*1 upon dant’s sentence revocation of commu- ARCHIE, Appellant, Julius
nity supervision, we hold that the facts of underlying offense for which the defen- placed community on supervision dant was Texas, Appellee. STATE tendency would have some to make it more No. 10-04-00153-CR. probable or less that “the best interests society” by a would be served reduced Texas, Appeals Court of Thus, sentence. See Tex.R. Evid. 401. Waco. underlying facts of the offense are relevant Nov. 2005. proceeding. in a revocation Rehearing Overruled Jan. 2006. that, by permitting
Davis аlso contends the State to introduce evidence of the facts offense,
regarding underlying essentially permitted
State was to have sentencing hearings statutory
two without
authority. disagree. We 23(a) 42.12, per article section
Because reducing
mits a court to consider the de revocation, upon
fendant’s sentence this authority for a sec plainly provides
statute “sentencing hearing.”
ond we hold prosecution
that the need not stand mute presents evidence
when the defendant argument justify a reduced sen
and/or Rather, hearing.
tence a revocation may present
State evidence relevant sentencing. Crim. Proc. Tex.Code Cf. 3(a) (Vernon 37.07, Supp. §
Ann. art.
2005).1
Accordingly, we overrule Davis’s sole is- judgment.
sue and affirm the 37.07, 3(a) this stat- agree assertion that Although provides § do with Davis’s article analogy type hearing. evidence rele- apply useful ute does not revocation sentencing hearing, in a we vant to revocation *2 Kuchera, Waco, appellant. A. for
John County McLennan Segrest, John W. Waco, Atty., appellee. for Dist. GRAY, Before Chief Justice Justice VANCE, REYNA. and Justice OPINION REYNA, FELIPE Justice. juryA Archie of convicted Julius (a felony) and misdemean- violence assault punish- or assault. The assessed felony years prison ment at ten year jail for the misdemeanor. and one (1) Archie in two issues that: he contends for the same offense punished twice against double prohibition violation of the (2) the court abused its jeopardy; and denying his motion for mis- discretion phase when during trial on his failure prosecutor commented convictions, affirm the testify. We will for a punishment, and remand reverse punishment hearing. new
Background counts indictment contains three (1) as- aggravated Archie with: charging (2) sault; family violence assault elevated felony by prior family to a During punishment, violence as- the State called a (3) sault; Archie’s, girlfriend unlawful restraint. Gina former Bria Alexan- der, Columbus is the complainant girlfriend, all three and his current Desiree counts, Briscoe, alleged which all were to have oc- Alexander testified *3 curred on the same date. that Archie became violent during their her, relationship, pulled choked and her in light Viewed most favorable to the hair “many” on occasions. She also testi- verdict, the evidence that reflects Colum- up fied that he tied her once with a tele- picked up county bus Archie at the fair cord, closet, phone put her in a put and and drove him in home. Columbus waited top blanket on of her. the car change while Archie went inside to car, clothes. Archie to When returned Briscoe testified that Archie is not vio- began he talking although they gotten argu- with her about a man she lent have previously аgitat- had dated. ments on occasion. denied that he Archie was She has her, ed. He hit ever choked but she did recall one Columbus the head with against occasion when he held her the wall. enough force to cause her head to hit the impact driver’s side window. The left her girlfriend, Archie called a former Bran- head cut bleeding. and dy Dunlap, who testified that she had dat- him years ed for more than five and he changed places Archie with Columbus had never been violent her. Ar- toward began driving. began Columbus chie also called his father who testified dizzy. feel Archie drove to Columbus’s encourage partici- that he would Archie to up. house and tried to clean her He re- if pate anger management counseling he fused allow her to leave. He struck her community supervision. received hair, repeatedly, grabbed her tried to choke her with his arm. He also jury The Archie’s assessed objects tried to choke her with various as indicated above. including a bed sheet and a cable cord. He tied her hands and feet behind her Jeopardy Double
