RICHARD NGEH TAWE v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Lang–Miers

Appellant Richard Ngeh Tawe appeals his conviction for aggravated robbery.   In two issues appellant argues that the trial court erred when it denied his motions for mistrial.   We resolve appellant's issues against him and affirm the trial court's judgment.

Background

Appellant was charged with aggravated robbery with a deadly weapon.   Appellant pleaded not guilty by reason of insanity and his case was tried to a jury.   The State's evidence demonstrated that appellant entered a convenience store with a shirt partially covering his face, stabbed two store clerks with a knife, and took money from the cash register.   After leaving the store, appellant threw the shirt and knife into trash cans and entered a nearby restaurant.   A passerby who witnessed appellant leave the store and enter the restaurant called police.   Police responded, went to the restaurant, and arrested appellant.   The State's evidence included videos of the crime taken by the convenience store's security cameras and DNA evidence recovered from the knife and appellant's hands.   The State's witnesses included one of the store clerks, the passerby who called police, and police officers who investigated the crime.

Appellant testified during the guilt phase of his trial about his history of mental illness and about the circumstances surrounding the robbery.   He generally testified that he was “delusional” and “incoherent” at the time of the robbery.   According to appellant, he attacked the men inside the convenience store because he thought they were “spaceship aliens,” and he heard the voice of his deceased father tell him that the men inside the store “were the ones that killed him.”   Voices also told appellant to “jump on the counter real quick” and “take the money.”   Appellant also testified that he was previously found incompetent to stand trial, and was sent to “Vernon hospital” for two months and three weeks before being released back to jail.

On cross-examination, the State challenged the veracity of appellant's insanity defense.   For example, the State questioned appellant about several statements contained in State's Exhibit 40—a psychologist's report opining that appellant is competent to stand trial—in which the psychologist appeared to doubt that appellant was being truthful about his symptoms of mental illness.¹

The trial court included an instruction on the affirmative defense of insanity in the jury charge.   It also included a “Not Guilty by Reason of Insanity” option on the verdict form.   The jury rejected appellant's insanity defense and found appellant guilty of the offense of aggravated robbery as charged in the indictment.

During the punishment phase of trial, the State introduced evidence concerning appellant's prior misdemeanor convictions for possession of marijuana, assault, and evading arrest.   Appellant did not testify or present any other evidence during the punishment phase.   The jury assessed appellant's punishment at 50 years in prison and a $10,000 fine.

Issues on Appeal

In his first issue appellant argues that the trial court erred when it denied his motion for mistrial during the State's closing argument in the punishment phase of trial.   In his second issue appellant argues that the trial court erred when it denied his two motions for mistrial during the State's closing argument in the guilt/innocence phase of trial.   In each instance, the trial court denied appellant's motion for mistrial after sustaining appellant's objection to the State's closing argument and instructing the jury to disregard statements made by the prosecutor.

Standard of Review

Because the trial court sustained appellant's objections 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 appellant's motions for a mistrial.²  Archie v. State, 221 S.W.3d 695, 699–700 (Tex.Crim.App.2007).   Whether a trial court should have granted a mistrial involves most, if not all, of the same considerations that attend a harm analysis.  Id. 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.  Id.;  Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004).

Appellant's Motion for Mistrial During The Punishment Phase of Trial

Appellant's first issue relates to the State's closing argument in the punishment phase of trial.   In his first issue, appellant argues that the trial court erred when it denied his motion for mistrial after the prosecutor commented on appellant's failure to testify.

Relevant Facts

During the State's closing argument in the punishment phase of trial, the prosecutor said, “I submit to you that a person should be given credit if they take responsibility for what they did.”  (Emphasis added.)   Appellant's counsel objected that the State was “commenting on the failure of the defendant to testify.”   The trial court sustained the objection.   Appellant's counsel requested an instruction to the jury to disregard, and the trial court responded, “Jury is instructed to disregard that last comment.”   Appellant's counsel moved for a mistrial, and the trial court denied the motion.   Immediately after the trial court denied the motion for mistrial, the prosecutor essentially explained that when he commented about taking responsibility he was referring to appellant's testimony during the guilt/innocence phase of trial:

Specifically what I'm talking about is when he testified in the guilt-and-innocence phase of this case.   Now, he got up in the guilt-and-innocence phase, when he testified and apologized for what you could see so plain on video.   That would be one thing.

But we still have the guilt-and-innocence phase talking about it wasn't me;  it was the voices, and it was all this other business about the aliens and everything that you guys heard about.

After that explanation, appellant did not object or move for a mistrial.

