James Keith Crawford v. State ( 2017 )

Opinion issued May 16, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00660-CR
NO. 01-16-00661-CR
———————————
JAMES KEITH CRAWFORD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Case Nos. 1455217 & 1455218
MEMORANDUM OPINION
James Keith Crawford was charged with intent to deliver more than four
grams but less than 200 grams of cocaine, and possession of at least four grams but
less than 400 grams of morphine sulfate. The trial court found him guilty, and
defense counsel and the State agreed to a sentence of 25 years’ confinement in the
Texas Department of Criminal Justice. On appeal, Crawford contends that the trial
court erred by denying his motion for a mistrial based on improper jury argument.
He complains of (1) the prosecutor’s comment on Crawford’s failure to testify; (2)
an allegedly improper plea for law enforcement; and (3) two instances of arguing
outside the record. Finding no error, we affirm.
Background
The Houston Police Department (“HPD”) had conducted surveillance on
Crawford for several weeks and had observed drug-trafficking activity. After
Officer Bryant obtained a search warrant, he and Officer Medrano breached the
door of Crawford’s apartment and observed a person moving in the back room.
Officer Medrano commanded the person, later identified as Crawford, to show his
hands. At that point, Medrano observed Crawford making a throwing motion
toward the bedroom as Crawford moved toward the bathroom. Crawford was the
only occupant of the apartment at the time.
In the apartment’s bedroom, police recovered an 11.90 gram rock of crack
cocaine found lying in plain view on the bed, morphine tablets weighing 10.13
grams concealed in a shaving kit on the floor, and a scale for weighing narcotics.
They also found a jacket with $1422 in small-denomination bills in the pocket, and
a Remington rifle lying under the bed.
2
Officer G. Goines, a 32 year police veteran, assisted with the search. He
observed Crawford throw something down from his hands toward the bed.
Crawford told Goines that Crawford “had a gun under the bed,” and Goines
identified the Remington rifle as the gun he found. Crawford also told Goines that
Crawford had “money in the bedroom,” which could be found on the bedroom
door, “in his jacket.” Crawford reported that he lived in the apartment with a
woman, but Officer Goines could not recall finding any women’s clothing in the
apartment—only large male clothing. He testified that he would have
photographed any women’s clothing if there had been any present.
Officer Bryant, the officer who obtained the search warrant for the
apartment, testified that the presence of a significant amount of small-
denomination bills, the scale, and the firearm indicated that the apartment was a
locale for drug transactions. The State introduced photos of the drugs, the scale,
the firearm and the money that were recovered.
S. Galioto, a forensic analyst at the Houston Forensic Science Center,
testified that lab analysis confirmed that the drugs recovered at the scene were
cocaine and morphine, each weighing more than 4 grams.
Discussion
Crawford contends the trial court erred in denying his motion for mistrial
based on improper jury argument. Crawford points to (1) the prosecutor’s
3
comment on Crawford’s failure to testify; (2) an allegedly improper plea for law
enforcement; and (3) two instances of arguing outside the record. Proper jury
argument must fall within one of the following categories: (1) summary of the
evidence; (2) reasonable deduction from the evidence; (3) in response to argument
of opposing counsel; and (4) plea for law enforcement. Borjan v. State, 787
S.W.2d 53, 55 (Tex. Crim. App. 1990); Madden v. State, 721 S.W.2d 859, 862
(Tex. Crim. App. 1986).
I. Comment on Defendant’s Failure to Testify
Crawford first contends that the State improperly commented on Crawford’s
failure to testify. The State responds that Crawford failed to preserve this
complaint because he did not object to the comment and did not move for a
mistrial until after the jury retired. The State further responds that any error is
harmless.
During closing argument, while referring to Crawford’s statements to the
officers after Crawford’s arrest, the prosecutor improperly commented that
Crawford had not testified during the case:
THE STATE: And he told the officer, “I live there with somebody
named Lisa.” . . . You didn’t get to hear from the Defendant. He
didn’t testify. But you heard him testify through that—
DEFENSE COUNSEL: Your Honor, I object to the Prosecutor’s
statement. Can we approach, your Honor?
4
THE COURT: No, sir. But stay in the record, please. And again,
ladies and gentlemen, you will recall what the witnesses said. What
these lawyers say is not evidence.
After the jury retired to deliberate, Crawford’s counsel moved for a
mistrial:
DEFENSE COUNSEL: Your Honor, I didn’t object during the
State’s argument because I thought that it would highlight the issue.
But she specifically said, “We did not hear from Mr. Crawford.” And
I didn’t want—because I don’t want to bring it back to him, but now
that is such an egregious error, Judge, on the Fifth, Sixth and
Fourteenth Amendments of the US Constitution, Article 1; Section
10.13 of the Texas Constitution, we would as now for—that a mistrial
be declared, Judge . . . .
****
THE COURT: And that has been denied.
