MacKenzie Rene Chesney v. State ( 2020 )

AFFIRMED and Opinion Filed April 27, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01464-CR
No. 05-18-01482-CR
MACKENZIE RENE CHESNEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 401-81645-2017 & 401-81646-2017
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Reichek
Opinion by Justice Reichek
Mackenzie Rene Chesney entered open pleas of guilty to intoxication
manslaughter and intoxication assault, both with a deadly weapon, in connection
with a motor vehicle accident that killed one person and injured another. In the
intoxication manslaughter case, the jury assessed punishment at four years in prison.
In the intoxication assault case, the jury assessed punishment at five years in prison
but recommended that appellant be placed on community supervision; the trial court
followed the jury’s recommendation and placed appellant on eight years’ community
supervision. See TEX. CODE CRIM. PROC. ANN. arts. 42A.053(d), 42A.055(a). In a
single issue, appellant argues the trial court reversibly erred by allowing an improper
jury argument. For the reason set out below, we affirm the trial court’s judgments.
Appellant testified that on the night of the accident, she managed a show cattle
company and was at the barn preparing for a county show. Appellant said while
there, she believed she drank four or five beers over several hours. While driving
home on U.S. 75 in McKinney, she remembered she missed a call from her mother.
Appellant said she looked down at her cell phone to return the call and crashed into
a car parked on the highway’s shoulder. Appellant was traveling 68 mph at the time.
The crash killed the driver of the car, Areli Joyner, and seriously injured the
passenger, Mark Garren. Testing subsequently showed appellant’s blood-alcohol
content was .189, more than two times the legal limit.
During punishment argument, the prosecutor stated the following:
[PROSECUTOR]: I want to flip here for Verdict Form Punishment.
This is what we’re really here for today, to determine if this Defendant
deserves punishment or deserves probation for both intox manslaughter
and - -
[DEFENSE COUNSEL]: Object to the connotation that probation is
not punishment, Your Honor.
[TRIAL COURT]: Sustained.
[PROSECUTOR]: We are here to decide if she gets prison time or if
she gets probation as part of this punishment stage. . . .
In her sole issue, appellant complains that the prosecutor’s argument
was improper because it framed the issue as a “choice between either
2
punishing her by sending her to prison, or not punishing her and placing her
on probation.”
After the trial court sustained appellant’s objection, appellant did not
request the trial court to instruct the jury to disregard nor did she move for a
mistrial. Appellant acknowledged as much on appeal but nevertheless asserts
reversal is required because an instruction to disregard would have had no
effect. We cannot agree.
The court of criminal appeals has made clear that before a defendant
“will be permitted to complain on appeal about an erroneous jury argument or
that an instruction to disregard could not have cured an erroneous jury
argument, he will have to show he objected and pursued his objection to an
adverse ruling.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996);
Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App. 2018) (reaffirming
that before defendant can claim on appeal that an instruction to disregard is
inadequate to cure erroneous jury argument, defendant must object and pursue
objection to adverse ruling); Estrada v. State, 313 S.W.3d 274, 303 (Tex.
Crim. App. 2010) (concluding that even if prosecutor’s argument was so
egregious that instruction to disregard could not have possibly cured harm,
“appellant should have moved for a mistrial to preserve this error”).
3
Appellant failed to pursue her objection to an adverse ruling;
consequently, she has waived this issue. Moreover, we note that the jury
recommended community supervision in one of the cases (intoxication
assault); thus, it is difficult to reconcile appellant’s argument with the
punishment verdicts reached by the jury. We overrule the sole issue.
We affirm the trial court’s judgments.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
181464F.U05
4
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MACKENZIE RENE CHESNEY, On Appeal from the 401st Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 401-81645-
No. 05-18-01464-CR V. 2017.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Reichek; Justices Myers and Partida-
Kipness participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered April 27, 2020
5
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MACKENZIE RENE CHESNEY, On Appeal from the 401st Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 401-81646-
No. 05-18-01482-CR V. 2017.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Reichek; Justices Myers and Partida-
Kipness participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered April 27, 2020
6