Analysis

Balancing the three Mosley factors, and even if we assume that the prosecutor improperly commented on appellant's failure to testify, we conclude that any prejudicial effect was not severe.   The trial court also took two curative measures:  it immediately instructed the jury to disregard the comment and instructed the jury in the charge not to consider appellant's failure to testify.   See Archie, 221 S.W.3d at 700 (concluding trial court “sufficiently ameliorated any potential harm” when it sustained defendant's objection and instructed jury to disregard prosecutor's comment concerning defendant's failure to testify);  Weems v. State, 328 S.W.3d 172, 180 (Tex.App.—Eastland 2010, no pet.)  (“Except in the most blatant instances, an instruction to disregard a comment on the defendant's failure to testify will cure any harm caused by the comment.”) (citing Moore v. State, 999 S.W.2d 385, 405–06 (Tex.Crim.App.1999));  see also Hawkins, 135 S.W.3d at 84 (noting appellate court should consider jury charge when analyzing curative measures).   Finally, based on the evidence presented in this case, we conclude that the jury would likely have assessed the same punishment absent the prosecutor's comment.

Appellant argues that our opinion in Sauceda v. State, 859 S.W.2d 469 (Tex.App.—Dallas 1993, pet. ref'd), is “precisely on point” and mandates a new punishment trial.   We disagree.  Sauceda was decided before the Texas Court of Criminal Appeals explained in Archie that, in cases like this, appellate courts should review a trial court's decision to deny a mistrial for abuse of discretion by balancing the three Mosley factors.

We resolve appellant's first issue against him.

Appellant's Motions for Mistrial During The Guilt/Innocence Phase of Trial

Appellant's second issue relates to the State's closing argument in the guilt/innocence phase of trial.   In his second issue, appellant argues that the trial court erred when it denied his motions for mistrial after the prosecutor commented that an “uncalled expert, who had examined [a]ppellant, would have rebutted appellant's insanity claim.”

Relevant Facts

The following exchange occurred at the end of appellant's cross-examination by the State during the guilt/innocence phase of trial:

Q. Not at any point in time did you ever tell anybody this story that we're hearing today until you were found incompetent?

A. Because I had to keep it confidential.

Q. And why is that?

A. Because you say it's the person's story, and I—

Q. When you were being arrested for stabbing two people, you never mentioned a word of it?

A. No, I didn't.

Q. And you've also met with other psychiatrists;  is that right?

A. That's correct.

Q. And, in fact, just as recently as last week, you met with Dr. Lisa Clayton;  is that right?

A. Yes.

Q. And Dr. Lisa Clayton is a trained psychiatrist, is that right?

A. I don't know if that's correct.

Q. At least that's what you understand her to be?

A. Right.

Q. And you met with her for quite a while?

A. Right, for—well, I met with her for about less than five minutes.

Q. Are we going to hear from Dr. Clayton today?

A. I don't know.

After appellant's testimony, the defense rested its case without calling any other witnesses to support appellant's insanity defense, including Dr. Clayton or the psychologist whose report was admitted into evidence as State's Exhibit 40.

The closing arguments in this case centered on whether appellant met his burden to prove by a preponderance of evidence that he was legally insane at the time of the offense.   During the State's closing argument, the prosecutor reviewed the statements contained in State's Exhibit 40 questioning appellant's honesty and argued, “Folks, I submit to you that what you have is a defendant who is not being truthful with you and trying to use the system.”   The prosecutor further argued,

Now, they know her [the psychologist who authored State's Exhibit 40], obviously.   This was their report and they brought her up in their direct examination.   She isn't here to testify.   And why not?   And I submit to you that Dr. Lisa Clayton, another psychiatrist that you know as recently as a couple of weeks ago saw this defendant, who is trained to look for the things that he's testifying that he suffers from—and you have to ask yourself in [sic] one of ‘em, if they know who she is, and they do, they have equal subpoena power, and they do, then why isn't she here?

I submit to you because she would say the same thing.

Appellant's counsel objected to this argument on the ground that “[c]ounsel is arguing outside the record,” and the court sustained the objection.   Appellant's counsel asked the trial court to instruct the jury to disregard the last comment and the court responded, “Jury is instructed to disregard the last comment.”   Appellant's counsel moved for a mistrial, and the trial court denied the motion.   After the trial court denied the motion for mistrial, the prosecutor argued,

You guys are all—you have common sense and you can answer that question for yourselves.   If she was gonna help him out, why isn't she here?   That's their doctor.

Later in the State's closing argument, the prosecutor again raised the subject of the lack of expert witnesses to support appellant's insanity defense:

You also heard that [appellant] met with other doctors.   He had met with a doctor as recently as last week, and we never heard from either one of those.   What? [sic]

Because they don't help out his story, that's why.

Appellant's counsel again objected to this argument on the ground that “[c]ounsel is arguing outside the record,” and the court sustained the objection.   Appellant's counsel asked the trial court to instruct the jury to disregard the last comment and the court responded, “Jury is instructed to disregard the last comment.”   Appellant's counsel moved for a mistrial, and the trial court denied the motion.   After the trial court denied the motion for mistrial, the prosecutor argued, “The only time we heard anything about insanity or any type of mental defect has been from the defendant himself.”

