Carl Manuel Otero v. State ( 2007 )

Opinion filed May 24, 2007

Opinion filed May 24, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00224-CR

                                                     __________

                                  CARL MANUEL OTERO, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 35th District Court

                                                          Brown County, Texas

                                                 Trial Court Cause No. CR17600

                                                                   O P I N I O N

The jury convicted Carl Manuel Otero of burglary of a habitation and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of thirty-two years.  Appellant raises two issues on appeal concerning matters occurring during the punishment phase of his trial.  We affirm.

                                                               Background Facts

Appellant was charged with entering a habitation without the effective consent of the owner and thereafter attempting to commit or committing the felony offense of sexual assault.  The State offered into evidence a written confession from appellant wherein he admitted to the alleged conduct.  Appellant stated in the confession that he broke into a home and digitally penetrated the female sexual organ of the occupant while she lay in bed.

                                                                         Issues

Appellant directs his first issue at comments made by the prosecutor during closing argument with respect to the application of parole laws.  In his second issue, appellant contends that the trial court erred in admitting evidence of a misdemeanor conviction from Colorado.

                                        Prosecutor=s Argument Regarding Parole Laws

As required by Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(b) (Vernon 2006), the court=s charge on punishment contained the following instruction:

Under the law applicable in this case, the Defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time.  Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation.  If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the Defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the Defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one‑fourth of the sentence imposed or fifteen (15) years, whichever is less.  Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this Defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.  You may consider the existence of the parole law and good conduct time.  However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

The prosecutor commented extensively on the parole law instruction during closing argument. He began his discussion of the instruction by stating as follows:  AThen the Judge tells you as to the parole instructions on page seven.  He tells you right there that, under the law applicable to the case, if the Defendant is sentenced to a --@ Defense counsel lodged an objection at this point on the ground that the prosecutor was making an improper argument. The trial court overruled the objection and instructed the jury as follows: AThe jury is to refer to the instruction.  You must follow it.  You may argue.  I refer the jury to the charge and each counsel.@

The prosecutor resumed his comments about the parole law instruction by stating as follows:

If the Defendant is sentenced to a term of imprisonment, he will not become eligible for parole till the actual time served plus any good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less.  And the Court is clear that you have no way of knowing how that will affect a sentence that you impose him, so [the court] tells you in [its] charge, don=t try to do the math and figure out, if you give him so many years, how soon he will be eligible for parole because you don=t know how much good conduct time he is going to earn.

But, it does tell you in here that you can consider the existence of parole law. And so, it is important that you understand the parole law. . . . In using this just as a hypothetical, if you set a 50-year sentence, one-fourth of that would be twelve-and-a-half years. And so, if he never earned a day of good conduct time --

Defense counsel renewed his previous objection at this point during the prosecutor=s argument.   The trial court sustained defense counsel=s objection and instructed the prosecutor as follows: AAt this point, just, do not elaborate on the instruction.  The instruction speaks for itself.  You may emphasize portions of the charge, but don=t expand it.  The charge speaks for itself.@ Defense counsel then asked for the jury to be instructed to disregard the prosecutor=s last statements to which the trial court replied: ASo instructed.  Just follow the charge.@

The prosecutor continued his argument as follows: 

You can see how the Judge charges you and you can see what that means.  And the Judge explains to you that he might earn good conduct time, time for good behavior in addition to the regular days that he serves. And that when you look at all of that good conduct time and real time together, after one-fourth of a sentence, he may be eligible for parole at that point.

Defense counsel lodged a third objection to the prosecutor=s argument at this point.  The trial court issued the following ruling on the objection:  AThe objection is sustained to the point where there is any additional language other than what the charge says, if any.  The jury is instructed to follow strictly the charge and nothing else.  Go ahead.@ Defense counsel then moved for a mistrial based upon the prosecutor=s argument. 

Appellant contends in his first issue that the trial court erred in overruling his motion for mistrial.  The State initially responds that appellant failed to preserve error because he did not request a curative instruction from the trial court for the jury to disregard the challenged argument.  See Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992).  We disagree.  The trial court gave curative instructions on its own accord after sustaining appellant=s objections to the prosecutor=s comments.  No useful purpose would be served in requiring appellant to request a curative instruction after the trial court had already instructed the jury to limit its consideration of the parole law to the language set out in the court=s charge.

The State additionally responds to appellant=s first issue by asserting that it did not engage in improper jury argument. Specifically, the State contends that the prosecutor=s comments did not suggest to the jury how to apply the parole laws to appellant specifically.  See Taylor v. State, 911 S.W.2d 906, 911 (Tex. App.CFort Worth 1995, pet. ref=d). We disagree.  The court held in Taylor that a prosecutor=s argument about how the parole law would be applied to Aa defendant@ or Aany defendant@ does not invite the jury to consider how the parole law would be applied to the particular defendant on trial.  Id.  Taylor is inapplicable because the prosecutor directed the jury=s attention to how the parole laws should be applied to appellant by his use of Athe defendant@ and Ahe@ and Ahim@ in the portions of the closing argument quoted above.

