Schreyer v. State, No. 05-03-01127-CR (TX 7/29/2005)
| Decision Date | 29 July 2005 |
| Docket Number | No. 05-03-01127-CR.,05-03-01127-CR. |
| Parties | ULRICH EDWARD SCHREYER, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F03-01177-UK.
AFFIRMED.
Before Justices BRIDGES, RICHTER, and LANG.
Ulrich Edward Schreyer,1 appellant, was indicted for aggravated assault of a public servant, which was enhanced by a prior conviction. The jury found him guilty of the lesser included offense of aggravated assault and assessed his punishment at twenty years of confinement and a $5,000 fine.
Appellant brings seven issues on appeal that essentially argue four points, which claim the trial court erred when it: (1) denied his motion for mistrial; (2) failed to charge the jury on the lesser included offenses of deadly conduct, resisting arrest, and misdemeanor assault; (3) did not limit the definitions of knowingly and intentionally in the jury charge; and (4) denied his motion to suppress. We decide appellant's issues on appeal against him. The trial court's judgment is affirmed.
Appellant went to CarMax, a used car dealership in Irving, to sell a Cadillac Seville. In order to complete the sale, appellant gave Selena Ninah, an employee in CarMax's business office, the required documentation on the car, and she made a copy of appellant's driver's license. Ms. Ninah told appellant it would take thirty minutes for her to process the paperwork, so appellant left CarMax stating he would return later. Ms. Ninah secured reports on the car from several sources, TWIX, CARFAX, and NICB, and gave the information to another CarMax employee, Jay Melton. Mr. Melton called the police because the reports revealed the car was stolen.
Officer Reed, who was in unform, responded to the call from CarMax to investigate Mr. Melton's report. Officer Reed called Detective Bailey, a plain-clothes auto theft investigator, for assistance. Then, Officer Reed, Detective Bailey, and Mr. Melton waited for appellant to return.
When appellant returned to CarMax, Mr. Melton, Officer Reed, and Detective Bailey approached him. Detective Bailey told appellant that he needed to speak with him. Detective Bailey did not identify himself as a police officer. Appellant turned away from Detective Bailey and saw Officer Reed. In response to seeing the uniformed officer, appellant began to back away. Officer Reed grabbed appellant's belt. Detective Bailey saw appellant reach into his waistband. Detective Bailey yelled, "He's got a gun," and a struggle ensued. The CarMax employees took cover behind the counter.
Detective Bailey and appellant fell to the ground struggling over the gun, which was a derringer. Appellant was attempting to put the derringer into his own mouth and Detective Bailey felt him pulling the trigger. During this time, Officer Reed attempted to subdue appellant, first with words, then by hitting him with her hand. When these methods failed, Officer Reed told appellant she would shoot him and he responded, Officer Reed was afraid she might accidentally shoot Detective Bailey, so instead, she began hitting appellant with her baton. Because her attempts to subdue appellant failed, Officer Reed used pepper spray. When appellant released the derringer, Detective Bailey threw it across the floor. While Detective Bailey was attempting to retrieve the derringer, appellant started getting up from the floor. Detective Bailey yelled, "She needs help." In response, Brian Dunn, a CarMax employee, jumped on appellant's back and placed him in a choke hold. After police backup arrived, appellant was arrested and read his Miranda2 warnings.
