atty., Matthew Paul, State's Attorney, Austin, for State.
Before the court en banc.
Appellant was convicted of possession of cocaine. He complained on appeal that the prosecutor made an improper comment regarding the application of parole law. The Court of Appeals agreed and reversed his conviction. In its petition for discretionary review, the State complains that the Court of Appeals conducted an improper harm analysis. We shall reverse.
During argument at the punishment phase, the following colloquy occurred:
In accordance with the law, the jury charge submitted the following instruction about parole:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignment, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-fourth of the sentence imposed. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
The Court of Appeals held that the prosecutor's argument was improper because it specifically applied parole law to the defendant on trial.2 It further held that the improper argument was not cured by the trial court's instruction to disregard because the argument violated a mandatory statute.3 In support of this holding, the Court of Appeals quoted from Cooks v. State:
Generally, improper jury argument may be cured by an instruction to disregard, unless "in light of the record as a whole it was extreme or manifestly improper, violative of a mandatory statute, or injected new facts harmful to the accused."4
The Court of Appeals then proceeded to conduct a harm analysis under Texas Rule of Appellate Procedure 44.2(b).5
In conducting its harm analysis, the Court of Appeals applied the three-factor test articulated in Mosley v. State, which balanced: (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct.6 The Court of Appeals found the conduct to be severe because it violated a mandatory statute and because it was not an isolated incident, but was a repeated reference to how the law of parole would be applied to appellant.7 The Court of Appeals stated that it could consider additional acts of misconduct in conducting the harm analysis, and it counted four sustained objections prior to the complained-of argument.8 The Court of Appeals stated that "[t]hese improper arguments resulted from arguments outside the record, and on how parole was applied to appellant in an earlier case."9 In addition, the Court of Appeals faulted the prosecutor for making, after the complained of argument, "yet another improper argument on a subject outside the record to which appellant objected and the trial judge instructed the jury to disregard."10 The Court of Appeals did not give any additional details about these five arguments, but all five are included in our discussion in part II.B.2 of this opinion.
The Court of Appeals characterized the measures taken to cure the misconduct as "nothing more than cursory."11 According to the Court of Appeals, the trial court simply said, "The jury is so instructed."12 The Court of Appeals characterized this instruction as "tepid" and of "limited curative effect," especially in light of the other improper arguments for which instructions to disregard were given.13 The Court of Appeals refused to give any weight to the prosecutor's apology regarding the error at issue in this case because: (1) it felt that "arguments of counsel cannot substitute for instructions by the court" and (2) it felt that considering the apology in the harm analysis "would have the effect of permitting a prosecutor to both create and cure error," which would "undermine any meaningful harm analysis" and "encourage prosecutors to repeat the error with impunity."14
Regarding the third Mosley factor, the Court of Appeals found the certainty of appellant receiving his eighteen-year sentence to be low without the improper argument because the amount of drugs was low and the sentence was high.15 In support of its assessment that the sentence was high, the Court of Appeals observed that the sentence was on the upper end of the two-to-twenty-year punishment range and the sentence would ordinarily have been a state jail felony—if it had not been enhanced by prior felony convictions.16 Concluding that harmful error occurred, the Court of Appeals affirmed the conviction, reversed and remanded for a new trial on punishment, and declined to address appellant's sixth point of error.17
Although the Court of Appeals and the parties have approached the issue as one of harm, that is not a correct characterization of the issue before us. A harm analysis is employed only when there is error, and ordinarily, error occurs only when the trial court makes a mistake.18 Here, the trial court sustained the defense objection and granted the requested instruction to disregard. The only adverse ruling—and thus the only occasion for making a mistake—was the trial court's denial of the motion for mistrial. Under those circumstances, the proper issue is whether the refusal to grant the mistrial was an abuse of discretion.19
Nevertheless, the question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis. A mistrial is the trial court's remedy for improper conduct that is "so prejudicial that expenditure of further time and expense would be wasteful and futile."20 In effect, the trial court conducts an appellate function: determining whether improper conduct is so harmful that the case must be redone. Of course, the harm analysis is conducted in light of the trial court's curative instruction. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.21
The federal courts have recognized the interplay between a trial court's curative actions and an appellate court's harm analysis in the argument context. This Court has joined that recognition by applying federal precedent in connection with argument error that is analyzed under Rule 44.2(b). Employing a harm analysis formula in evaluating the trial court's ruling on a motion for mistrial seems especially appropriate in the argument context, where misconduct occurs near the end of the case—giving the trial court an appellate-like "bird's eye" view of the situation. We therefore agree that the Mosley factors should be used to evaluate whether the trial court abused its discretion in denying a mistrial for improper argument, at least in cases like this one, in which constitutional rights are not implicated.
Moreover, we also agree with the...
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...trial court's denial of the motion for mistrial.” Archie v. State, 340 S.W.3d 734, 738 (Tex.Crim.App.2011) (quoting Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex.Crim.App.2004) ). Therefore, the proper issue is whether the trial court abused its discretion by denying Ford's request for a mist......
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...curative measures; and (3) the certainty of conviction or the punishment assessed absent the misconduct. See Hawkins v. State , 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc); Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (en banc).These standards typically do not apply t......
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...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).In this case, the substantial right could be defined in one of two ways. On the one hand, the substantial right could b......
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...motion for mistrial, the issue becomes whether the trial court abused its discretion in denying the mistrial. Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004). Only in extreme circumstances, when the prejudice caused by the improper argument is incurable, i.e., so prejudicial that exp......
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Trial issues
...motion for mistrial, the issue becomes whether the trial court abused its discretion in denying the mistrial. Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004). Only in extreme circumstances, when the prejudice caused by the improper argument is incurable, i.e., so prejudicial that exp......
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Trial Issues
...motion for mistrial, the issue becomes whether the trial court abused its discretion in denying the mistrial. Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004). Only in extreme circumstances, when the prejudice caused by the improper argument is incurable, i.e., so prejudicial that exp......
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Trial Issues
...motion for mistrial, the issue becomes whether the trial court abused its discretion in denying the mistrial. Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004). Only in extreme circumstances, when the prejudice caused by the improper argument is incurable, i.e., so prejudicial that exp......