Nisbett v. State
| Decision Date | 29 November 2018 |
| Docket Number | NO. 03-14-00402-CR,03-14-00402-CR |
| Parties | Rex Allen Nisbett, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
ON REMAND
NO. 13-0481-K26, THE HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING
A jury convicted appellant Rex Allen Nisbett of murdering his wife, Vicki Nisbett, back in 1991, see Tex. Penal Code § 19.02(b)(1), (2), and assessed his punishment at confinement for 42 years in the Texas Department of Criminal Justice, see id. § 12.32. On original submission, we concluded that the State's failure to present evidence demonstrating how Vicki died—to show that she was in fact dead, that appellant perpetrated a specific act causing her death, and that he did so with the requisite culpable mental state—rendered the evidence insufficient to support appellant's conviction. Nisbett v. State, No. 03-14-00402-CR, 2016 WL 7335843, at *16-17 (Tex. App.—Austin Dec. 15, 2016) (), rev'd, 552 S.W.3d 244 (Tex. Crim. App. 2018).
On discretionary review, the Court of Criminal Appeals disagreed with our conclusion and instead concluded that, even without evidence of how Vicki died, the evidence sufficed to infer Vicki's death, infer that appellant caused it, and infer that he did so with the requisite culpable mental state. Nisbett v. State, 552 S.W.3d 244, 262-268 (Tex. Crim. App. 2018). Therefore, the court concluded that the evidence was sufficient to infer that appellant was guilty of murder. Id. at 268. The court reversed our judgment and remanded the case for us to address appellant's remaining points of error. Id. On remand, we will affirm the trial court's judgment of conviction.
BACKGROUND
The factual background and procedural background of this case are fully discussed in the prior opinion of this Court, see Nisbett, 2016 WL 7335843, at *1, 3-8, 10-13, and will not be repeated here. We discuss further background details only as necessary to address the remaining points of error raised by appellant.
DISCUSSION
In his remaining points of error, appellant asserts that the prosecutor violated his constitutional right to remain silent during jury argument as well as during direct examination of a State's witness. In addition, he complains about the trial court permitting an expert witness to testify absent proper notice under the discovery statute.
Jury Argument
In his second point of error, appellant argues that the prosecutor violated his right to remain silent during jury argument by impermissibly commenting on appellant's failure to testify.Specifically, during final jury argument in the punishment phase of trial, the prosecutor commented that appellant would not reveal the location of his wife's body:
One of the things that I do want you to take into consideration is the one thing that the Johnson family wants out of this, and the only thing they've ever wanted. And it's not blood, and it's not vengeance. It's that they want Vicki back. They want to give her a Christian burial. And they want her remains, and they want to be able to have a memorial service and funeral that they've never had for her. That's the one thing they've asked for. They didn't come here for vengeance and out for blood and out for him to deal with a life sentence. That's never been what's in their hearts. What was in their hearts was they just want Vicki back, and he refuses to do that. So I hope you'll remember that --
Defense counsel objected to this argument as "commenting on [appellant's] right to silence, right not to testify." The trial court sustained the objection and then, on defense counsel's request, instructed the jury to disregard the comment. The trial court then denied defense counsel's request for a mistrial.
When the trial court sustains a defendant's objection to an allegedly improper argument and gives an instruction to disregard but denies the defendant's request for a motion for mistrial, the only issue to consider on appeal is whether the trial court erroneously denied the motion for mistrial. Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011); Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). We review a trial court's decision to deny a motion for mistrial for an abuse of discretion. Archie, 340 S.W.3d at 738-39; Hawkins, 135 S.W.3d at 77; Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). A trial court abuses its discretion when the court's decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); accordMcDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). We must uphold the trial court's ruling on a motion for mistrial if it is within the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Wead, 129 S.W.3d at 129.
The law provides for, and presumes, a fair trial free from improper argument by the State. Ex parte Lane, 303 S.W.3d 702, 712 (Tex. Crim. App. 2009) (citing Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991)). Proper jury argument must generally fall within one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) responses to argument of opposing counsel; and (4) pleas for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011); Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). The fact that a defendant did not testify does not fall into any of these categories and may not be the subject of comment by the prosecution. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001).
Further, a comment on a defendant's failure to testify violates both the federal and state constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011); see U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 38.08; see also Griffin v. California, 380 U.S. 609, 615 (1965). However, the implication that the State's comment referred to the defendant's failure to testify must be "a clear and necessary one." Randolph, 353 S.W.3d at 891; accord Bustamante, 48 S.W.3d at 767. Indirect or implied allusions, or language that might be construed as such, do not constitute a violation. Randolph, 353 S.W.3d at 891; Busby v. State, 253 S.W.3d 661, 666 (Tex. Crim. App. 2008); see Patrick v. State, 906 S.W.2d 481, 490-91 (Tex. Crim. App. 1995) (). Indeed, "[i]t is well settled that a prosecutor's comment amounts to a comment on a defendant's failure to testify only if the prosecutor manifestly intends the comment to be, or the comment is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant's failure to testify." Wead, 129 S.W.3d 130 (emphasis added); accord Bustamante, 48 S.W.3d at 765.
Thus, the test is whether the language used was manifestly intended to be, or was of such a character that the jury would necessarily and naturally take it as, a comment on the defendant's failure to testify. Randolph, 353 S.W.3d at 891; Archie, 340 S.W.3d at 738; Cruz, 225 S.W.3d at 48; see Bustamante, 48 S.W.3d at 765 (collecting cases). The context in which the comment was made must be analyzed to determine whether the language used was of such character. Randolph, 353 S.W.3d at 891; Cruz, 225 S.W.3d at 548; Bustamante, 48 S.W.3d at 765. Courts are not to find that the prosecutor manifestly intended to comment on the defendant's failure to testify if some other explanation for the remark is equally plausible. Randolph, 353 S.W.3d at 891. In assessing whether the defendant's rights have been violated, courts must view the State's argument from the jury's standpoint and resolve any ambiguities in the language in favor of its being a permissible argument. Id.
To evaluate whether the trial court abused its discretion in denying a motion for mistrial based on an improper jury argument in the punishment phase, the Court of Criminal Appeals has adopted a test that balances (1) the severity of the misconduct (the magnitude of the prejudicialeffect of the prosecutor's remarks); (2) the curative measures taken (the efficacy of any cautionary instruction by the judge); and (3) the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed). Hawkins, 135 S.W.3d at 77 (); see Mosley v. State, 983 S.W.2d 249, 260 (Tex. Crim. App. 1998) (). A mistrial is the appropriate remedy only when "the objectionable events are so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant." Archie, 340 S.W.3d at 739 (quoting Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004)); see Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (); Hawkins, 135 S.W.3d at 77 ().
Appellant argues that the prosecutor's argument here was intended to "inflame the jury at the expense of appellant's rights" and therefore he is "entitled to a reversal." However, as we noted above, indirect or implied allusions are not sufficient to show a violation of the Fifth Amendment—the words spoken must be...
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