Alberto Palacio v. State ( 2019 )


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  • Affirmed and Opinion filed June 27, 2019.
    In The
    Fourteenth Court of Appeals
    NO. 14-17-00512-CR
    ALBERTO PALACIO, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 174th District Court
    Harris County, Texas
    Trial Court Cause No. 1470978
    OPINION
    Appellant Alberto Palacio appeals his conviction for burglary of a
    habitation. In three issues he complains that the trial court (1) allowed the State to
    define and discuss “deadly weapon” during voir dire, (2) failed to grant a mistrial,
    and (3) failed to instruct the jury on an alleged lesser-included offense of assault.
    We affirm.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    Appellant had a violent history with his sister, the complainant, who had
    suffered physical abuse at appellant’s hands since childhood. Their mother lived
    with the sister and the sister’s two children. Appellant was not welcome on the
    sister’s property. Posted notices stated appellant was banned from the premises.
    Nonetheless, appellant would visit his mother at the sister’s house while the sister
    was at work. On the day in question, appellant was visiting his mother at the
    sister’s house. Appellant’s mother asked appellant to leave before the sister
    returned home. He did not.
    When the sister came home and found appellant in her yard with their
    mother, the sister told appellant to leave. Then the two women went inside the
    house. The sister asked the mother to call the police. Before help arrived, appellant
    smashed a patio chair through the front-door window. He then grabbed the sister
    through the window as she was trying to keep the front door closed. Appellant
    began twisting and turning her with his hands, holding on to her upper body. The
    movement caused the window glass to cut the sister’s flesh. She suffered gashes in
    her arms. Both the mother and the sister feared that appellant would harm the sister
    severely. Appellant threatened to kill his sister and then fled the premises before
    the police arrived.
    Appellant was charged with burglary of a habitation with intent to commit
    assault. The primary paragraph of the indictment contained the elements of a
    charge of burglary under Penal Code section 30.02(a)(1) involving entry of a
    habitation with intent to commit assault. The second paragraph contained an
    allegation that appellant used and exhibited a deadly weapon, namely, a broken
    glass, during the commission of the offense. The last two paragraphs contained
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    allegations of two prior convictions, one for aggravated assault with a deadly
    weapon (2002) and the other for assault of a family member (2010).
    The jury found appellant guilty as charged. Appellant pleaded “true” to both
    enhancement paragraphs. The trial judge made a negative finding on the deadly-
    weapon issue, assessed punishment, and sentenced appellant to forty-five years’
    confinement.
    II. ISSUES AND ANALYSIS
    A. Did the trial court commit harmful error when it permitted the State to
    define “deadly weapon” during voir dire?
    In his first issue, appellant asserts that the trial court erred when it overruled
    his objection to the State defining “deadly weapon” during voir dire after he had
    elected that the trial court assess punishment.
    Did appellant preserve error on his complaint?
    We first consider whether appellant preserved error on his complaint. In
    conducting voir dire, the trial judge began by introducing the court, the process, the
    parties, and the subject matter of the case. Midway in this first phase, the judge
    read the indictment’s primary paragraph and deadly-weapon paragraph. After
    interacting with the jury panel, the trial court called on the attorneys to introduce
    themselves and to conduct their own voir dire.          At that juncture, appellant’s
    attorney lodged an anticipatory objection to prevent the State from defining the
    term “deadly weapon” during its voir dire examination.            Appellant’s counsel
    argued that because the trial judge would be deciding punishment, the judge also
    should make the fact-finding on the deadly-weapon issue, and thus the matter
    would not be relevant to jury’s consideration.
    The trial court did not immediately decide at which phase the deadly-
    weapon issue would be determined, but the trial court decided regardless that “the
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    State should be allowed to define a deadly weapon is since that appears to be
    relevant to their case-in-chief of burglary of a habitation with intent to commit
    assault.” Appellant’s counsel argued that if the jury was not making a decision on
    the deadly-weapon issue, a discussion about the definition of “deadly weapon”
    would taint the jury determination of appellant’s guilt. The trial court overruled
    the objection but restricted the State from “explain[ing] anything about the special
    issue and that they’re going to get a charge” on the issue, and limited the State to
    “defin[ing] what a deadly weapon is under the law.”
