Diane Marie Musachia v. State ( 2014 )

NUMBERS 13-13-00090-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DIANE MARIE MUSACHIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of DeWitt County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Perkes and Longoria
Memorandum Opinion by Justice Perkes
Appellant Diane Marie Musachia appeals her conviction of possession with intent
to deliver four to two hundred grams of methamphetamine, a first-degree felony. TEX.
HEALTH & SAFETY CODE ANN. §§ 481.102(6); 481.112(d) (West, Westlaw through 2013 3d
C.S.). Appellant pleaded guilty, and the trial court assessed punishment at thirty years
of confinement in the Texas Department of Criminal Justice, Institutional Division. By
two issues, appellant argues: (1) the State breached the plea agreement; and (2) the
State made improper closing argument. We affirm.
I. BACKGROUND
Appellant, appellant’s attorney, and a State prosecutor signed a plea agreement,
whereby appellant agreed to plead guilty in open court in exchange for the State agreeing
not to recommend a sentence of more than eighteen years’ confinement. 1 The
agreement required appellant to “honestly debrief before sentencing and submit to
polygraph at State’s discretion.”
At the plea hearing, the trial court acknowledged the terms and conditions of the
agreement and admonished appellant of her rights. The court explained to appellant the
applicable range of punishment and told her that it was not bound by the plea bargain but
that it would let her withdraw her guilty plea or enter a plea of not guilty if the court decided
against following the plea bargain. Appellant stated that she understood her rights,
options, and the impact of her plea. Appellant thereafter pleaded guilty, and the trial
court set the case for trial on punishment.
During the bench trial on punishment, the State informed the trial court that the
plea bargain was no longer binding because appellant failed to comply with it. The State
explained:
We had originally had a deal with the defendant that if she plead guilty and
fully and honestly debriefed with law enforcement that we would cap the
punishment at eighteen years. I believe all parties are in agreement that
that agreement has not been complied with and that this is just an open
1 The agreed cap on punishment excluded a fine, and the State also agreed to dismiss a pending
state jail felony against appellant.
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sentencing in which the entire range of punishment is available to the court
for its consideration.
If the defendant takes issue with that they can bring it up and we can
discuss it but I believe we’re all in agreement that there is no cap and the
State is not going to be bound by the cap that we had offered had there
been a full and honest debriefing by the defendant.
Appellant did not object or otherwise contest the State’s abandonment of the plea
agreement. Appellant neither objected to the State’s recommended sentence nor the
trial court’s actual sentence. Appellant filed a motion for new trial but did not mention the
State’s noncompliance with the plea bargain as a ground for relief; instead, she only
challenged the punishment as cruel and unusual.
II. PRESERVATION
By her first issue, appellant argues that the State violated the plea agreement by
requesting a sentence of more than eighteen years. Because appellant introduces this
argument for the first time on appeal, we overrule it as unpreserved.
“Preservation of error is a systematic requirement of every appeal.” Moore v.
State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009). Before a party may complain on
appeal, the record must show that the party made the complaint to the “trial court by a
timely request, objection, or motion that . . . stated the grounds for the ruling that the
complaining party sought from the trial court with sufficient specificity to make trial court
aware of the complaint.” TEX. R. APP. P. 33.1(a)(1)(A); see Griggs v. State, 213 S.W.3d
923, 927 (Tex. Crim. App. 2007). Errors related to noncompliance with a plea bargain
must be raised in the trial court to preserve them for consideration on appeal. See
Martinez v. State, 159 S.W.3d 655, 656 (Tex. App.—Corpus Christi 2004, no pet.); Ballard
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v. State, 149 S.W.3d 693, 696 (Tex. App.—Austin 2004, pet. ref’d); see also Stermer v.
State, No. 02-07-00425-CR, 2009 WL 1035237, at *4 (Tex. App.—Fort Worth Apr. 16,
2009, no pet.) (mem. op., not designated for publication); Gloria v. State, No. 13-01-
00367-CR, 2002 WL 1965336, at *2 (Tex. App.—Corpus Christi Aug. 22, 2002, no pet.)
(not designated for publication). The issue may be preserved by objection or, if there is
little opportunity to object at trial, in a motion for new trial. See, e.g., Bitterman v. State,
180 S.W.3d 139, 143 (Tex. Crim. App. 2005) (holding issue of noncompliance with a plea
bargain preserved because appellant raised it in new-trial motion); see also Martinez, 159
S.W.3d at 656 (holding noncompliance issue unpreserved because there was no
objection and the motion for new trial did not raise it); Gloria, 2002 WL 1965336, at *2
(same).
Appellant had multiple opportunities to object but failed to do so. The State
expressly invited appellant to object if she disagreed that the plea agreement was
inapplicable. Appellant failed to object when the State asked for a forty-year sentence,
and her motion for new trial did not assert any noncompliance claim. We overrule
appellant’s first issue as unpreserved. See TEX. R. APP. P. 33.1; Martinez, 159 S.W.3d
at 656; Ballard, 149 S.W.3d at 696; see also Stermer, 2009 WL 1035237, at *4; Gloria,
2002 WL 1965336, at *2.
III. PUNISHMENT ARGUMENT
By her second issue, appellant contends the trial court erred by overruling her
objection to the State’s sentencing argument. Specifically, appellant contends the
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following comments that were made during the State’s closing argument improperly
referenced facts2 outside the record:
Bobby Bell likes to tell a story about the drug dealer that they caught that
had a map of Texas drawn—
....