Analysis

We balance the three Mosley factors to decide whether the trial court abused its discretion when it denied appellant's motions for mistrial.   Archie, 221 S.W.3d at 700.   Relying on Williams v. State, 688 S.W.2d 486, 490–91 (Tex.Crim.App.1985), and McKenzie v. State, 617 S.W.2d 211, 218–21 (Tex.Crim.App. [Panel Op.] 1981), appellant argues that “what the prosecutor did here was ‘invent’ a witness on the insanity defense and then tell the jury she would not have supported the defensive theory presented to them.”   We disagree.   The prosecutor did not refer to a nonexistent or hypothetical witness.   Instead, he referred to the psychologist and psychiatrist who, according to appellant, met with appellant before trial.   The State may comment on the failure of a defendant to call pertinent witnesses and may argue that the reason for the defendant's failure was the defendant knew the testimony would be unfavorable.   See, e.g., Albiar v. State, 739 S.W.2d 360, 362–63 (Tex.Crim.App.1987).   Nevertheless, even if the prosecutor's comments were improper, the trial court immediately instructed the jury to disregard them and also included an instruction in the jury charge that “any statements of counsel made during the course of this trial or during argument not supported by the evidence ․ are to be wholly disregarded.”   We presume that the jury followed those instructions.   See Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.1987).   We also conclude that the certainty of appellant's conviction was high absent the State's comments.

We resolve appellant's second issue against him.

Conclusion

We resolve appellant's two issues against him and affirm the trial court's judgment.

FOOTNOTES

FN1. For example, the psychologist's report states, “the veracity of his statements regarding symptoms is somewhat questionable.”   It also states,Although he claimed to have ongoing delusional beliefs about aliens persecuting him as well as continuous auditory hallucinations, if these symptoms are actually present they are not outwardly apparent and do not appear to affect his ability to communicate rationally and make decisions.   It is important to note that none of Mr. Tawe's reported symptoms interfered in communication with the evaluator but rather only were discussed when he was asked directly about them..  FN1. For example, the psychologist's report states, “the veracity of his statements regarding symptoms is somewhat questionable.”   It also states,Although he claimed to have ongoing delusional beliefs about aliens persecuting him as well as continuous auditory hallucinations, if these symptoms are actually present they are not outwardly apparent and do not appear to affect his ability to communicate rationally and make decisions.   It is important to note that none of Mr. Tawe's reported symptoms interfered in communication with the evaluator but rather only were discussed when he was asked directly about them.

FN2. Appellant appears to argue that we should analyze the trial court's denial of his requests for mistrial using the harmless-error standard of review for constitutional error found in Texas Rule of Appellate Procedure 44.2(a).   To the contrary, the court of criminal appeals has explained that when a trial court sustains a defense objection and instructs the jury to disregard, but denies a request for a mistrial, a harmless-error analysis under rule 44.2(a) is improper because the only issue to be decided is whether the denial of a mistrial was an abuse of discretion:Although the Court of Appeals and the parties have approached the issue as one of harm, that is not a correct characterization of the issue before us.   A harm analysis is employed only when there is error, and ordinarily, error occurs only when the trial court makes a mistake.   Here, the trial court sustained the defense objection and granted the requested instruction to disregard.   The only adverse ruling—and thus the only occasion for making a mistake—was the trial court's denial of the motion for mistrial.   Under those circumstances, the proper issue is whether the refusal to grant the mistrial was an abuse of discretion.   Thus, the court of appeals erred in analyzing the error under [rule] 44.2(a).Archie v. State, 221 S.W.3d 695, 699–700 (Tex.Crim.App.2007) (internal brackets and quotation omitted)..  FN2. Appellant appears to argue that we should analyze the trial court's denial of his requests for mistrial using the harmless-error standard of review for constitutional error found in Texas Rule of Appellate Procedure 44.2(a).   To the contrary, the court of criminal appeals has explained that when a trial court sustains a defense objection and instructs the jury to disregard, but denies a request for a mistrial, a harmless-error analysis under rule 44.2(a) is improper because the only issue to be decided is whether the denial of a mistrial was an abuse of discretion:Although the Court of Appeals and the parties have approached the issue as one of harm, that is not a correct characterization of the issue before us.   A harm analysis is employed only when there is error, and ordinarily, error occurs only when the trial court makes a mistake.   Here, the trial court sustained the defense objection and granted the requested instruction to disregard.   The only adverse ruling—and thus the only occasion for making a mistake—was the trial court's denial of the motion for mistrial.   Under those circumstances, the proper issue is whether the refusal to grant the mistrial was an abuse of discretion.   Thus, the court of appeals erred in analyzing the error under [rule] 44.2(a).Archie v. State, 221 S.W.3d 695, 699–700 (Tex.Crim.App.2007) (internal brackets and quotation omitted).

ELIZABETH LANG–MIERS JUSTICE