Larkin v. State, No. 10-06-00313-CR (Tex. App. 5/14/2008)

• Decision Date: 14 May 2008
• Docket Number: No. 10-06-00314-CR.,No. 10-06-00313-CR.,10-06-00313-CR.,10-06-00314-CR.
• Parties: MICHAEL LARKIN, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

MICHAEL LARKIN, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 10-06-00313-CR.

No. 10-06-00314-CR.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed May 14, 2008.

Do Not Publish.

Appeal from the 52nd District Court, Coryell County, Texas, Trial Court Nos. FISC-05-17710 and FO-06-18232.

Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Justice Vance concurs in the judgment)

MEMORANDUM OPINION

TOM GRAY, Chief Justice.

Larkin appeals his convictions for aggravated sexual assault, and criminal attempt to commit aggravated kidnapping, of a child, Anna James, a pseudonym. See TEX. PENAL CODE ANN. §§ 15.01, 20.04 (Vernon 2003), § 22.021 (Vernon Supp. 2007); TEX. CODE CRIM. PROC. ANN. art. 57.01(2) (Vernon 2006), art. 57.02(b)-(h) (Vernon Supp. 2007). The jury found that Larkin "cause[d] the penetration of the anus of Anna James[,] . . . a child who was . . . younger than 14 years of age . . . , by [Larkin]'s finger," and "with the specific intent to commit the offense of Aggravated Kidnapping of Anna James . . . , and with the intent to violate or abuse sexually Anna James . . . [,] put his arm around Anna James' neck, tried to cover her mouth, and told her she was coming with him." (1 C.R. (No. 10-06-00313-CR) at 1; 1 C.R. (No. 10-06-00314-CR) at 1; see 14 R.R. at 29, 31); Tex. Penal Code Ann. §§ 15.01(a), 20.04(a)(4), 22.021(a)(1)(B)(i), (2)(B). We affirm.

Argument.

In Larkin's first two issues, he complains of the State's jury argument.

Permissible jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement.

Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007) (citing Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000)); accord Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).

Guilt-Innocence. In Larkin's first issue, he asks:

Was the State's Guilt/Innocence jury argument . . outside of and unsupported by the Record and so calculated to inflame the prejudice of jurors as to be incapable of eradication from jurors' minds by even a proper instruction; and, if curable, were the instructions given inadequate, so as to render the denial of a mistrial reversible error?"

(Br. at 7 (emphasis in orig.).)

When the trial court sustains an objection to jury argument, instructs the jury to disregard the argument, and denies a motion for mistrial, the only error, if any, can be in the denial of the motion for mistrial. See Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). "[A]n instruction to disregard the argument generally cures the error." Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995); see Wesbrook v. State, 29 S.W.3d 103, 115-16 (Tex. Crim. App. 2000); Pierce v. State, 234 S.W.3d 265, 268 (Tex. App.-Waco 2007, pet. ref'd); cf. Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct. 2982 (2006); Hawkins at 78-82.

"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.'" Hawkins, 135 S.W.3d at 77 (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Id. (citing Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003)); see McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998).

"We review a trial court's denial of motions for mistrial . . under an abuse of discretion standard." Gallo, 239 S.W.3d at 775 (citing Simpson, 119 S.W.3d at 272; Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995)); see Penn v. State, 36 Tex. Crim. 140, 143, 35 S.W. 973, 974 (1896). Under that standard, "as long as the trial court's decision was within the zone of reasonable disagreement and was correct under any theory of law applicable to the case, it must be upheld." Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g)).

"[T]he Mosley [v. Texas] factors should be used to evaluate whether the trial court abused its discretion in denying a mistrial for improper argument . . . ." Hawkins, 135 S.W.3d at 77; see Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). We balance: "(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instructions by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction)." Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004) (quoting Mosley at 259).