back, foam, up rolled her in sоme stuffed a mouth, teddy bear in put her a sheet over Archie contends in his first issue head, her and left the house. He later by failing that court abused its discretion returned to argue some more with her. require the State to elect which of the on, proceed counts it would two assault He Archie testified his own defense. twice being punished resulted in his which injuries insisted that Columbus sus- for the same offense. tained in the car were accidental. He agreed they fought in her house but when an required “An election is allegations denied the that he had choked indictment commission of a sin alleges the her or restrained in any her manner. gle offers evidence at offense but the State court charged
The on the less- the of trial that the accused committed alleged er-included offense of misdemeanor assault more than once.” Moore v. fense State, aggravated 305, as an (Tex.App.-Waco alternative assault 143 312 S.W.3d ref'd) State, 2004, charge. (citing Scoggan The convicted Archie of the v. pet. (Tex.Crim.App. n. 3 charge, lesser-included assault convicted 799 680 S.W.2d 1990); charged, Brantley him of violenсe assault as v. ref'd)). 2001, pet. (Tex.App.-Waco n.1 acquitted him of unlawful restraint. 322
431 things okay are story; the same Jeopardy Clause of the Double relationship and then prohibits beginning Fifth Amendment1 the State of a downhill, a defendant twice for the and that he punishing things go from start to Pa., up. same crime. See Sattazahn them strangles them and he ties 732, 736, 101, 106, 123 S.Ct. U.S. That That’s what he does. MO. (2003); Lopez v. L.Ed.2d 588 people. from two You’ve heard that now (Tex.Crim.App.2003). 295-96 contrary evidence to the You heard no prohibition this is not invoked Alexander, the second victim. as to Bria pun whеn a defendant is convicted and just That You heard no denial. repeated ished for the commission of accepted.
same offense on distinct occasions. See *4 me, DEFENSE COUNSEL: Excuse State, 149, Campbell v. 149 S.W.3d 155 object I to counsel’s com- Your Honor. State, (Tex.Crim.App.2004); Patterson v. testify ment on the defendant’s failure 2002), 427, (Tex.App.-Austin 96 432 S.W.3d comment, you heard by that that have aff'd, (Tex.Crim.App.2004). 152 88 S.W.3d no denial about that. Here, alleges the indictment and the jury THE that COURT: Instruct (1) separate evidence shows two assaults: they objection sustain the will—I (2) car; assault the assault they instruct the will follow the in the house. the State was not instructions. Court’s election, required to an make and Archie for mis- DEFENSE COUNSEL: Move punished was not for the of- twice same trial on that. based Patterson, fense. See 96 at 432. S.W.3d THE COURT: Overruled. Accordingly, we overrule Archie’s first seriously challenge The State does not issue. Archie’s assertion that the statement at Motion For Mistrial an comment on his issue was erroneous testify. the trial Apparently, failure to Archie contends in second issue court it promptly did not either as sus- the court abused its discretion overrul- Therefore, objection. tained Archie’s we ing рrosecu- his motion for mistrial after a limit our to the issue of whether inquiry tor testify commented on his failure to prejudi- the court’s instruction cured the closing argument during punishment and, if improper cial effect of the comment phase. not, error Archie. whether this harmed punishment After the evidence was con- cluded, punishment the court read the To determine whether the court’s charge jury. Among things, to the other prejudicial instruction cured the effect of instructed the not to con- comment, improper balance “[w]e testify sider Archie’s failure to “for (1) severity three factors: of the mis purpose whatsoever.” (2) effect), (prejudicial conduct curative argument The at issue follows: measures, (3) certainty pun of the I you PROSECUTOR: think have also ishment assessed absent the misconduct (likelihood punishment being of the same respect learned he has no for women. assessed).” State, You from three Hawkins v. 135 S.W.3d have heard women now. 72, you, frighteningly, (Tex.Crim.App.2004). And two of them tell 77 provides pertinent put jeopardy 1. The Fifth Amendment same offence to be twice part, any person subject Amd. V. "nor shall be life or limb.” U.S. Const. 432 2002) (in
