Palacio v. State

580 S.W.3d 447

Alberto PALACIO, Appellant

v.The STATE of Texas, Appellee

NO. 14-17-00512-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed June 27, 2019

Discretionary Review Refused October 23, 2019

Leah M. Borg, Houston, TX, for Appellant.

Clinton Morgan, Houston, TX, for Appellee.

Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.

Kem Thompson Frost, Chief Justice

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 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 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. 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 581, 586 (Tex.Crim.App. 1996). 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 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)....