MODIFY, REFORM, and AFFIRM; and Opinion Filed June 25, 2013.




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-12-01040-CR

                            SHANE DONOVAN KEYS, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 3
                                   Dallas County, Texas
                            Trial Court Cause No. F11-45726-J

                                MEMORANDUM OPINION

                       Before Justices Moseley, Bridges, and Lang-Miers
                                Opinion by Justice Lang-Miers

       Appellant Shane Donovan Keys was charged with aggravated robbery with a deadly

weapon. He pleaded guilty and a jury assessed punishment at 25 years in prison and a $7,500

fine. Appellant raises two issues on appeal arguing that the trial court abused its discretion when

it overruled appellant’s motion for mistrial and that the judgment should be modified to

accurately reflect that appellant pleaded guilty. We modify the trial court’s judgment to reflect

appellant’s guilty plea and affirm as modified. We issue this memorandum opinion pursuant to

Texas Rule of Appellate Procedure 47.4 because the law to be applied in this case is well settled.
                                            BACKGROUND

       During the punishment phase of appellant’s trial the State introduced into evidence

without objection judicial confessions and stipulations of evidence from a total of four

aggravated robberies, including the aggravated robbery in this case. The State also introduced

into evidence without objection appellant’s judicial confessions relating to two prior convictions

for possession of marijuana. With respect to the armed robberies, appellant’s codefendant

Lacorey Birdow testified that he and appellant robbed between 10 and 15 women of their purses

over about a two month period. Each time, Birdow drove appellant around until they found a

woman getting out of her car alone. Most of the time, after they found a target, appellant would

leave the car by himself and return with the woman’s purse. The robberies were “an adrenaline

rush” to appellant and he was “very happy” when he returned to the car with the purses. Birdow

testified that he and appellant committed the robberies because it was “fast and easy.” They used

the money from the robberies for “[g]as and liquor and weed.” Birdow was caught by the police

after pawning some items belonging to one of the robbery victims. He confessed to the robberies

and identified appellant as his accomplice.

       In this case appellant pleaded guilty to the aggravated robbery of Glynette Dilworth.

Dilworth testified that she returned home from work late one evening and was approaching her

front door when a man approached her carrying a baseball bat and wearing a bandana over his

face. The man repeatedly demanded her purse and she decided to hand it over to him. The

robbery left Dilworth constantly afraid for her safety, especially at night.       In addition to

Dilworth, the women whose purses were stolen in the other armed robberies to which appellant

confessed also testified for the State, including one who testified that she was struck five or six

times with a baseball bat when she did not let go of her purse, and one who testified that a knife

was put to her throat during the robbery.


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        Appellant’s counsel called three witnesses to testify during the punishment phase:

appellant’s best friend, appellant’s mother, and appellant. Appellant’s best friend and his mother

generally testified that appellant deserved probation because he came from a good family, did

not have a violent or criminal past other than marijuana use, and was a good person and student

whose demeanor changed after his cousin was murdered and other members of his family died.

        Appellant testified that he was a good student and was halfway through earning a degree

in electrical engineering when he was kicked out of school for marijuana possession. Appellant

took responsibility for the robberies and the only testimony he disputed was the testimony about

him using a knife in one of the robberies. Appellant testified that it was a screwdriver that “may

have been misconcepted [sic] as a knife.” At the time of the robberies he felt “lost” and was not

himself. He asked the jury for a second chance.

        After the close of the evidence the jury was instructed on (1) the range of punishment of

5 to 99 years with a fine not to exceed $10,000, and (2) the availability of community

supervision. The jury returned a verdict sentencing appellant to 25 years in prison and a $7,500

fine.

                             APPELLANT’S MOTION FOR MISTRIAL

        In his first issue appellant argues that the trial court abused its discretion by overruling

appellant’s motion for mistrial.

        Appellant’s complaint on appeal arises from the following exchange during the State’s

questioning of Birdow:

        Q.     And you currently have five cases of aggravated robbery pending
               against you; is that correct?

        A.     Yes, sir.

        Q.     And you also have one in Collin County; is that right?



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A.   Yes, sir.

Q.   Same cases, same victims as [appellant]; is that correct?

A.   Yes, sir.

Q.   And you’ve already pled guilty to those; is that correct?

A.   Yes, sir.

Q.   And you are going to go open to the judge for punishment; is that
     correct?

A.   Yes, sir.

Q.   So you’ve accepted responsibility for your involvement?

A.   Yes, sir.

Q.   And I’m also the prosecutor on those cases as well; is that correct?

A.   Yes, sir.

Q.   And you understood that your pretrial recommendation was 30
     years.

A.   Yes, sir.

Q.   And we haven’t had any—

     [Appellant’s Counsel]: Judge, objection.

     THE COURT: Objection sustained.

     [Appellant’s Counsel]: May we approach the side of the bench,
     please?

     THE COURT: Yes.

     (At the bench, off the record.)

     (Open court, defendant and jury present.)

     [Appellant’s Counsel]: Your Honor, at this time I’m going to move
     for a mistrial.