****
THE COURT: While, granted, she should have never said that
specifically, the fact of the matter, if you take it all together
contextually, she is talking about the evidence there. She’s arguing
that the evidence, bottom line, speaks for itself. So, that’s why I’m
denying your mistrial motion. You’ve made a bill. But the fact of the
matter was your objection wasn’t preserved.
Commenting on a defendant’s failure to testify violates the freedom from
being compelled to testify against himself contained in the Fifth Amendment of the
United States Constitution and Article I § 10 of the Texas Constitution. See U.S.
CONST. amend. XIV; TEX. CONST. art. I, § 10. Bustamante v. State, 48 S.W.3d
761, 764 (Tex. Crim. App. 2001).
5
Defense counsel did not object to the closing argument based on the Fifth
Amendment right against self-incrimination. Counsel’s general statement that “I
object to the Prosecutor’s statement” did not preserve his Fifth Amendment
complaint for review, both because the objection did not challenge the comment as
a remark on the defendant’s failure to testify and Crawford did not obtain a ruling
on the objection, and because Crawford did not move for a mistrial. See Archie v.
State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) (holding that error was not
preserved regarding complaint about comment on failure to testify because “[t]o
preserve error in prosecutorial argument a defendant must pursue to an adverse
ruling his objections to jury argument.”).
Counsel’s motion for a mistrial after the jury retired was not timely. For a
motion for mistrial to be timely, however, it must be urged as soon as the grounds
for it become apparent. See TEX. R. APP. P. 33.1(a); Griggs v. State, 213 S.W.3d
923, 927 (Tex. Crim. App. 2007). A motion for mistrial made after the jury retires
to deliberate is untimely. Haliburton v. State, 80 S.W.3d 309, 315 (Tex. App.—
Fort Worth 2002, no pet.) (“The objection to the argument and the motion for
mistrial were not made until after the State concluded its argument and the jury
was dismissed to begin deliberations. . . . Because Appellant did not object to the
argument in a timely manner, the trial court did not err in overruling his motion for
a mistrial.”); Weems v. State, 328 S.W.3d 172, 179 (Tex. App.—Eastland 2010, no
6
pet.) (“In this cause, the ground for appellant’s motion for mistrial became
apparent during the prosecutor’s closing argument. However, appellant failed to
move for a mistrial until after the prosecutor had concluded her closing argument.
As such, appellant’s motion for mistrial was untimely and failed to preserve his
first appellate issue for review.”).
In this case, Crawford’s motion for a mistrial was untimely because it came
after the jury had retired to deliberate. Accordingly, we hold that Crawford has
failed to preserve this complaint for appellate review. See id.
Even if counsel had appropriately preserved error, however, Crawford has
failed to demonstrate the error was harmful. In the case of improper jury
argument, the Texas Court of Criminal Appeals has declared that the appropriate
test for determining whether a trial court abused its discretion by denying a motion
for a mistrial is a tailored version of the Mosley test. See Archie, 221 S.W.3d at
700; Hawkins, 135 S.W.3d at 77 (discussing Mosley v. State, 983 S.W.2d 249,
259–60 (Tex. Crim. App. 1998)). In applying this test, we balance three factors:
(1) the severity of the misconduct (the magnitude of the prejudicial effect of the
prosecutor’s remarks); (2) the measures adopted to cure the misconduct (including
the efficacy of any cautionary instruction by the judge); and (3) the certainty of
conviction absent the misconduct (the strength of the evidence supporting the
conviction). See Archie, 221 S.W.3d at 700.
7
With respect to the first factor—the severity of the misconduct—the State
referred to the defendant’s failure to testify while highlighting the statements that
Crawford made to police in which Crawford admitted that he lived in the
apartment and that the gun and the jacket with money belonged to him. While the
reference was improper, the prosecutor did not criticize Crawford for not
testifying, but instead sought to focus the jury on the statements he made to police.
The single instance was not an intentional violation of Crawford’s Fifth
Amendment rights. See Mercer v. State, 658 S.W.2d 170, 171 (Tex. Crim. App.
1983) (reference was flagrant where State argued failure to testify showed lack of
remorse); Johnson v. State, 611 S.W.2d 649, 649–50 (Tex. Crim. App. 1981)
(same); Johnson v. State, 05-98-01760-CR, 2000 WL 225640, at *4 (Tex. App.—
Dallas Feb. 29, 2000, no pet.) (mem. op., not designated for publication) (reference
was flagrant where State criticized defendant’s failure to testify). Although the
nature of the constitutional right affected by the prosecutor’s remark was serious,
its prejudicial effect was lessened by the absence of flagrancy and persistency. See
Carballo v. State, 303 S.W.3d 742, 748 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d).
A review of the record for the second factor—the measures adopted to cure
the misconduct—reveals that curative measures were taken. When defense
counsel made the general objection, the trial court reminded the jury that the
8
State’s argument could not be considered as evidence. The court’s written charge
to the jury also instructed the jury that it could not consider, for any purpose,
Crawford’s decision not to testify.
