### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03- 07 -00 117 -CR

Jo nat han W ill iam s , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF HAY S COUNTY , 22ND JUDICIAL DISTRICT NO. CR-05 -28 0 , HO NORAB LE WI LLIAM HENRY , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
A j u r y c o n v i c t e d

a p p e l l an tJ o n a t h anW i l l i a m s o f m u r d e r an d s e n t e n c e d h i m t o f i f t yfi ve y e ars ’ i mpr iso nme nt. On a pp e a l, h e c omp la ins that th e tr ia l c ourt sh ou ld h a ve gran ted his motion for a mistrial following the State’s re fer ence to evidence ear lier ruled to be inadmissible and that hi s st a te me nts to a

po lic e offic e r s ho uld

have be e n r

ule d in a dmi ssi ble be c a

us e he wa s c le a rl y in custody

at the time he made the statements. We af firm the trial c ourt’s judg ment of convic tion. Appellant wa s char g ed with murder ing Mic hell Webb, whom he had be en datingfor a number of y ear s. Webb was repor ted missing by

her f amily on November

17, 2003, afte r her

fathe r found her car in a Wal-Mart parkinglot in Bexar County . A San Antonio police off icer questioned appellant a

bout Webb’s disa p p ea ra n ce, a nd appellant sa id he did not know wher e she w as. The office r noticed a

small abrasion unde r app el l an t ’s left ey e, and a ppellant said his nephew had
scratched him while they wer e wre stling. Although appellant did not raise the office r’s suspicions2

related to Webb’s disappea ranc e, he wa s arr ested due to unrelate d outstanding w arr ants and broug ht befor e a ma g istrate; he wa s still in police custody when he eventua lly led t he poli ce to Webb’s body
on No ve mbe r 2 0, 20 03 . O n N ov e mbe r 1 9, 20 03 , th e po lic e fo un d We bb ’s ke y s a nd c re dit c a rd in a close t at the ca

r wa sh where appellant wor ked. That sa

me day , while appellant was still in custody f o r th e u n r e late d w ar

r an ts , D e te c ti v e T im A n g e ll in te r v ie w e d a p p e ll an t, te ll in g a

p p e llant he was inquiring into Webb’s disappea ranc e and r eadinghim his st atutory rig hts. Appellant initially denied knowing any

thing a bout Webb’s where abouts, but after Angel l s ai d that the police we re fi ng e rp ri nti ngWeb b’ s v e hic le and ha d reco vere d a v ide ota pe fr om t he Wal -M art

pa rk inglot , a pp e lla nt sa id that on

No ve mbe r 1 6, 20 03 , We bb , w ho m he ha d b e e n d a tin g fo r f our y e ars , to ld h im she “ne eded to g et awa

y .” Appellant said that at Webb’s reque st, he dropped he r off at the air port at about midnight, lef

t her ve hicle in the parking lot, rode his bike home, and the n lied to Webb’s pare nts when they

called lookingfor her. Ang ell ty ped appellant’ s statement as a ppellant spoke a

nd
a sk e d a pp e lla nt t o r e a d a

nd sig n th e state me nt, wh ic h in c lud e s a po rt ion se tti ngou t a

pp e lla nt’ s r ig hts
. Ap pe lla nt i nit ia le d n e xt to e a c h o f h is s ta tut or y ri g hts and

sig ne d th e state me nt. On Novembe r 20, 2003, De tecti v e B a r n e y Wh it s o n in te r v ie wed a ppellant ag ain about Webb’s disappea

ranc e. During the course of the day , appellant g ave three differ ent statements, ea ch of which w as ty

ped on a f

orm that rec ited appellant’ s statutory rig hts, included a stateme nt that appellant unde rstood and wa ived his rig hts, and was rea d and si g ned by appellant. B efor e appe llant g ave his fir st statement, Whit son also rea d him his rights and had appellant initial a diffe rent for m from which Whitson read appellant’ s rig hts. A ppellant’s first stateme nt was similar to the story he told Ange ll, but when Whit son said he thoug ht Webb had scratched a ppellant’s fa ce a

