Phillips v. State

• Decision Date: 26 February 2004
• Docket Number: No. 14-02-00195-CR.,No. 14-02-00193-CR.,14-02-00193-CR.,14-02-00195-CR.
• Citation: 130 S.W.3d 343
• Parties: Robert PHILLIPS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

130 S.W.3d 343

Robert PHILLIPS, Appellant, v. The STATE of Texas, Appellee.

No. 14-02-00193-CR.

No. 14-02-00195-CR.

Court of Appeals of Texas, Houston (14th Dist.).

February 26, 2004.

Belinda Johnson Chagnard, Houston, for appellant.

Kelly Ann Smith, Houston, for appellee.

Panel consists of Chief Justice BRISTER and Justices FOWLER and EDELMAN.

MAJORITY OPINION ON REHEARING

WANDA McKEE FOWLER, Justice.

We withdraw our opinion issued November 20, 2003, and substitute the following opinion on motion for rehearing.

A jury found appellant guilty of three counts of sexual assault of a child, and sentenced appellant to ten years' confinement in the Texas Department of Criminal Justice, Institutional Division and a $5,001.00 fine for each count. In nine issues on appeal, appellant complains that the trial court erred (1) by refusing to grant a mistrial even though a witness had mentioned an extraneous offense, (2) by not requiring the State to elect a specific transaction, (3) by refusing to grant a mistrial on the basis of improper jury argument, and (4) by refusing to grant a mistrial because the State improperly commented on appellant's right to a jury trial. We affirm in part and reverse in part. For two of the indicted offenses, we reverse because we conclude the trial court committed harmful error in not requiring the State to elect which offenses it was relying on for conviction. For the third indicted offense, we affirm because the State presented specific testimony of only one occurrence; on this count, the State was not required to elect.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant initially hired the fifteen-year-old complainant to teach him English and to help him with his business. While they were working together, appellant sexually assaulted the complainant; this sexual activity continually escalated for months. On March 10, 2000, appellant took the complainant to a hotel room where they engaged in sexual activity. The complainant eventually told her mother of the activity, and her mother notified the police.

The State charged appellant with three counts of sexual assault of a child. The jury found appellant guilty of all three counts.

DISCUSSION

Appellant raises nine issues on appeal. In his first issue, appellant contends the trial court erred when it refused to grant his motion for a mistrial based on a witness's comment about an extraneous offense. Combined in the second, third, and ninth issues, appellant argues the trial court failed to compel the State to elect which transaction it would rely upon for conviction. In the fourth, fifth, seventh, and eighth issues, appellant complains that the trial court erred when it refused to grant a mistrial because of the State's improper jury arguments. Finally, in the sixth issue, he asserts the trial court erred when it refused to grant a mistrial because the State improperly commented on appellant's right to a jury trial.

I. IMPROPER COMMENT ON EXTRANEOUS OFFENSE

First, appellant argues the trial court erred by not granting him a mistrial when the complainant mentioned an extraneous offense. At appellant's request, the trial court instructed the jury to disregard the statement. Nonetheless, he claims a mistrial was warranted. We review a trial court's denial of a mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000).

An instruction by the trial court to disregard improper testimony will usually cure error. Campos v. State, 589 S.W.2d 424, 428 (Tex.Crim.App.1979); Zataraus v. State, 666 S.W.2d 294, 296 (Tex. App.-Houston [14th Dist.] 1984, no pet.). When the trial court instructs a jury to disregard, we presume the jury follows the trial court's instructions. See Waldo v. State, 746 S.W.2d 750, 752-53 (Tex.Crim. App.1988). However, if the error is extremely prejudicial and cannot be withdrawn from the juror's minds, the trial court should declare a mistrial. See Lusk v. State, 82 S.W.3d 57, 60 (Tex.App.-Amarillo 2002, pet. ref'd). Accordingly, a mistrial is only appropriate when the event is "so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant." Id. at 60; see also Shepherd v. State, 915 S.W.2d 177, 179-80 (Tex.App.-Fort Worth 1996, pet ref'd) (holding a repeated comment on defendant's failure to testify warranted mistrial).

Here, when the State questioned the complainant about specific acts, she alluded to an extraneous offense by appellant. She stated, in part, the following:

[The State]: All right. At some point 14 months later, 15 months later, 16 months later, around May of 2001, did you finally tell your mom?