Here, similar situa directly (Tex.App.-Dallas com prosecutor tion, jurors instructed specifically mented on Archie’s failure to See court (Tex. State, 537, disregard prosecutor’s improper argument), 931 548 v. S.W.2d Goff (comment (Tex.Crim. it Crim.App.1996) 'd, is direct when 122 794 S.W.3d aff refers to evidence which can come from App.2003). State, defendant); 65 only the v. Graff certainty pun- regard to the With 2001, 730, (Tex.App.-Waco pet. 737 S.W.3d improper assessed absent ishment ref'd) State, (same); Weyandt v. 35 S.W.3d that, comment, we conclude due 144, (Tex.App.-Houston [14th Dist.] 157 case, it strength punishment of the State’s (same). 2000, ef pet.) prejudicial no likely that the same would may a direct comment more
fect of be of the im- regardless have been assessed arising from an difficult to cure than that Hawkins, 135 comment. proper v. 744 Montoya indirect comment. 85; Roberson, at 42- 100 S.W.3d S.W.3d 15, Ro (Tex.Crim.App.1987); S.W.2d (Tex. State, 100 berson v. summary, directly prosecutor ref'd); pet. Barnum App.-Waco testify, failure to commented on Archie’s (Tex.App.-Amaril *5 directly effectively or and the court did not ref'd). However, prosecu the pet. lo disregard improp- this jury instruct the to improp in this persist pursuing tor did not of of the directness er comment. Because Roberson, argument. See 100 S.W.3d er generic comment and the improper the flagran (considering persistence at 42 instruction, hold the we nature of curative conduct). cy prosecutor’s of preju- instruction did not cure the that the very generic The court’s instruction was now comment. We dicial effect the disregard the to and did not direct requires error re- determine whether this fact, the argument. improper the versal. less definitive court’s instruction was even have found inade than another which we commented prosecutor Because the quate. See Veteto S.W.3d testify, failure to the error on Archie’s ref'd) 2000, pet. (Tex.App.-Waeo 811-12 Roberson, at 100 S.W.3d constitutional. the trial courts instructions (“simplicity of re Accordingly, requires the error 43-44. [‘you’ll disregard’] when constitutional beyond a unless we versal “determinen stake ... did not effec guarantees were at the error did not reasonable doubt that prejudice”). tively cure the Id. punishment.” to the ... contribute 44.2(a)). Tex.R.App. P. To assess True, lоng (quoting read court had not before the harm, consider: paragraphs the nineteen we punishment in the instructions contained (cid:127) error; of the source and nature of these in- paragraph one charge, and (cid:127) empha- the State the extent to which jury from plainly prohibited structions it; sized failure to considering Archie’s (cid:127) implications collateral probable punish- the instructions error; response given were not ment (cid:127) juror probably would weight A argument. improper the prosecutor’s it, giving consideration place upon would have been more direct instruction “over- record contains prejudicial whether far to cure more effective whelming supporting evidence improper argument. effect of the Cf. finding question”; 668-69 Brown v. S.W.3d Ar- testimony whether (cid:127) conflicting about harmless declaring the error whether generally with women relationships it chie’s repeat encourage the State would critical issue This is a ended violence. impunity. with determining what jury to consider for a Roberson, at 44. 100 S.W.3d for as- Archie should receive of the was the source prosеcutor The saulting girlfriend. comment, ig- comment and her improper case, cannot we Although this is close Bill of tenets of the nored one of basic that say beyond a reasonable doubt Rights, prohibition the Fifth Amendment’s punish- to Archie’s error did not contribute of an accused against using the silence Tex.R.App. 44.2(a); Rober- P. ment. See prose- against him. See id. Because son, Accordingly, at 45. we once, only she cutor made the comment second issue. sustain Archie’s unduly emphasize did not the error. conviction. judgment affirm the We probable imрlication collateral to be judgment portion of the We reverse from the comment was that Alexan-