nd sug g ested3

that D NAe vid e nc e c ou ld inc ri min a te a pp e lla nt, a pp e lla nt g a ve a se c on d s ta te me nt i n w hic h h e sa id members of

the Mexican Mafia

to whom he owed mone y had take n Webb. Whit so n a g a in t old

a pp e lla nt t hat he did no t be lie ve his state me nt a nd inf or me d h im that the police ha d found blood inside Webb’s car and “that not only

did [ appellant] have a

scratch
un de r h is l e ft

e y e , h is r ig ht e y e wa s a lso sc ratc he d a nd it l oo ke d li ke [Web b] wa s tr y ing to g ou g e his ey es out.” Appellant then g ave a third statement admitting to killing Webb. Appe llant said Webb was upset be cause he told her he “just wanted to be friends,” so he and Webb dr ove ar ound in her
car , smoked marihuana , and argued. Acc ording to appellant’s state ment, Webb lunge d at him and
scratched his fa ce, and he “held her aga inst my chest to kee p her f

rom hitting me” and to ca lm her. Appellant h el d W ebb unti l she stopped moving a nd then re alized he had suff ocate d her. H e
unsucce ssfully

tried to resusc itate her

and then dr ove her

body to a nother location, wher e he sta y ed fo r a bo ut f our h ours , “ dr ink ingbe e r, smo ki ngwe e d a nd ho ldi ngMic he ll. Iwa s a po log izin g to Michell.” He said, “I don’t want to say wher e I put Michell but I ’m willing to s how y ou wher e she is.” Appellant e ventually g uided Whits on to Webb’s body in a field in Ha

y s County
. I n his first issue, appellant argues that the trial court should ha ve g rante d his moti on fo r mi stria l a ft e r t

he State re fe rr e d d

ur ingc los ingargume nts in t he g uil t/i nn oc e nc e ph a se to tox icolog y

tests perfor

med on Webb’s body . We disag ree . Dr. Kimberley Molina, medical e x aminer f or B exar County , testified that Webb was strang led, althoug h on cross-e x amination, she admitted that there might have been a “combination” of str angulatio n a

nd smo the ri ng , a s de sc ri be d by a pp e lla nt. Th e State a sk e d M oli na a bo ut t he re su lts of tox icolog y

tests perfor

med on Webb, but defe nse counse l objected that the a nswer w ould be4

hear say beca use Mol ina di d not personally conduct the te sts. The trial cour t sustained the objection, and the State sa id, “My

only conc er n is they ’ve le ft a fa lse impression with the jury beca use the defe ndant is saying she took drug s with him and I ’m sure that they ’re g oing to g et up and argue that
s h e wa s d o i n g t h i s an d t h at an d s ay i n g b ad t h i n gs ab o u th er . . . . ” Lat er

i nt h e S t at e’ s qu es t i o n i n g, Mo lin a te sti fi ed th at a lc oh ol o r a no the r d e pr e ssa

nt m ig ht s low

a vic tim ’s re sp ir a tio n s uc h th a t “ it would take less e ffor

t” to smother or stra

ng le her . The State a sked whe ther drug s or alcohol we re found in Webb’s sy stem, appellant objec ted ag ain, and the tr ial court sustained the objection.

I n the State’s initial closing statement, the prose cutor did not ref er to whe ther Webb had used ma

rihuana . I n his closing, a ppellant’s counse l argued that i t wa s m o re likely that the Mexi can Ma fia ha d killed Webb or, alternat i vely , that appellant killed her acc identally . He sa id, “The medical ex aminer also said that if y ou had a combination of say alcohol and ba

rbiturates a

nd
someone starts strang ling y ou, it would take a lot less pressure to c ause the injury .” He then said,

“ What if y ou ’r e takin g e c sta sy

and mari jua na and wh isk y and I c e Ho us e or

wh a te ve r e lse that th e se y oung people we re doing , whateve r else the y wer e doing