Crawford cites several Court of Criminal Appeals cases for the proposition
that a direct reference to a defendant’s failure to testify generally may not be cured
by an instruction to disregard. See e.g., Montoya v. State, 744 S.W.2d 15, 37 (Tex.
Crim. App. 1987), overruled by Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App.
1996); Gardner v. State, 730 S.W.2d 675, 700 (Tex. Crim. App. 1987). More
recently, however, the Court of Criminal Appeals has observed that this rule
applies only in flagrant cases: “[T]he . . . presumption that an instruction [to
disregard] generally will not cure comment on failure of the accused to testify . . .
has been eroded to the point that it applies only to the most blatant examples.
Otherwise, the Court has tended to find the instruction to have force.” Dinkins v.
State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995); Waldo v. State, 746 S.W.2d
750, 753 (Tex. Crim. App. 1988).
The State’s remark was not so blatant as to render the instruction to
disregard ineffective. See McMillian v. State, 05-99-01424-CR, 2002 WL 15946,
at *3 (Tex. App.—Dallas Jan. 8, 2002, no pet.) (mem. op., not designated for
publication) (prosecutor’s statement that “the only person who could tell you what
9
ultimately caused Ms. McMillian’s death is the person who killed her” could be
cured by jury instruction).
Finally, considering all the evidence, the certainty of Crawford’s conviction
absent the improper comment was great. Officers discovered Crawford making a
throwing motion toward a bed, upon which they later discovered a rock of crack
cocaine. In the same room, officers found a package of morphine tablets, scales,
and a rifle. Crawford admitted that he lived in the apartment, that he had money in
the pockets of a jacket in which $1422 in small-denomination bills were found, and
that he owned the rifle found under the bed. Officer Byrant testified that the
presence of the money, scale, and gun led him to believe that the apartment was
being used to sell narcotics. Chemical analysis confirmed that the drugs were
cocaine and morphine, each in a quantity exceeding four grams.
Balancing the Mosley factors, we hold that the trial court did not abuse its
discretion by denying Crawford’s motion for mistrial.
II. Plea for Law Enforcement
Next, Crawford complains that the trial court erred by overruling his
objection to the State’s plea for law enforcement made during closing argument.
The argument in question follows:
THE STATE: This is about each and every one of you. Because in
voir dire, in testimony you heard a lot yesterday about how drugs are
everywhere. They’re in Katy. They’re in Pasadena. They’re in
Friendswood. They’re in Houston. They’re right outside this
10
building. They’re in our schools. They cause accidents. They cause
violence. It doesn’t—it’s not only in high-crime areas. So, this is
about you. This is about each and every one of your neighbors.
Because if you find him not guilty, if you tell him that being caught
red-handed isn’t enough, you’re telling him to go back out and do this
again in your neighborhood.
CRAWFORD: That’s improper argument. I object to that.
THE COURT: All right. That’s overruled.
A plea for law enforcement is a permissible form of jury argument. See
Borjani¸787 S.W.2d. at 55. A proper plea for law enforcement may include the
relationship between the jury’s verdict and the deterrence of crime in general. Id.
The Court of Criminal Appeals has noted that the State may argue that juries
should deter specific crimes by their verdict and may reference the impact of the
jury’s verdict on the community. Id. at 55–56.
In this case, the State argued that the jury should convict Crawford to
prevent future drug crime in the community and to specifically prevent Crawford
from offending again. Both of these arguments are proper pleas for law
enforcement. See Borjan, 787 S.W.2d at 55–56. We overrule Crawford’s second
issue.
III. Testimony Outside Record
Finally, Crawford complains of two instances in which the State testified
outside the record. The relevant portion of the record follows:
11
THE STATE: You don’t really need DNA when he’s caught in the
bedroom with the drugs on his bed, on the floor, running out of—
CRAWFORD: Objection, your Honor. No testimony that was his
bed, first of all—
THE COURT: Stay in the—I’m sorry. I didn’t mean to interrupt you.
. . . Please stay in the record.
THE STATE: Yes, Judge.
THE COURT: And, ladies and gentlemen, let me tell you something
that I probably should have told you earlier. Nothing that these
lawyers say is evidence. The only evidence that you are to consider is
what came from this chair. All right? Stay in the record. Go ahead.
****
THE STATE: I already talked a little bit about what was happening
behind that door before they busted in to No. 58. Don’t you know he
was sitting on his bed? Don’t you know he was using his phone?
Don’t you know he was using this scale? Don’t you know he was
prepping some deals.
CRAWFORD: Your Honor, won’t—again, I object. There’s no
evidence of that. She’s arguing way outside the record.
THE COURT: Stay in the record, please. And again, ladies and
gentlemen, you’ll recall what the witnesses said.
In order to preserve jury argument error for appellate review, the defendant
must object, request an instruction to disregard, and move for a mistrial. Coe v.
State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984). Crawford did not pursue his
objections to closing argument on this basis by moving for a mistrial.
12
Accordingly, we hold that these complaints are not preserved for appellate review.
Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993).
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
13