     THE COURT: Your request is denied.

     [Appellant’s Counsel]: Ask the jury to disregard, please.


                                       –4–
               THE COURT: The jury is instructed to disregard the last answer
               that was given.

       At the conclusion of Birdow’s testimony, appellant’s counsel re-urged his motion for

mistrial and argued as follows:

       Your Honor, I believe when a codefendant gets up here, that is involved in
       directly each of these robberies, and the State of Texas talks about plea bargain
       negotiations and what the offer is, that that—that that number that was put there at
       30 years is—is so damaging because it gives them a benchmark that is outside
       what—this trial, that I don’t believe that the instruction that you justly gave is
       enough to be able to cure what has been planted inside of their brains; that the
       fella here, who is—is obviously a lesser participant but a codefendant, gets
       offered 30. I believe that is—that is too much damage. I believe it’s—I believe
       it’s outside the bounds, and I believe not even an instruction to the jury is going to
       be able to cure that.

In response, the trial court denied the motion and explained its reasoning as follows:

       The Court is ready to rule. The Court is going to deny your request for a mistrial.
       I will say that, certainly, the number causes a concern for the Court; but since it
       was made clear to the jury that this was a plea bargain offer and that the defendant
       has not taken that plea bargain offer and, in fact, he is going open to the Court,
       meaning that I will assess punishment[.] [A]dditionally, the fact that it has been
       made clear to the jury that the defendant is asking for probation and the State has
       offered some other number, I don’t see [ ] his desire for probation being anymore
       offensive than the State's desire for 30.

       Certainly, I think it could have been handled differently, but I do not believe that
       it is grounds for a mistrial.

       We review a trial court’s denial of a mistrial for an abuse of discretion. Webb v. State,

232 S.W.3d 109, 112 (Tex. Crim. App. 2007). To determine whether a trial court abused its

discretion we consider three factors: (1) the severity of the misconduct, (2) curative measures,

and (3) the likelihood the jury would assess the same punishment absent the misconduct. See

Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011). Asking an improper question

seldom requires a mistrial because any harm can usually be cured by an instruction to disregard.

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is required “[o]nly in




                                                –5–
extreme circumstances, where the prejudice is incurable[.]” Hawkins v. State, 135 S.W.3d 72, 77

(Tex. Crim. App. 2004).

       In this case we cannot conclude that the trial court abused its discretion when it denied a

mistrial. First, the conduct was not severe. Appellant and the State agree that the State’s

question about the State’s offer to Birdow of 30 years in prison as part of his plea bargain was

improper. Cf. De La Rosa v. State, 627 S.W.2d 207, 216–17 (Tex. App.—San Antonio 1981, no

pet.) (“The rule has been repeatedly laid down that it is inadmissible to prove that another, jointly

or separately indicted for the same offense, has been convicted or acquitted. . . . There appears to

be no reason why proof of punishment in the one case should be admissible at the punishment

phase of the co-defendant’s trial.”). But the question was brief and the State did not emphasize it

or refer to it again. Second, the trial court took immediate curative measures; it sustained

appellant’s objection to the relevant question and instructed the jury to disregard Birdow’s

answer. Third, the record supports the punishment the jury assessed in the absence of the

question. At trial four victims testified about being robbed of their purses. One was beaten with

a baseball bat, the others were threatened. The victims also testified about the ongoing impact

the aggravated robberies had on them. The jury was instructed to assess punishment between 5

and 99 years and elected a sentence at the lower end of that range: 25 years.

       We resolve appellant’s first issue against him.

                                   JUDGMENT MODIFICATION

       In his second issue appellant asks this Court to modify the trial court’s judgment to

correct the plea entered in this case. The judgment indicates that appellant pleaded not guilty to

the charge, but the record demonstrates that appellant pleaded guilty. The State agrees. This

Court has the power to modify an incorrect judgment to make the record speak the truth when we




                                                –6–
have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865

S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.

App.—Dallas 1991, pet. ref’d). We modify the judgment to change the notation under “Plea to

Offense” from “NOT GUILTY” to “GUILTY.”

                                       CONCLUSION

       We modify the trial court’s judgment to reflect appellant’s guilty plea and affirm as

modified.




                                                  /Elizabeth Lang-Miers/
                                                  ELIZABETH LANG-MIERS
                                                  JUSTICE

Do Not Publish
Tex. R. App. P. 47

121040F.U05




                                            –7–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

SHANE DONOVAN KEYS, Appellant                         On Appeal from the Criminal District Court
                                                      No. 3, Dallas County, Texas
No. 05-12-01040-CR         V.                         Trial Court Cause No. F11-45726-J.
                                                      Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee                          Justices Moseley and Bridges participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        the notation under “Plea to Offense” is changed from “NOT GUILTY” to
        “GUILTY.”
As REFORMED, the judgment is AFFIRMED.


Judgment entered this 25th day of June, 2013.




                                                      /Elizabeth Lang-Miers/
                                                      ELIZABETH LANG-MIERS
                                                      JUSTICE




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