—they had bee n toge ther a long time, they know ea ch other .” He went on to say that the W ebb family was “blessed” beca use t wo of their three children “ went on and beca me productive citizens, but Michell was a littl e wild.” Still later he said, “He ’s a y oung black man, he’s dating a white g irl, they may be doing some kind of drug s toge ther, alcohol tog ether .” On r ebuttal, the prose cutor attempted to counter defe nse counsel’s arguments and then said, “A nd there ’s bee n no evidenc e admitted to y o u t h at t h er e was any drug s in Michell’s sy stem. As a matter

of fa ct, when I asked Kim Molina about the toxi colog y , who objecte d and kept it o ut? [De fe ns e c ouns e l]. D on ’t y ou kn owthat if the re is a

ny thi ngthat he lpe d h is c a se , h e wo uld5

have le t that in.” Def

ense c ounsel objecte d, and the tria l co u rt sustained the objec tion. Counsel
a sk e d f or an in str uc tio n to dis re g ard , w hic h th e tr ia l c ourt g ra nte d, and the n a sk ed for a

mis tr ia l, which the c ourt denied.

We reviewa trial c ourt’s refusal to gra nt a mistrial for an a

buse of discr etion, and mistrial is required “ [o] nly in ext reme circ umstances, whe re the prejudice is incurable.” Hawkins

v . S tat e , 135 S.W .3d 72, 77 (Tex. C ri m . Ap p . 2004). “Amistrial is t he trial c ourt’s re medy for improper c onduct that is ‘so prejudicia l t h at ex p en d iture of f urther time a

nd expense would be wastef ul and futile.’” Id. (q u o t i n g Lad d v . S tat e , 3 S
. W
. 3 d

5 4 7 , 5 6 7 ( T e x . C r i m . A p p . 1 9 9 9 ) )
. In
our re view, we consid er t h re e factors: “(1) sever ity of the misconduct ( the mag nitude of the prejudicia l effe ct of the pr osecutor’ s remar ks), (2) me asure s adopted to cur e t he misconduct (the eff icac y of any cautionar y instruction by

the judg e), a

nd (3) the c erta inty

of convic tion absent the misconduct (the stre ng th of the evidence supporting the conviction).” Mo sle yv . S tat e , 983 S.W .2d 249, 259 (Tex. Crim. App. 1998).

I nitially , we note that the prosec u t o r’ s s tatement mig ht be viewe d as invited by defe nse counse l’s repe ated statements that Webb ha d been dr inking a nd using dr

ug s, both in ge nera l and on the ni g ht she was killed. Se e Ne the ry v . S tat e , 692 S.W .2d 686, 703 (Tex. Crim. App. 1985) (four proper are as of jury

argument are summation of evidenc e, re as o n able de ductions from
e vid e nc e , a

ns we r t o d e fe ns e argume nts , a nd ple a fo r l aw e nf

or c eme nt); se e als o Lo ng v . S tat e , 823 S.W .2d 259, 269 (Tex. Crim. App. 1991) (prose cutor’s statement that defe ndant c o u l d h ave provided jury with mitig ating evidenc e was invited by defe nse counse l’s statement, “I don’t know what his mental state wa s in 1983 in B ay City , Texas. Iwasn’t ther e and w e we ren’ t there . . . .” ).6

E v en i f w e a s s u m e t h at th e p ro s ec u t o r’ s s t at em en tt h at t h er e w as n o ev i d en ce re l at edt o t o x i co l o gy results was not invited, we hold that any err or was cure d by the trial cour t’s instruction to the jury to disreg ard. See B ow er v. Stat e , 769 S.W .2d 887, 907 (Tex. Crim. App. 1989) (“Or dinarily , any inj ur y fr om i mpr op e r j ur

y argume nt is obv ia te d whe n th e c ourt ins tr uc ts the jur

y to d isr e g ard , unle ss the re mark is so inflammatory that its prejudicial ef

fec t cannot re asonably

be re moved by

such an admonishment.”). When we consider the brevity of t h e prose cutor’s r emar k, the trial cour

t’s sustaining of appellant’ s objection and instruction to disreg ard, and the ove rwhe lming we ight of the
e vid e nc e of

a pp e lla nt’ s g uil t—s uc h a s a

pp e lla nt’ s untr ue state me nts , h is e ve ntu a l c on fe ssion , his knowledg e of the l ocation of Webb’s body , and the medical examiner’s testimony that Webb was strang led and pr obably