drawn this assessing punishment and remand truthfully der testified that her relation- pro- further to the trial court for cause Archie turned violent over time. ship with opinion. with this ceedings consistent Id. 44.29(b) art. PeoC. Ann. Tex.Code CRiM. strength pun- Due to the of the State’s (Vernon Roberson, 100 Supp.2004-2005); evidence, say that the ishment we cannot at 45. jury placed weight improper undue on the (defendant id. had no prior comment. Cf. concurring and Chief GRAY Justice history and put criminal on evidence dissenting.2 him *6 family his would assist with rehabilita- concurring and Justice VANCE community tive services he could on obtain dissenting.3 supervision). GRAY, Justice, concurring Chief
Finally, declaring we examine whether TOM dissenting. denial of mistrial improper the Archie’s encourage
motion harmless will the State convicted of assault Julius Archie was to im- repeat improper argument its with violence, family enhanced. and assault — that it punity. We conclude will not. jail in year to one for He was sentenced improper appears comment here to have years рrison for the assault and to ten been an inadvertent one which was made assault. Be- the enhanced violence unique under the circumstances of this Jeopardy Clause is cause the Double trial. id. particular Cf. in this case and because implicated overruling Ar- trial court did not err summary, In the nature and source mistrial, affirm for I would chie’s motion comment us toward prosecutor’s steer entirety. judgment court’s its the trial that the erroneous de- a conclusion court’s nial of Archie’s motion for mistrial was Jeopardy Double implications hаrmful. The collateral of the issue, con- first Archie argument stating this conclusion improper support court discretion faced with tends the trial abused its as well because was Vance dissents from the affirmance Gray concurs in the affir- 3. Justice Chief Justice judgment of conviction but concurs judgment of conviction but dis- of the mance of the assessing punish- judgment judgment as- the reversal of the sents from the reversal of the sessing ment. punishment. failing require the State to elect and I concur in the affirmance his con- 2 viction. proceed whether to оn count 1 or count
once it became clear that
the State had
Motion for Mistrial
presented
support
the same evidence to
issue,
counts,
In his second
Archie contends
in,
both
which resulted
as Archie
trial court
in overruling
erred
his motion
claims,
being punished
Archie
twice
for mistrial after the State improperly
same conduct.
Archie’s entire
commented on Archie’s
testify
failure to
at
only
argument
is devoted
to the notion
punishment phase
During
the trial.
punished
that he
for
twice
the same
punishment phase,
the trial court sus-
Jeopar-
conduct in violation of the Double
objection
portion
tained an
to a
of the
dy
argument
Clause. This is the
to be
argument which
State’s
Archie character-
addressed.
ized as a comment on his failure to
argues
Archie
that because the court An
given
jury,
instruction was
agreed
and the State
that his conduct was Archie’s motion for mistrial was overruled.
offenses,
charged
the same for both
he was
Although neither Archie nor the State
punished twice for the
Ar-
same offense.
case,
year,
cite this
last
Court Crim
chie mischaracterizes thе conversation be-
Appeals
inal
set the
reviewing
standard for
And,
tween the trial court and the State.
the denial of a motion for mistrial follow
although Archie cites Hawkins for the
ing
objection
improper
sustained
ar
proposition that the
unit of pros-
allowable
gument
punishment phase
of a
trial.
victim,
ecution is the
he fails to make
(Tex.
Hawkins v.