    The State read the Penal Code’s definition of “deadly weapon” and then
    solicited thoughts from the panel about their impression of objects that fit the
    definition.   Appellant’s counsel raised no further objection. Appellant’s counsel
    engaged the panel on a definition using his own hypothetical.
    The State contends appellant did not preserve error on his complaint that the
    trial court overruled appellant’s objection to the State’s discussion of the legal
    definition for “deadly weapon” because appellant did not first object when the trial
    court read the deadly-weapon paragraph to the panel. We presume for the sake of
    argument that appellant timely voiced his objection and preserved error by
    obtaining an adverse ruling from the trial court.
    Did the trial court commit reversible error when it allowed the State to define
    “deadly weapon” during voir dire?
    The trial court has broad discretion over the jury-selection process. Barajas
    v. State, 
    93 S.W.3d 36
    , 38 (Tex. Crim. App. 2002). The trial court abuses its
    discretion when it permits an improper question to be asked. See 
    id. At the
    time of
    his objection, appellant made clear he wanted the trial court to make any
    factfinding on the deadly-weapon issue during the punishment phase, rather than
    have the jury make a finding on this issue during the guilt/innocence phase.
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    Though appellant had elected for the judge to assess punishment, if necessary,
    appellant had not before indicated his preference regarding the deadly-weapon
    factfinder. Nor had the trial court determined or pronounced whether the jury or
    the trial court would be the factfinder on the issue.
    Upon an affirmative finding that a defendant used or exhibited a deadly
    weapon during the commission of a felony offense or the immediate flight from the
    commission of a felony offense, “the trial court shall enter the finding in the
    judgment of the court.” Tex. Crim. Proc. Code Ann. § 42A.054(b), (c) (West
    2017).   The Court of Criminal Appeals has never held that it is improper
    to submit a “deadly weapon” special issue during the guilt/innocence phase of trial.
    See Hill v. 
    State, 913 S.W.2d at 586
    . The high court has stated that
    the better practice is to submit the “deadly weapon” special issue during
    the guilt/innocence phase rather than during the punishment phase. See 
    id. In today’s
    case the indictment contained an allegation that appellant used
    and exhibited a deadly weapon during the commission of the offense. Absent a
    determination that the trial court would be the factfinder on the “deadly weapon”
    issue during the punishment phase, if any, the trial court reasonably could have
    decided that the jury would make any finding on that issue and that the State
    should be allowed to discuss the definition of “deadly weapon” during voir dire.
    Appellant has not shown that the trial court erred in overruling his objection. See
    Hill v. 
    State, 913 S.W.2d at 586
    .
    Twice in his appellate brief appellant characterizes the trial court’s ruling on
    his objection to the State’s voir dire discussion as effectively constituting a
    comment on the weight of the evidence. Yet, nothing in appellant’s brief suggests
    that appellant challenges anything the trial court communicated to the jury, or that
    appellant’s complaint on appeal is that the trial court “commented on the weight of
    the evidence” when it read the enhancement paragraph to the jury. The trial
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    court’s ruling, made in a bench conference to the lawyers, on whether the State
    could discuss the proper definition of a legal term in voir dire is not a “comment”
    by the trial court to the jury.
    Even if we presume error for the sake of argument, we conclude the error is
    harmless. The venire panel already had heard the trial court read the “deadly
    weapon” paragraph early in the voir dire (which appellant does not challenge on
    appeal). And, the trial court took steps to ensure the State did not venture beyond
    a discussion of the definition. See Haley v. State, 
    396 S.W.3d 756
    , 763 (Tex.
    App.—Houston [14th Dist.] 2013, no pet.) (finding no harm where appropriate
    steps were made to keep the panel from making further inferences beyond the
    matter that drew the objection). Thus, even if there were error, no harm resulted
    from it. Accordingly, we overrule appellant’s first issue.
    B. Did the trial court abuse its discretion in denying appellant’s motions for
    mistrial?
    Under his second issue, appellant challenges the trial court’s denial of two
    motions for mistrial he asserted while the State’s witness, Officer Mike Vollert,
    was on the stand. We review a trial court’s denial of a mistrial for an abuse of
    discretion. Ocon v. State, 
    284 S.W.3d 880
    , 884 (Tex. Crim. App. 2009); Crayton v.