not smothered—we hold that the t rial court did not err in denying a ppellant’s motion for mistrial. See M osley , 983 S.W .2d at 259. We overr ule appe llant’s first issue. I n his second issue, app el l an t argues that the trial c ourt should not have allowe d testimony during the g uilt/i nnocenc e phase by San Antonio Police Offic er D ary l Volkmann about
a state me nt a

pp e lla nt m a de a ft e r We bb ’s bo dy wa s d isc ov e re d. Ap pe lla nt ar g ue s tha t “ [a]t t

he tim e that th e vic tim ’s bo dy

wa s f ound , th e Ap pe lla

nt w a s und e r t

he imp re ssi on

tha t he wa s und e r a

rr e st for the tr aff

ic war rants” and t hat “[ a]t no ti me was the Appellant told that he wa s under a rre st for the murder of [Mi chell] W ebb.” We disag ree . After appellant g ave his third statement, Whit son, appellant, a nd two other de tectives drove out to find Webb. After her body was located, V olkmann and his partne r we re a sked to drive appellant ba ck to San Antonio. Volkmann testified that when they arr ived bac k at the police station, appellant a sked without any prompting “ how much time did Ithink he would rec eive f or the murde r7

of [W ebb]. He stated , ‘A ft er a ll, I confe ssed to killing her .’” V olkmann had not himself re ad appellant his rig hts or informed him that he wa s u n d er ar re s t for Webb’s murde r bef ore a ppellant
ma de the state me nt.

Although the re w as no testimony of whe n appellant was expli citly told that he was
un de r a rr e st f or Web b’ s murd e r, he wa s tol d a t le a st f our t ime s th a t he wa s b e ingqu e sti on e d w ith
re g ard to h e r d isa

pp e ara nc e ; w a s r e a d h is r ig hts a t le a st twi c e ; si g ne d o ne fo rm re c iti nghis ri g hts to ind ic a te that he und e rs too d his rig hts ; sig ne d one fo rm tha t als o re c ite d his r ig hts , in iti a lin g ne xt to
eac h rig ht; and rea d and signe d his thre e wr itten statements, all of which r ecited his rig hts and stated that he under stood and waive d his rights. B efor e he g ave his fir st statement to Whi tson, W hitson informed a

ppellant that he wa s being questioned with r eg ard to Webb’ s disappear ance , and bef ore his second and third statements, he was also informed about the s tate of the evidenc e discove red thus f ar . A p p e l l an te v e n tu a l l y g a v e a s t a t e m e n ta d m i t t i n g t o k i l l i n g W e b b an d l e d t h e p o l i c e t o h e r

b o dy. Not until appellant had bee n driven ba ck to the police station in San Antonio in handcuff s and leg irons did he make the s tatement about which he c omplains. I t is bey ond rational be lief that appe llant might have still been unde r the impression that he w as only in custody

for outstanding war

rants or might somehow not ha

ve rea liz ed that the focus of the office rs’ interest in him had shift ed from outstanding war

rants to Webb’ s murder. Fur ther, Volkmann testified that appellant voluntee red the question without any

prompting or

question i n g, and ther efor e it was not the re sult of custodial interrog ation. See T ex . C o d e C rim. Proc. Ann. ar t. 38.22, § 5 (West 2005) (nothing pr eclude s admi s s io n o f s tate me n t “ th a t d o e s n o t s te m f r o m c u s to d ia l in te r

r o g a ti o n , o r o f

a voluntary statement” ); Ru th v . S

tat e , 167 S.W .3d 560, 570-71 (Te x . App.—Houston [14th Dis t.] 2005,8

pet. re f’d) (volunteer ed stateme nt made to police office r without pr ompting by police interr og ation
was a dmissibl e). We ove rrule a ppellant’s sec ond issue. Havingoverr

uled both of appe llant’s issues, we a ffirm t h e t ri al cour t’s judgme nt of convic tion.

__ _ _ _ _ _ _ _ __________________________________ David Pury ear , J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: June 18, 2009 Do No t Pu

bli sh