olation of a order conviction and conviction, felony prior dissenting. an assault and one history is a more past conviction. Archie’s the trial court erred agree I
likely length reason for the of the sen- motion for a mistrial and denying Archie’s prosecu- tences than the statement court’s was harmful. the trial error tor. join reversing judgment I Thus its the trial court did not abuse felony aggravat- for assessing punishmеnt overruling motion for discretion Archie’s remanding that cause to the ed assault and mistrial, and his second issue should be trial because the trial court. overruled. created a new of- court’s instruction fense, judgment I also reverse the would Responding to the Dissent as- felony of conviction of violence of Justice Vance majority affirms that Because a sault. dissenting opinion, his Justice Vance judgment, respectfully I dissent. the con opined has that he would reverse object not acknowledge I that Archie did assault-family for violence. As he viction in the and has to the error on he opinion, *8 However, it is appeal. issue on raised the the conviction was not iden would reverse authority to have the well settled we by parties, presented tified much less charge fundamental unpreserved review have been by parties. or briefed We State, 873, v. 70 S.W.3d error. Saldano for us to repeatedly improper that it is told (citing article (Tex.Crim.App.2002) 887 brief, identify, an issue decide of Procedure 169, 36.19 of the Code Criminal State, 180 raised. Neal v. 150 S.W.3d State, 157 State, v. 686 S.W.2d and Almanza 97 (Tex.Crim.App.2004); Gerron v. State, v. 153 (Tex.Crim.App.1984)); Olivas Hailey (Tex.Crim.App.2003); 597 S.W.3d 2004, (Tex. 108, pet. (Tex.App.-Waco 114 State, 118, 121-122 S.W.3d v. 87 S.W.3d filed). time, fundamentally de- jury charge A is may be a There Crim.App.2002). 436 regard it
fective when authorizes conviction for without to whether those individu- conduct which is not an offense. Flores v. together.” als reside Tex. Fam.Code Ann. State, 397, (Tex.App.-Waco (Vernon 2002). 48 402 § S.W.3d 71.003 Section 71.005 ref'd) 2001, pet. (citing Jackson v. composed defines “household” as “a unit of 820, (Tex.Crim.App.1979)). 824 persons together in living the same dwell- Review of the fundamental error in ing, regard they without to whether are this case would not violate the rules about (Ver- § related to each other.” Id. 71.005 procedural default. 2002). non “Conduct does not constitute an offense charge correctly The court’s contained it by unless is defined as an offense stat- both of the above definitions. ute, ordinance, municipal county a order of additionally charged: the court “Member court, commissioners or rule authorized person pre- a household includes a who lawfully adopted under a statute.” viously lived a household.” The trial 1.03(a) (Vernon § Tex. Ann. Pen.Code erroneоusly incorporated court thus 2003). Section 22.01 of the Penal Code definition of a “member of household” un- provides that an assault under that section Family der section 71.006 of the into Code a third-degree felony is if the offense is (Vernon § charge. id. 71.006 a against committed member of the defen- 2002). household, family dant’s or if it shown At appeals least one other court of has on the trial of the offense that the defen- said, 71.006, citing section that the State previously dant has been convicted of such may previous a prove conviction of assault an against assault a member of his or her on a member of a household for purposes 22.01(b)(2) § or household. Id. 22.01(b)(2) by showing the defen (Vernon 22.01(e) Supp.2004-05). Section dant and the victim had in the lived same “family” meaning states that has the as- dwelling before the time of the assault. signed by Family Section 71.003 of the (Tex. 912, Goodwin Code and that “household” has the mean- 2002, App.-Fort pet.). Worth no
ing assigned by Section 71.005 of the Fam- (Vernon 22.01(e) § ily Supp. Code. Id. I nothing legislative find to indicate a 2004-05). expand intent to the definition of “house- incorporate hold” or to the definition оf Family 71.003 of the Code Section “members of a household” section “family” states that includes “individuals ..., Family 71.006 of the Code into section by consanguinity affinity related or legislature If the 22.01 of the Penal Code. spouses individuals who are former of each intended, other, explicitly are so it could have either parents individuals who child, regard chapter without to mar- referenced 71.006 or referred to same Family generally.1 child The stat- riage, parent, and foster and foster Code R.S., 62, Acts, Leg., example, 76th ch. 1. For section 25.07 of Penal section 71.01. Cоde, 15.02, protec- § deals with violations of 1999 Tex. Gen. Laws which orders, "household,” act, legisla- gives "family,” tive the same section of same 42.072(c) “meanings ture amended of the Penal "members of household” the section meanings assigned by Family give as- Chapter Code.” Tex. Code to those terms the 25.07(b)(1) (Vernon signed Family Supp. by "Chapter § Code” and *9 Pen.Code Ann. 1999, 2004-05). legislature Id. deleted the reference to section 71.01. the amended 25.07(b) give again in the section of the section to those three terms the same act, chose, 71, pur- assigned by "Chapter Family lеgislature meanings same the 46.13(f) the poses of 22.01 and of Code” and deleted the statute’s reference to sections