[The Complainant]: I finally told my mother after my sister confessed of something.

[Defense Attorney]: I will ask that last statement be stricken and the jury be instructed to disregard. May we approach the bench, Your Honor?

Outside the jury's presence, appellant's counsel requested a mistrial. The trial court denied the mistrial, but instructed the jury to disregard the last question and the last answer.¹

First, we do not find that the comment obviously refers to an extraneous offense. But even if it did refer to an extraneous offense, the remark was inadvertent and isolated.² Moreover, the single reference to any possible activity between appellant and the complainant's sister was not "so emotionally inflammatory"³ that the trial court's instruction to disregard did not cure all error. See Lusk, 82 S.W.3d at 60. Given the vague nature of the comment, the trial court did not abuse its discretion in denying appellant's motion for a mistrial. See Ladd, 3 S.W.3d at 567. We overrule appellant's first issue.

II. FAILING TO ELECT A TRANSACTION FOR EACH OFFENSE

In issues two, three and nine, appellant complains that the trial court committed reversible error when it failed to require the State to elect which transaction it would rely upon for each of the three indicted offenses. As to two of the indicted offenses, we agree that the trial court erred by not requiring the State to elect the transaction, and that the error was harmful. As to the third indicted offense—the penetration of the complainant's mouth with a sexual organ—we find no harmful error.

A. Legal Premises Underlying the Election Requirement.

The general rule is "where one act of intercourse is alleged in the indictment and more than one act of intercourse is shown by the evidence in a sexual assault trial, the State must elect the act upon which it would rely for conviction." O'Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim.App.1988). Before the State rests, the trial court has discretion in directing the State to make an election. See id. "However, once the State rests its case in chief, in the face of a timely request by the defendant, the trial court must ... order the State to make its election. Failure to do so constitutes error." Id. at 772; see also Crosslin v. State, 90 Tex.Crim. 467, 235 S.W. 905 (1921).

Case law has given four reasons for the rule:

• to protect the accused from the introduction of extraneous offenses, see Fisher v. State, 33 Tex. 792, 794 (1870);

• to minimize the risk that the jury might choose to convict, not because one or more crimes were proved beyond a reasonable doubt, but because all of them together convinced the jury the defendant was guilty, see id. ("The jury may have taken both [offenses] into account, and have considered that one or the other was not sufficiently made out to warrant a conviction, but that both together convinced [it] of the guilt of the defendant....");

• to ensure unanimous verdicts, that is, all of the jurors agreeing that one specific incident, which constituted the offense charged in the indictment, occurred, see Francis v. State, 36 S.W.3d 121, 123-25 (Tex.Crim. App.2000); and

• to give the defendant notice of the particular offense the State intends to rely upon for prosecution and afford the defendant an opportunity to defend, see O'Neal, 746 S.W.2d at 772-73.

See also DIX AND DAWSON, TEXAS PRACTICE, Criminal Practice and Procedure, Election Among Transactions, "Offenses," Acts, or Incidents, vol. 42, §§ 30.52-30.60, pp. 664-0687 (2d ed.2001).

The State admits the trial court erred by not requiring the State to elect an act and a date, and we find the trial court did err by not instructing the State to elect a transaction. See id. Having found that the trial court erred, our next task is to determine whether the error was harmful. Two problems complicate that review, which we will address in turn.

B. Complaint Not Waived by Giving a Bad Reason for Wanting an Election.

The first complicating fact is that on appeal, appellant gives a different reason for wanting the election than he gave the trial court. At trial, appellant advanced double jeopardy concerns as his reason for seeking an election.⁴ But, on appeal, appellant contends that the State's failure to elect precluded him from establishing an alibi defense. In spite of this disparity between the complaint at trial and the complaint on appeal, we hold that appellant did not waive his complaint that the court should have required the State to elect a transaction for the three offenses.⁵

To preserve a complaint for appellate review, a defendant must make a timely request, objection, or motion that specifically states the grounds for the requested ruling. Tex.R.App. P. 33.1(a)(1). "An objection stating one legal basis may not be used to support a different legal theory on appeal." Jensen v. State, 66 S.W.3d 528, 536 (Tex.App.-Houston [14th Dist.] 2002, pet ref'd).

Although appellant advances a different reason for wanting an election on appeal than he advanced at trial, the legal basis for his motion remained the same: he wanted the State to elect the offenses it would rely on for conviction. The trial court was not denied an...