When appellant was initially processed into the jail, the arresting officers were unable to obtain a readable set of fingerprints. They also believed appellant was lying about his name. Stacy Curtis, a jail supervisor, asked appellant to allow her to take another set of fingerprints. In response, appellant told her he had soaked his hands in a chemical that had eaten away his fingerprints. After looking at his fingers, Curtis concluded she would not be able to obtain a readable set of fingerprints. Curtis asked appellant if there was someone available who could verify his identity. He answered that there was not. As a result, Curtis discussed with appellant the necessity of verifying his identity so the book-in process could be completed. Appellant requested an attorney. Curtis told him that it was his right to speak with an attorney, but she also told him she needed to know his true name so the book-in process could be completed and that he could not use the telephone because he could not be booked in. Curtis did not attempt to leave the cell or end the conversation after appellant requested an attorney. Appellant and Curtis made small talk for approximately fifteen to twenty minutes and during their conversation, appellant asked Curtis to "just listen." After their conversation, appellant requested some paper, wrote down his name and another alias, Ernie Elfa Weidenfeller, and gave it to Curtis. Appellant also told Curtis that he was on federal probation and believed there was an outstanding federal warrant for him. As Curtis was leaving, appellant asked her if he would be charged with a federal offense because he had taken the car across state lines. Curtis told him she did not know but she would tell the officers he wanted an answer to that question.
Before trial, appellant moved to suppress his statements regarding his identity, which the trial court denied. At the hearing on appellant's motion to suppress, appellant and the State stipulated to the following facts: (1) appellant told the arresting officers he "needed an attorney"; (2) the arresting officer gave appellant his Miranda warnings; and (3) appellant refused to give any information about himself.
In separate indictments, appellant was charged with the aggravated assault of public servants, namely Officer Reed and Detective Bailey. The indictments also alleged a prior conviction for receiving stolen property. The indictments were tried together in a single jury trial.
During deliberations, the jury sent the trial court a note inquiring whether they were supposed to have Defendant's Exhibit 1. The trial court determined the jurors were not supposed to have Defendant's Exhibit 1. The trial judge questioned the presiding juror, separately, and learned that all of the jurors had read the document or were at least knowledgeable of it. The trial court announced it would instruct the jurors to disregard Defendant's Exhibit 1. Appellant moved for a mistrial, and the State joined the motion. The trial court denied the motion. The trial court admonished the jurors as a group. Then, the trial court asked each juror, individually, if he or she understood the trial court's instruction and whether he or she was able to and intended to abide by the instruction. All twelve jurors responded that they understood the instruction and would abide by it.
The jury acquitted appellant of the charge of aggravated assault of a public servant with respect to Officer Reed and found appellant guilty of the lesser included offense of aggravated assault of Detective Bailey. After the verdict was read, the trial court questioned each juror regarding whether they had followed his instruction to disregard. Each of the twelve jurors stated they had followed the trial court's instruction to disregard and the contents of the document played no role in their finding appellant guilty of the aggravated assault of Detective Bailey. After hearing evidence on punishment, the jury found the enhancement paragraph true and assessed appellant's punishment at twenty years of confinement and a $5,000 fine.
In his first issue on appeal, appellant argues the trial court erred when it refused to declare a mistrial after learning the jury had viewed a document not in evidence during their deliberation of appellant's guilt. The State responds that the trial court did not abuse its discretion when it denied appellant's motion for a mistrial and appellant failed to object to the trial court's consideration of the jurors' post-verdict testimony.3 We decide this issue against appellant.
The decision to deny a motion for mistrial is within the discretion of the trial court. Edwards v. State, 106 S.W.3d 833, 838 (Tex. App.-Dallas 2003, pet. ref'd) (citing Rousseau v. State, 855 S.W.2d 666, 684 (Tex. Crim. App. 1993)). An appellate court reviews a trial court's decision to deny a mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993)).
A mistrial is an extreme remedy for prejudicial events occurring during the trial process. Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). However, a prompt instruction to disregard will ordinarily cure the prejudicial effect. See Ladd, 3 S.W.3d at 567. The jury is presumed to follow the trial court's instruction to disregard improperly admitted evidence in the absence of evidence indicating the members of the jury failed to do so. Gibson v. State, 29 S.W.3d 221, 225 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd);see Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999); Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998)(presuming jury generally follows trial court's instruction unless defendant presents evidence to rebut presumption).
Texas Rule of Appellate Procedure 21.3(f) requires a defendant in a criminal action to be granted a new trial "when, after retiring to deliberate, the jury has received other evidence." Tex. R. App. P. 21.3(f); see Bustamante v....
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