437 “family,” by as defined ing witness ute neither. Section 22.01 of the were does one, plainly only Family Penal refers to and Code section 71.008 of the Code. There one, Family in section the Code to define by related no evidence that the two were purposes the “household” for of section they or or that were both marriage blood By 22.01. section is section 71.005. That parents of the same child. charge trial court to the allowing the language the of sections plain Under using Family a of the not section Code 71.005, and is a member of person 22.01 a by legislature, mentioned court has is a member of person a “household” if the it is a to created a new offense: crime living togeth- composed persons “a unit of assault with whom the for- person a actor regard dwelling, without er in same
merly lived.2 they whether are related to each other.” in When error was not the (emphasis § 71.005 Tex. Fam.Code Ann. subject timely objection to of a the trial added). The witness testified complaining court, only occur reversal will when the offense, that, she at the of the was time egre error “fundamental” and was “so in her house and Archie living mother’s gious such harm and created that the de living was his father’s house. She testi- fendant not had a fair and impartial ‘has ” house, bought that she another fied had State, trial.’ Almanza v. 686 S.W.2d house, in that that she had furniture but (on 157, (Tex.Crim.App.1984) 171 rehear yet that she did not live that house. ing). egregious An error results in harm that Archie There was no evidence was case, very if it of affects the basis anywhere living but his father’s house. deрrives right, the defendant of a valuable that the there was no evidence two or vitally theory. affects a defensive living together dwelling were the same (Tex. 166, Hutch v. 171 at the time of the offense. Crim.App.1996). The harm is determined by charge; considering the entire the state was, however, There evidence Ar- evidence, including of the contested issues had the com- previously chie lived with evidence; and weight probative of the plaining complaining witness witness. counsel; the argument other testified that Archie moved with her and information relevant rеvealed the rec unspecified period lived with her an for ord as a whole. Mann v. 964 into her time before she moved mother’s 639, (Tex.Crim.App.1998). This only house. is the evidence Archie trial, Considering the evidence I do having and the ever complaining witness not could believe that Archie been have together. lived convicted of violence assault if the charged correctly. the court’s erroneous instruc- had been There is Without no and the complain- evidence that Archie tion that “member of a household” includes Code, "family” by given meanings specific under the Penal to define reference to were 71.005, Family under 71.003 of the respectively. definition sections 71.003 and Id. Code. Family Section 71.006 of the Code then existence, legislature legislature assign Also in amended sec- did not but 22.01(b)(2) (now 22.01(b)(3)) tion section a definition "member of household” or only include members of the defendant's refer section 71.006. Id. family but also the defendant's household.
Acts, R.S., 1,§ Leg., ch. Tex. 76th Family 2. Code does not Section 71.006 of "Family” Gen. Laws specify when the actor contain time limit or given meanings "Household” were not together. complainant must have lived assigned generally, by Chapter rather but *10 persons previously in a who lived house-
hold, a rational could have con-
victed Archie of the offense of vio-
lence assault. the error “affects the
very basis of the case” and is “fundamen- Hutch, “egregious.”
tal” and
at 171. jury charge
Because the was fundamen-
tal error and Archie was harmed
error, I judgment would also reverse the (en-
of conviction of family violence assault
hanced) and remand that cause for a new
trial. KEARNEY, Appellant,
Mark J. Texas, Appellee.
The STATE of
No. 10-04-00096-CR. Texas, Appeals
Court
Waco.
Nov. notes issue which