Larkin complains of the following argument in the guilt-or-innocence phase of trial:

What did he plan to do that day? [Emphasis is Appellant's] Planned to grab a child out of the bathroom, run into his car[,] go out to Fort Hood[] and we would probably have a murder and a dead child out there that would be discovered, bones discovered out on Fort Hood somewhere.

(Br. at 11 (emphasis added by Larkin) (first bracketed addition by Larkin) (other bracketed corrections added).)

After that jury argument, the following colloquy took place between the trial court and Larkin's counsel, Montgomery:

MR. MONTGOMERY: Your Honor, I am going to have to object to that comment, that's not supported by the evidence.

THE COURT: All right. Counsel will restrain his argument to matters in evidence. The jury will consider the evidence as they recall it in the case and only the evidence as they recall it in the case.

MR. MONTGOMERY: And I further request a mistrial. There's no curative instruction that can support the argument that a murder would have occurred. There's nothing in the record to support that. That is grossly unconscionable activity or conduct on the part of this district attorney.

THE COURT: All right. That motion is denied. The jury will disregard any comment concerning any matter that is not shown by the evidence in this case, including the last argument made by the district attorney.

(14 R.R. at 25-26.)

First, as to the severity of misconduct, we assume without deciding, as Larkin argues, that the argument was extremely prejudicial. Second, as to the measures adopted to cure the argument, Larkin did not request an instruction; he contended that the argument was incurable. The trial court, nonetheless, sua sponte repeatedly and effectively instructed the jury to disregard, both as to matters not in evidence generally and specifically as to the State's argument. Third, the certainty of conviction without the State's argument was strong. Anna, nine years of age at the time of trial, testified clearly and directly. For example, she testified of Larkin:

he had a camera phone and he went to the stall right next to me and took a camera phone . . . , took pictures of me using the bathroom, and then he went under the stall where I was and strangled me, then he put his hand on my butt where I use the bathroom.

(12 R.R. at 48.) Anna also testified, "after I was getting ready to wipe myself, he came under the stall and he did that to my butt," that is, "had his hand in my butt." (Id. at 59, 60.) Anna's outcry witness corroborated Anna's testimony; several witnesses identified Larkin as the stranger at Anna's elementary school and testified to Anna's screams; and Anna's video-recorded statement and Larkin's written and recorded oral confessions were in evidence. For example, Larkin confessed:

I ENTERD [sic] THE GIRLS BATHROOM AND TRIED TOO [sic] ASSAULT A GIRL[.] IN DOING SO I PUT MY HANDS ON HER BOTTOM AREA AND OVER HER MOUT [sic] TELLING HER TOO [sic] BE QUIET. SHE SCREEMED [sic] AND I LEFT THE SCHOOL[.] ON THE DAY PRIOR I WAS AT THE SCHOOL BUT COULDT [sic] bring myself to do such an act.

(State Ex. No. 6.) Larkin also confessed:

On March 9^th, 2005 I was [sic] Halstead Elementary and I followed a girl into the bathroom. I went into the stall behind her, attempted to assault her[. I]n doing so I tried to cover her mouth and placed my hands on her bottom. I told her she was going to come with me and she was screaming and crying.

(State Ex. No. 7, at [1]-[2].)

Even assuming misconduct, the second and third factors would outweigh the first. The trial court did not abuse its discretion in denying Larkin's motion for mistrial.

We overrule Larkin's first issue.

Punishment.

In Larkin's second issue, he asks, "Was the State's Punishment jury argument . . . inflammatory and invitive of juror speculation as to matters outside of the Record, and not cured by the instruction given; and, if not in and of itself independently reversible, nevertheless reversible error in light of the cumulative prejudicial effect?" (Br. at 7 (emphasis in orig.).)

Texas Rule of Appellate Procedure 33.1 provides:

As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion . . . ; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

TEX. R. APP. P. 33.1(a). "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only[,] . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004) (quoting Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004)) (ellipsis in Mendez); accord King v. State, 953 S.W.2d 266, 268 (Tex. Crim. App. 1997); see Marin v. State,...