We review the trial court=s denial of a request for mistrial under an abuse of discretion standard.  Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). In making its determination as to whether to grant a mistrial, the trial court determines whether the improper conduct is so harmful that the case must be redone.  Id.  The harm analysis is conducted in light of the trial court=s curative instruction.  Id. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.  Id. In determining whether the trial court abused its discretion, we apply a tailored version of the factors found in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998):  (1) the severity of the misconduct (prejudicial effect); (2) curative measures; 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.

Applying these factors to the trial court=s actions, we conclude that the trial court did not err in denying the request for a mistrial. Although the prosecutor=s comments were directed to appellant=s particular situation, the statements only expanded upon the text of the court=s charge to a minimal degree.   The trial court responded quickly to appellant=s objections with firm instructions for the jury to restrict its consideration to the language in the court=s charge.  Furthermore, the prejudicial effect of the prosecutor=s comments on the thirty-two year prison term the jury gave appellant is not readily apparent given the applicable punishment range for a first-degree felony and the repugnant nature of appellant=s conduct.  Appellant=s first issue is overruled.

                                                  Colorado Misdemeanor Conviction

The State offered into evidence during the punishment phase a certified copy of a document from El Paso County, Colorado, entitled AREGISTER OF ACTIONS MISDEMEANOR/ TRAFFIC/INFRACTIONS.@  The document indicated that appellant was charged with three offenses alleged to have occurred on March 13, 1994.  The offenses consisted of:  Athird degree@ assault, criminal mischief, and reckless endangerment. The document appears to indicate that appellant was convicted of the assault charge and assessed a thirty-day jail sentence and placed on probation. 

Appellant asserts in his second issue that the trial court erred in admitting the Colorado conviction record into evidence.  He contends that the document was inadmissible because it does not establish a knowing and voluntary waiver of counsel by appellant.  We review decisions to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). When a foreign conviction is involved, in absence of proof of the laws of the other state, we presume that its law is the same as that of the State of Texas. Langston v. State, 776 S.W.2d 586, 587 (Tex. Crim. App. 1989).  A prior conviction that is alleged for enhancement may be collaterally attacked if it is void or if it is tainted by a constitutional defect.  See Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. 1979).  When a defendant collaterally attacks a misdemeanor conviction offered for enhancement purposes, the defendant has the burden to prove that he did not voluntarily, knowingly, and intelligently waive his right to counsel. Garcia v. State, 909 S.W.2d 563, 566 (Tex. App.CCorpus Christi 1995, pet. ref=d).

We note at the outset that the Colorado conviction record has a box checked beside the words: AAdvised of rights, nature of charges, possible penalties.@  Appellant testified as follows regarding his waiver of counsel:

Q. Okay.  You entered a plea on these cases and got a probation, did you not?

A.  Yes, sir.

Q.  And prior to being placed on probation in those cases, you, again, were advised of your rights, the nature of the charges and the possible penalties, correct?

A.  I would have to say yes, sir.

Q.  And you would agree that the form actually indicates on there that you were advised of your rights, the nature of the charges and possible penalties, correct?

A.  Yes, sir.

Q.  So, you understood the right that if you wanted to, you could have counsel present, you could contest these charges, but you chose not to do that, and, in fact, you waived that and pled to that?

A.  Actually, at that time, I didn=t know -- like I say, I didn=t -- how do I explain that?  This was the easy way out for me, just to sign their papers, to sign for what they had charged me with.  If I would have been smart, I could have got a lawyer and they all would have been dismissed considering the circumstances.

Accordingly, appellant acknowledged that the Colorado conviction record correctly indicated that he was advised of his rights.^[1]  Appellant additionally testified he based his decision to proceed without an attorney on the charges in Colorado on the desire to take the Aeasy way out@ as opposed to a lack of knowledge of his right to counsel.  We conclude that the trial court did not abuse its discretion in admitting the conviction record from Colorado. Appellant=s second issue is overruled.

                                                   This Court=s Ruling

The trial court=s judgment is affirmed.

TERRY McCALL

JUSTICE

May 24, 2007

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

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^[1]We note that a trial court is not required to admonish a misdemeanor defendant of the dangers and disadvantages of self‑representation when he appears without an attorney to plead guilty.  Hatten v. State, 71 S.W.3d 332, 334 (Tex. Crim. App. 2002);  Johnson v. State, 614 S.W.2d 116, 119‑20 (Tex. Crim. App. 1981).