    State, 
    463 S.W.3d 531
    , 542 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
    Courts invoke the device of mistrial to halt trial proceedings when they deem the
    error so prejudicial that spending more time and incurring more expense would be
    wasteful and futile. Ladd v. State, 
    3 S.W.3d 547
    , 567 (Tex. Crim. App. 1999).
    Because the law views a mistrial as an extreme remedy, courts grant them only
    when they deem the prejudice incurable and have exhausted less drastic
    alternatives. See 
    Ocon, 284 S.W.3d at 884
    . In determining whether a prejudicial
    event was so harmful as to warrant reversal on appeal, we consider the prejudicial
    effect, any curative measures taken, and the certainty of conviction absent the
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    prejudicial event. See Hawkins v. State, 
    135 S.W.3d 72
    , 77 (Tex. Crim. App.
    2004). When a party requesting a mistrial does not first seek a lesser remedy, a
    reviewing court cannot reverse the trial court’s judgment if the alleged error could
    have been cured by a less drastic alternative. Ocon v. State, 
    284 S.W.3d 880
    , 884–
    85 (Tex. Crim. App. 2009).
    First Motion for Mistrial
    Appellant complains that the trial court abused its discretion when it denied
    his first motion for mistrial after the Officer Vollert testified that the complainant
    reported to him that appellant had “been arrested before and that he’s assaulted her
    before.” Following the officer’s statement, appellant objected (without specifying
    a ground) and then asked for a bench conference. During the bench conference
    appellant’s counsel stated, “We had discussed this in a motion in limine about prior
    arrests.” In the motion in limine appellant had sought to exclude any evidence of
    the prior assaults during the guilt/innocence phase of trial. The trial court had
    granted the motion and required that the State approach before offering the
    evidence.   The   trial court instructed the State to ensure that the witness did not
    discuss “anything about [appellant] being arrested.”
    Following the bench conference, without asking for any curative measure,
    appellant immediately moved for a mistrial, asserting the State had violated the
    trial court’s in limine order. The trial court then opted to instruct the jury to
    disregard the officer’s statement. The trial court did not rule on the motion for
    mistrial. Appellant did not re-urge his motion for mistrial after the court instructed
    the jury to disregard or otherwise request a ruling on his motion for mistrial.
    Because appellant failed to secure an adverse ruling on his first motion for
    mistrial, he failed to preserve the complaint for appellate review. Flores v. State,
    
    871 S.W.2d 714
    , 723 (Tex. Crim. App. 1993) (concluding that appellant did not
    preserve error as to the denial of his motion for mistrial because he did not get an
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    adverse ruling on it). Even had appellant preserved error, we could not conclude
    the officer’s comment was so harmful that the trial court would have abused its
    discretion in denying the first motion for mistrial.
    Second Motion for Mistrial
    Also under his second issue, appellant complains that the trial court abused
    its discretion by failing to grant his second motion for mistrial when the State,
    through Officer Vollert, misrepresented that the complainant/sister saw appellant
    kick in her front door.
    The testimony that prompted appellant’s second motion for mistrial began as
    the State asked Officer Vollert about what the sister told him concerning the
    condition of the front door when she first arrived home from work. Shortly before
    appellant lodged the second motion for mistrial, the jury heard the following
    testimony from the officer:
    Q. Looking back at State's 4, did she [complainant-sister] mention to
    you in any way how or why the piece of wood from the doorjamb was
    on the inside of the house?
    A. Yes, sir.
    Q. What was that?
    A. She stated that when she came home, the door had been kicked in
    or that she observed the door to have been kicked in.
    Q. Did she kick in the door?
    A. No, sir.
    Q. Who kicked in the door?
    MR. CASTRO: Objection, Your Honor.
    Q. (By Mr. Cicconetti) If you know.
    A. She stated that Alberto Palacio kicked in the door.
    MR. CASTRO: Objection again as to hearsay, Judge.
    THE COURT: I'm going -- he's already asked and answered the
    question. I'm going to overrule the objection.
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    MR. CASTRO: He also said earlier that when she got there --
    THE COURT: Just one second. Do not testify. Do you need to
    approach the bench?
