Trent v. State, 10-95-322-CR

• Decision Date: 12 June 1996
• Docket Number: No. 10-95-322-CR,10-95-322-CR
• Parties: Kenneth Charles TRENT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 130

925 S.W.2d 130

Kenneth Charles TRENT, Appellant, v. The STATE of Texas, Appellee.

No. 10-95-322-CR.

Court of Appeals of Texas,

Waco.

June 12, 1996.

Rehearing Overruled July 10, 1996.

Walter M. Reaves, Jr., West, for appellant.

John W. Segrest, Criminal District Attorney, Wayne Coughran, Lyle V. Gripp, Asst. District Attorneys, Waco, for appellee.

Before CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

Kenneth Charles Trent was charged and convicted of Driving While Intoxicated and sentenced to 10 years in prison. See TEX. PENAL CODE ANN. § 49.04 (Vernon 1994). Trent brings three points of error charging that the trial court erred: (1) in overruling his motion for a mistrial after the prosecutor injected the issue of punishment into the guilt-innocence portion of the trial; (2) in refusing to submit an instruction on the legality of his arrest; and (3) in overruling his motion for a mistrial after the arresting officer testified that Trent had called him a "nigger lover." For the following reasons, we affirm.

On the night of January 14, 1995, Kenneth Trent entered the Two Minnies topless nightclub. The manager, Bobby Montgomery, testified that after observing Trent, he asked him to leave the bar. He stated that the defendant was "pretty well loaded" and that he "was wobbling." He further commented that Trent "smelled like a brewery" and that the strength of the odor was enough to "kill a mule." A few minutes after Trent had exited the club, Montgomery was informed that there was a problem in the parking lot. When he went outside to investigate, Montgomery saw Trent driving his automobile at a high rate of speed off a curb and into the street. He stated that Trent turned around and came back down the street without his headlights on and failed to stop at a stop sign. Trent then pulled into a gravel parking lot across the street and began doing "donuts" by stepping "on the gas and constantly go[ing] around in circles, [and] pitching gravel...." Trent then drove his automobile into the entrance of the neighboring Pizza Hut business. He got out of his car and began to threaten and yell at Montgomery and a co-worker. Montgomery and the co-worker went across the street to the parking lot, and while Trent was distracted, Montgomery turned off the car and removed the keys. They then handcuffed Trent and called the police. When Officers Scott Gibbs and Robert Lanning of the Waco Police Department arrived at the scene, they testified that Trent smelled of alcohol and that he was swaying and slurring his speech and that his eyes were bloodshot. They also stated that Trent was belligerent and being verbally abusive. Gibbs testified that he removed the handcuffs and performed several field sobriety tests upon Trent, all of which he failed. Gibbs stated that he believed Trent was drunk, and therefore, he was rehandcuffed and taken to jail. At the police station, Trent was given a breathalyzer test. His blood-alcohol level registered at .238, over twice the legal limit.

In his first point, Trent complains that the trial court erred in overruling his motion for a mistrial after the prosecutor injected the issue of punishment into jury argument during the guilt-innocence portion of the trial.

After Trent's final argument at the guilt-innocence portion of the trial, the prosecutor made the following argument:

[The State]: The defense wants you to consider the lesser included offense of public intoxication. First of all, you have not heard any evidence to believe that the Defendant was only publicly intoxicated. First of all public intoxication is a class C misdemeanor, it is the same thing as you receiving a traffic ticket.

[The Defense]: I object to that argument, it is improper, your Honor.

Court: Sustained.

[The Defense]: Ask the jury to disregard, and ask that it be stricken from the record.

Court: You are not to concern yourselves as to punishment, Ladies and Gentlemen, and you should disregard anything concerning that in determining guilt or innocence. You are to concern yourselves merely with the evidence in this portion of the case. You may proceed.

[The Defense]: The defendant moves for a mistrial at this time, your Honor.

Court: Motion for mistrial is denied.

[The State]: Public intoxication requires that you find that the defendant appeared in a public place intoxicated to the degree that he may have endangered himself or others. DWI requires in essence, public intoxication, being intoxicated but also while operating a motor vehicle. They wish for you to totally disregard all of the evidence that he was operating a motor vehicle, or just kind of pass it off, that he was only operating it for maybe a minute, or a minute and a half, until they could get the keys away from him....

(Emphasis added).

As a general rule, punishment may not be discussed by either side at the guilt-innocence portion of the trial. Garcia v. State, 887 S.W.2d 862, 877 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). During the first phase of the trial, the jury is limited to determining if the defendant committed an offense. If the defendant is convicted, the second phase of the trial deals with the punishment available for that conviction.

Trent argues that discussing the range of punishment renders an argument improper. He suggests that equating the offense of public intoxication with a traffic ticket injects the issue of punishment into the guilt-innocence portion of the trial. He claims that although the prosecutor did not specifically set forth the range of punishment for public intoxication, he accomplished this goal by comparing the offense to a traffic violation. He states that most jurors have either received a ticket for a traffic offense or know of someone who has. Because of that, it can be presumed that everyone knows the only available punishment for such an offense is a fine. As a result, he argues that the prosecutor indirectly informed the jury that it had a choice of convicting the defendant of either an offense that carried jail time or one which was punishable by fine only.

However, we do not need to determine whether the statement was improper. Since the trial court sustained the objection and instructed the jury to disregard, we will limit our review to determining whether the trial court erred in denying a mistrial.

The prosecution argues that any harm was cured by the court's instruction to disregard. Generally, once an objection has been sustained and an instruction given, an error does not occur unless the remark was so inflammatory that its prejudicial effect could not be reasonably removed from the minds of the jurors by the instruction given. See Kinnamon v. State, 791 S.W.2d 84, 89 (Tex.Crim.App.1990); Washington v. State, 822 S.W.2d 110, 118 (Tex.App.--Waco 1991), rev'd on other grounds, 856 S.W.2d 184 (Tex.Crim.App.1993).

Trent relies on McClure v. State, 544 S.W.2d 390, 393-94 (Tex.Crim.App.1976), for the proposition that the harm was not cured by the court's instruction to disregard. However, we can distinguish the present case. During jury argument in McClure, the prosecution continually stressed the penalty differences between the misdemeanor and felony offenses. The Court of Criminal Appeals found that the argument was improper because "it was a plea to the jury to consider the amount of punishment, rather than the facts, in determining the offense for which appellant should be convicted." In finding that the instruction to disregard did not cure the harm, the Court stated that the prosecutor repeatedly referred to punishment in the guilt-innocence portion of trial over the objections and instructions by the court.

In the present case, while the court ruled that comparing public intoxication to a traffic ticket was objectionable, we find that the trial court cured any harm by instructing the jury to disregard any statements that dealt with punishment in the guilt-innocence portion of the trial. We find that the statement was mentioned fleetingly. The prosecutor did not bring the issue up again after the objection was sustained and the instruction to disregard was given to the jury. We find that the statement was not...