Marchbanks v. State
341 S.W.3d 559
Tex. App.
2011

Background

  • Officer Gibson observed appellant steal shirts from a Dillard's, pursued him to a car, and was injured when the car moved while Gibson was hanging on.
  • Shirts valued at $849.83 were recovered and appellant was arrested after a pursuit and struggle.
  • Appellant was indicted for aggravated assault against a public servant and aggravated robbery; he pled not guilty to both.
  • Jury convicted appellant of both offenses and sentenced him to 38 years (assault) and 35 years (robbery).
  • Appellant challenged the denials of two mistrial motions on due process and evidentiary grounds.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Mistrial denial for perjury/brady Marchbanks: State used perjured testimony and delayed exculpatory disclosure. State: corrected perjury by recalling witness; no Brady violation as disclosure aided defense. No abuse; mistrial denied
Mistrial denial for improper jury argument Marchbanks: State's 'jury nullification' remark was improper and denied fair trial. State: argument falls within permissible categories; objection preserved but error not reversible. No abuse; mistrial denied

Key Cases Cited

  • Orr v. State, 306 S.W.3d 380 (Tex.App.-Fort Worth 2010) (abuse of discretion standard for mistrial decisions)
  • Archie v. State, 221 S.W.3d 695 (Tex.Crim.App.2007) (deference to denial of mistrial decisions)
  • Ratliff v. State, 320 S.W.3d 857 (Tex.App.-Fort Worth 2010) (mistrial requires extreme prejudice)
  • West v. State, 121 S.W.3d 95 (Tex.App.-Fort Worth 2003) (deference to trial court in mistrial rulings)
  • Hawkins v. State, 135 S.W.3d 72 (Tex.Crim.App.2004) (limits on when mistrial is warranted)
  • Grotti v. State, 209 S.W.3d 747 (Tex.App.-Fort Worth 2006) (fact-specific analysis for mistrial necessity)
  • Losada v. State, 721 S.W.2d 305 (Tex.Crim.App.1986) (duty to correct false testimony by prosecutorial sources)
  • Ex parte Castellano, 863 S.W.2d 476 (Tex.Crim.App.1993) (prosecutor cannot knowingly use false testimony)
  • Napue v. Illinois, 360 U.S. 264 (1960) (due process prohibits knowing use of false testimony)
  • Franks v. State, 90 S.W.3d 771 (Tex.App.-Fort Worth 2002) (correction of misstatements during trial)
  • Little v. State, 991 S.W.2d 864 (Tex.Crim.App.1999) (timing of disclosure; effective use at trial)
  • Juarez v. State, 439 S.W.2d 346 (Tex.Crim.App.1969) (evidence timing considerations)
  • Proctor v. State, 319 S.W.3d 175 (Tex.App.-Houston [1st Dist.] 2010) (jury argument scope and preservation)
  • Givens v. State, 749 S.W.2d 954 (Tex.App.-Fort Worth 1988) (impeachment evidence and trial strategy)
  • Turner v. State, 87 S.W.3d 111 (Tex.Crim.App.2002) (limits on jury argument content)
  • Coffey v. State, 796 S.W.2d 175 (Tex.Crim.App.1990) (burden on objections re: jury argument)
  • Bouchillon v. State, 540 S.W.2d 319 (Tex.Crim.App.1976) (forfeiture when objections reference outside the record)
  • Curiel v. State, 243 S.W.3d 10 (Tex.App.-Houston [1st Dist.] 2007) (preservation of jury-argument issues)
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