Cunning Mitchell Morgan v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00261-CR
CUNNING MITCHELL MORGAN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 11-06167-CRF-272
MEMORANDUM OPINION
Cunning Mitchell Morgan appeals from his conviction for theft over $20,000 but
less than $100,000. TEX. PEN. CODE ANN. § 31.03 (West 2011). The jury found two
enhancement paragraphs to be true, and Morgan was sentenced to sixty years in prison.
In one issue, Morgan complains that the trial court erred by denying his motion for a
mistrial during closing argument based on improper jury argument by the State
regarding extraneous offenses for which there was no evidence. Because we find that
the trial court did not err by denying his motion, we affirm the judgment of the trial
court.
Morgan was convicted of taking a Nissan Maxima from a used car dealership
and then refusing to pay for it. Due to a miscommunication at the dealership, Morgan
left the dealership with the Maxima upon the promise of returning with the full cash
balance of approximately $37,000 after he had signed the sales contract and left a check
for $500 until he could return with the balance. Morgan had provided documentation
to the dealership showing that he had been injured in an explosion and received a large
financial settlement. Morgan did not return with the balance due and made many
excuses in the following days as to why he could not pay and refused to return the
vehicle upon request. Morgan cancelled the $500 check and lied to law enforcement
about his whereabouts. Morgan told the officer that he would return the vehicle on a
certain date and did not. The vehicle was ultimately recovered a few blocks from his
residence after a warrant had been issued for his arrest approximately two weeks after
the date he had agreed to return the vehicle.
During the guilt-innocence phase, extraneous offense evidence was admitted
regarding a Lexus that Morgan had allegedly fraudulently taken from a different
dealership using a false address and social security number and claimed that he was
receiving a settlement from a chemical explosion. The Lexus was returned during the
night some days later with several thousand dollars in damage.
The jury found Morgan guilty of theft for taking the Maxima from the
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dealership, and Morgan has not raised any issues from the guilt-innocence phase of the
trial. However, Morgan does complain of improper argument during the closing
argument of the State in the punishment phase of his trial related to potential offenses
for which Morgan had not been convicted and of which no evidence had been
presented, which he contends resulted in a greater sentence than he would have
received without the improper argument.
In the State's closing argument, the complained-of exchange was as follows:
STATE: [Morgan] makes an argument that, hey, he's only
been to the pen twice. Those dates on the judgment
are all the same. Yeah, take a look at the dates the
offense was actually committed on each one of those
judgments. The system cannot keep up with all of the
offenses that Cunning Morgan is making or Thomas
or Clifford Robinson or B. D. Bivins.1
Because if you think that everything Mr. Morgan has
done is contained in the pen packs, use your common
sense. Think he's been convicted every time?
MORGAN: Judge, I object. He's trying to make an argument that
there's [sic] other crimes they have not present [sic] to
this jury and use that as evidence against him.
TRIAL COURT: Sustain the objection.
MORGAN: Ask the jury to disregard the comment.
TRIAL COURT: Disregard the last comment.
MORGAN: Move for a mistrial.
1The evidence during the punishment phase of the trial showed that these names were aliases of Morgan
during his previous crimes.
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TRIAL COURT: Denied.
Initially we note that the State is afforded wide latitude in its jury argument and
may draw all reasonable, fair, and legitimate inferences from the evidence. Allridge v.
State, 762 S.W.2d 146, 156 (Tex. Crim. App. 1988). Nonetheless, the State may not
engage in jury argument that invites the jury to speculate whether the defendant has
committed other crimes not in evidence. See Villarreal v. State, 576 S.W.2d 51, 64 (Tex.
Crim. App. 1978) (en banc). The State concedes that the statement was improper.
Because the trial court sustained Morgan's objection and instructed the jury to
disregard the prosecutor's statements, the only issue we must decide is whether the trial
court abused its discretion when it denied Morgan's motion for a mistrial. Archie v.
State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). "Only in extreme circumstances,
where the prejudice is incurable, will a mistrial be required." Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004). Whether a trial court should have granted a
mistrial involves most, if not all, of the same considerations that attend a harm analysis.
Archie, 221 S.W.3d at 700. As a result, to determine whether a trial court abused its
discretion by denying a mistrial, we apply a tailored version of the Mosley test. Id.
(citing Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)). Under the tailored
Mosley test, we are required to balance three factors: (1) the severity of the misconduct
or the magnitude of the prejudicial effect, (2) the measures adopted to cure the
misconduct, and (3) the certainty of conviction or punishment absent the misconduct.
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Id.; Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
We cannot conclude the argument was so extreme or manifestly improper as to
be beyond cure. The State's argument was otherwise not improper either before or after
the complained-of remark. The trial court sustained Morgan's objection to the
argument and promptly instructed the jury to disregard the statement. With regard to
the certainty of the punishment assessed, we note that although Morgan was sentenced
well above the minimum sentence of 25 years, it was also below the maximum sentence
of life or 99 years. There was evidence in the record of seven prior felony convictions,
some for violent offenses and at the time of trial Morgan was under indictment for the
offense regarding the Lexus. In one of his prior convictions, he had attempted to steal a
Porsche and in the course of his theft, dragged a salesman approximately a mile. While
the salesman was holding onto the car, Morgan tried to throw him off and threatened to
kill him. Under the facts of this case and using the factors as set forth in Mosley, we
conclude the trial court's instruction sufficiently ameliorated any potential harm and the
trial court did not abuse its discretion by denying Morgan's motion for a mistrial.
Morgan's sole issue is overruled.
Conclusion
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 22, 2014
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