    MR. CASTRO: Yes, please.
    Although Officer Vollert never testified that the sister saw appellant kick the
    door in, at the bench conference, the trial court recognized the concern that the
    officer’s testimony suggested the sister had personal knowledge that appellant had
    kicked in the door. The trial court inquired among the lawyers about the sister’s
    personal knowledge, and the prosecutor represented to the trial court that the sister
    actually saw appellant kick in the door. The trial court advised appellant’s counsel
    to address his concerns regarding the sister’s personal knowledge in cross-
    examination when the sister took the stand. Appellant requested an instruction to
    disregard, which the trial court implicitly refused when it stated in response, “I’ve
    already overruled the objection.” Appellant then moved for a mistrial, and the trial
    court denied the motion.
    Presuming, without deciding, that the trial court erred in overruling
    appellant’s hearsay objection, and presuming, without deciding, that the trial court
    erred in not instructing the jury to disregard Officer Vollert’s testimony that the
    sister told him that appellant kicked the door in, we consider whether the trial court
    abused its discretion when it refused to grant appellant’s second mistrial at the
    close of the bench conference.
    Officer Vollert’s testimony had little prejudicial effect. The State’s burglary
    case did not depend on appellant’s kicking in the door before the sister entered the
    house. The State’s case turned on appellant’s entry during the altercation when
    sister was in the house. The record contains ample evidence showing that
    appellant’s unauthorized entry into the house occurred later. The sister and the
    mother testified to the essential facts necessary to convict appellant. The
    9
    prejudicial effect of the officer’s testimony was relatively low and the certainty of
    appellant’s conviction absent the misconduct was relatively high. See Brown v.
    State, 
    270 S.W.3d 564
    , 572–73 (Tex. Crim. App. 2008) (although there were no
    curative measures, the State did not dwell on the matter, and the evidence of guilt
    included corroborated accomplice-witness testimony); Freeman v. State, 
    340 S.W.3d 717
    , 728–29 (Tex. Crim. App. 2011) (the trial court did not give a curative
    instruction, the comment was brief, there was a lack of prejudice, and evidence
    supporting the conviction was strong). Accordingly, we overrule all complaints
    under appellant’s second issue.
    C. Did the trial court abuse its discretion when it denied appellant’s request
    to charge the jury on assault as a lesser-included offense?
    In his third issue appellant argues the trial court abused its discretion in
    denying his request to include jury instructions on the offense of assault, which
    appellant asserts is a lesser-included offense of burglary of a habitation with intent
    to commit assault.
    The Texas Code of Criminal Procedure provides, “[i]n a prosecution for an
    offense with lesser included offenses, the jury may find the defendant not guilty of
    the greater offense, but guilty of any lesser included offense.” Tex. Code Crim.
    Proc. Ann. art. 37.08 (West 2006). We apply a two-prong analysis to determine
    whether the trial court should have included a lesser-included offense instruction in
    the jury charge. State v. Meru, 
    414 S.W.3d 159
    , 162 (Tex. Crim. App. 2013); Hall
    v. State, 
    225 S.W.3d 524
    , 535–36 (Tex. Crim. App. 2007). In the first prong, we
    compare the elements of the offense as charged in the indictment or information
    with the elements of the asserted lesser-included offense. 
    Meru, 414 S.W.3d at 162
    ; 
    Hall, 225 S.W.3d at 535
    –36. This first prong is a question of law and does not
    depend on evidence adduced at trial. 
    Hall, 225 S.W.3d at 535
    .
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    An offense will be a lesser-included offense if “it is established by proof of
    the same or less than all the facts required to establish the commission of the
    offense charged.” Tex. Code Crim. Proc. Ann. art. 37.09(1) (West 2006). Under
    this statute, an offense is a lesser-included offense of the charged offense if the
    indictment for the greater offense either: (1) alleges all of the elements of the
    lesser-included offense, or (2) alleges elements plus facts (including descriptive
    averments, such as non-statutory manner and means, that are alleged for purposes
    of providing notice) from which all of the elements of the lesser-included offense
    may be deduced. Shakesnider v. State, 
    477 S.W.3d 920
    , 924 (Tex. App.—Houston
    [14th Dist.] 2015, no pet.). If the elements of the lesser-included offense can be
    deduced from facts alleged in the indictment, they need not be pled in the
    indictment. 