. . . He [Bobby Bell] likes to make the argument that the map showed
that they had a circle around Jackson County basically reflecting nobody
ought to go into Jackson County, which is pretty good advice if you are
going to be selling drugs. He has a right to be proud of that.
By the same token, DeWitt County has always been extremely tough
on drug dealers. Anytime we’ve tried them they’ve gotten virtually the max
....
A. Standard of Review
We review a trial court’s rulings on objections to argument for an abuse of
discretion. York v. State, 258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref’d); Cole
v. State, 194 S.W.3d 538, 546 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d);
Montgomery v. State, 198 S.W.3d 67, 95 (Tex. App.—Fort Worth 2006, pet. ref’d). We
uphold the trial court’s ruling if it is within the zone of reasonable disagreement.
Espinosa v. State, 328 S.W.3d 32, 38 (Tex. App.—Corpus Christi 2010, pet. ref’d) (citing
Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). The State’s argument
must fall within one of the four permissible areas of jury argument: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) answer to an argument of
opposing counsel; or (4) plea for law enforcement. Freeman v. State, 340 S.W.3d 717,
727 (Tex. Crim. App. 2011) (citing Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App.
2 Bobby Bell is the District Attorney for the adjacent Jackson County.
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2008)); Lopez v. State, 288 S.W.3d 148, 159–60 (Tex. App.—Corpus Christi 2009, pet.
ref’d); see Harris v. State, 996 S.W.2d 232, 237 (Tex. App.—Houston [14th Dist.] 1999,
no pet.) (confirming four “categories apply equally to both the guilt-innocence and
punishment phases of a criminal trial.”). The State may not use argument to introduce
evidence “which is outside the record and prejudicial to the accused.” Borjan v. State,
787 S.W.2d 53, 57 (Tex. Crim. App. 1990) (en banc) (citing Everett v. State, 707 S.W.2d
638, 641 (Tex. Crim. App. 1986) (en banc); Jackson v. State, 529 S.W.2d 544, 546 (Tex.
Crim. App. 1975)).
B. Discussion
The complained-of remark was a plea for law enforcement. Although the story
included facts from outside the record, they were not the type of facts proscribed by law;
the facts were unrelated to appellant and her trial, and they did not prejudice appellant
more than any other plea for law enforcement. See, e.g., Borjan, 787 S.W.2d at 57
(disdaining use of facts that not only come from outside the record but that are also
prejudicial to accused); Everett, 707 S.W.2d at 641 (same). The State’s story invited a
tough-on-crime approach to drug offenses, which is a valid plea for law enforcement.
See Borjan, 787 S.W.2d at 55 (“A proper plea for law enforcement may take many forms,
one of which is to argue the relationship between the [fact finder’s] verdict and the
deterrence of crime in general.”).
Anticipating the foregoing assessment, appellant claims that the State’s argument
was an improper plea for law enforcement because it demanded satisfaction of
community expectations. Cf. Cortez v. State, 683 S.W.2d 419, 420–21 (Tex. Crim. App.
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1984) (en banc) (holding as improper argument premised on public sentiment and desire,
rather than on evidence; and that further invited jury to “lend its ear to the community”
rather than simply being voice of the community). We disagree. The State’s objected-
to comment did not invite the Court to rule in a manner the community demanded or
expected.
Even assuming the State’s argument was improper, we consider it a harmless
error. Improper-argument of this type is a non-constitutional error, which we disregard
unless it affects appellant’s substantial rights. See TEX. R. APP. P. 44.2(b); Freeman,
340 S.W.3d at 728; Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App. 2000) (en
banc). To determine whether appellant’s substantial rights were affected, we balance
the following factors: (1) the severity of the misconduct (prejudicial effect), (2) any
curative measures, and (3) the certainty of punishment assessed absent the misconduct
(likelihood of the same punishment being assessed). See Hawkins v. State, 135 S.W.3d
72, 77 (Tex. Crim. App. 2004) (en banc).
Here, the alleged misconduct was an isolated anecdote supporting a tough-on-
crime plea for law enforcement. The rest of the State’s argument focused on the details
of appellant’s offense and criminal history. No curative measures were taken, but it was
likely appellant would have received the same punishment absent the allegedly improper
reference. Based on the admitted evidence, appellant has an extensive criminal history,
which most likely influenced the trial court’s sentence. See id. at 85. Moreover, the
offense to which appellant pleaded guilty was punishable by five to ninety-nine years’
incarceration. TEX. PENAL CODE ANN. 12.32 (West, Westlaw through 2013 3d C.S.).
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The State requested a forty-year sentence. The trial court’s assessment of a thirty-year
sentence was less than the State’s requested sentence and much less than the maximum
available for the offense. Thus, assuming there was error, on balancing the germane
factors, we conclude the error was harmless. See TEX. R. APP. P. 44.2(b); Hawkins, 135
S.W.3d at 77. We overrule appellant’s second issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 14th
day of August, 2014.
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