    Id. We use
    the concept of functional equivalence to determine whether
    the elements of the lesser offense “are ‘functionally the same or less than those
    required to prove the charged offense.’”        
    Meru, 414 S.W.3d at 162
    (quoting
    McKithan v. State, 
    324 S.W.3d 582
    , 588 (Tex. Crim. App. 2010)).
    Appellant was indicted on burglary allegations consistent with section
    30.02(a)(1) of the Penal Code. The statutory elements of burglary of a habitation,
    as alleged in the indictment, are that (i) appellant, (ii) with intent to commit assault,
    (iii) entered a habitation (iv) without the effective consent of the complainant, the
    owner. See Tex. Penal Code Ann. § 30.02(a)(1). Section 22.01 defines assault as
    (1) intentionally, knowingly, or recklessly caus[ing] bodily injury to another,
    including the person’s spouse; (2) intentionally or knowingly threaten[ing] another
    with imminent bodily injury, including the person’s spouse; or (3) intentionally or
    knowingly caus[ing] physical contact with another person when the person knows
    or should reasonably believe that the other will regard the contact as offensive or
    provocative. The indictment’s primary paragraph does not add facts from which
    11
    any of the elements of assault may be deduced. The burglary indictment, tracking
    the language of 30.02(a)(1), rejects the inclusion of “assault” as a lesser-included
    offense because the intent-to-commit-assault element describes something less
    than a completed assault.
    Other courts conducting the first-prong analysis to decide whether assault is
    a lesser-included offense to a burglary with the intent-to-commit-assault have
    found that it is not. Jacob v. State, 
    892 S.W.2d 905
    , 909 (Tex. Crim. App.
    1995)(holding aggravated assault is not a lesser-included offense of burglary of a
    habitation with intent to commit aggravated assault); Beasley v. State, 
    426 S.W.3d 140
    , 146 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding submission of
    the unindicted charge of sexual assault, which was not a lesser-included offense of
    charged burglary of a habitation with intent to commit sexual assault, caused
    egregious harm to defendant); Turner v. State, 
    528 S.W.3d 569
    , 576–77 (Tex.
    App.—Texarkana 2016, no pet.) (“Because burglary of a habitation with the intent
    to commit aggravated assault and aggravated assault do not involve the same
    elements, no double jeopardy violation clearly appears on the face of the record.”).
    Appellant, arguing his case is distinguishable, urges us to consider the
    indictment’s “deadly weapon” paragraph as part of the greater-inclusive offense
    charged. The indictment alleges appellant “used and exhibited a deadly weapon,
    namely a BROKEN GLASS, during the commission of said offense and during the
    immediate flight from said offense.” Appellant provides no authority, and we have
    found none, to support the notion that an independent “deadly weapon” paragraph
    can be used in conjunction with a primary paragraph for purposes of the lesser-
    included-offense analysis. See Tex. Code Crim. Proc. Ann. art. 37.09.          Even
    presuming that it would be proper to do so, appellant’s analysis is based on a
    misunderstanding of the meaning of “said offense” in the deadly-weapon
    12
    paragraph as “assault” rather than “burglary.”
    Because an assault “is not established by proof of the same or less than all
    the facts required to establish the commission” of burglary with an intent to
    commit assault, the first prong of the lesser-included offense analysis is not
    satisfied.   See Tex. Code Crim. Proc. Ann. art. 37.09(1); Jacob v. State, 
    892 S.W.2d 905
    , 909 (Tex. Crim. App. 1995) (aggravated assault is not a lesser-
    included offense of burglary of a habitation with intent to commit aggravated
    assault). Therefore, the trial court did not abuse its discretion when it denied
    appellant’s request to instruct the jury on assault as a lesser-included offense.
    Accordingly, we overrule appellant’s third issue.
    Having overruled all of appellant’s challenges on appeal, we affirm the trial
    court’s judgment.
    /s/    Kem Thompson Frost
    Chief Justice
    Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.
    Publish — TEX. R. APP. P. 47.2(b).
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