      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00361-CR



                                   Herschel Hinkle, Appellant

                                                 v.

                                  The State of Texas, Appellee




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
        NO. 3013666, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Herschel Hinkle, who was driving while intoxicated and fleeing from a

police officer attempting to stop him for speeding, struck and killed another officer who had

deployed a “stinger” device. At a jury trial, appellant pleaded guilty to an indictment accusing him

of intoxication manslaughter and using his motor vehicle as a deadly weapon. See Tex. Pen. Code

Ann. § 49.08 (West Supp. 2004). He also pleaded true to an enhancement paragraph alleging two

previous felony convictions. The jury returned an instructed verdict of guilty and assessed

punishment at imprisonment for life.

               Appellant’s court-appointed attorney filed a brief concluding that the appeal is

frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738

(1967), by advancing contentions which counsel says might arguably support the appeal. See also

Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie
v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim.

App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant also filed a pro

se brief.

               We first address appellant’s fifth, sixth, and seventh pro se points of error, which

correspond with the arguable points contained in counsel’s brief. In point five, appellant contends

the court erroneously admitted extraneous offense evidence. Several items of personal property

linked to appellant were found scattered on the ground at the scene of the accident. Among these

items was a coin purse containing razor blades and a small amount of green, leafy residue. Appellant

objected to the admission of this evidence on the ground that its probative value was outweighed by

the danger of unfair prejudice. Tex. R. Evid. 403. The court overruled the objection in part and

sustained it in part. The court admitted the coin purse and its contents and permitted the witness,

a police officer, to testify that in his opinion the green substance was marihuana. The court did not

permit the State to adduce testimony that razor blades are used to cut cocaine and other controlled

substances.

               At the punishment stage, the court may admit any evidence it deems relevant to

sentencing, including evidence of other bad acts by the accused. Tex. Code Crim. Proc. Ann. art.

37.07, § 3(a)(1) (West Supp. 2004). We review the court’s decision to admit or exclude evidence

at the punishment stage for an abuse of discretion. Mitchell v. State, 931 S.W.2d 950, 953 (Tex.

Crim. App. 1996). Given the nature of the crime to which appellant pleaded guilty and the fact that

he was on probation when the accident occurred, the court did not abuse its discretion by concluding

that the marihuana residue evidence was more probative than unfairly prejudicial. We also note that



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no further reference to this evidence was made after its admission, even during the jury arguments.

Pro se point of error five is overruled.

                In point six, appellant complains of the admission of photographs taken by the

medical examiner during the autopsy of the deceased. The State offered eleven photographs.

Appellant objected that they were “cumulative and prejudicial.” After the State withdrew two of the

photographs, the court overruled appellant’s objection and admitted the remaining nine.

                Autopsy photographs are generally admissible unless they depict mutilation of the

body caused by the autopsy process itself. Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App.

1997). The nine photographs at issue show the injuries inflicted when appellant’s vehicle struck the

officer. Each photograph shows a different injury or a different view of an injury, and none of the

photographs depict the effects of the autopsy process. The medical examiner used the admitted

photographs to illustrate his testimony describing the officer’s injuries. We find no abuse of

discretion in the admission of the photographs over appellant’s rule 403 objection. Pro se point of

error six is overruled.

                In point seven, appellant contends the court erred by overruling his motion for

mistrial. Neither counsel’s brief nor appellant’s pro se brief refers us to the place in the record where

such a motion was made and overruled. Under the circumstances, pro se point of error seven

presents nothing for review.

                Appellant’s first pro se point of error is that the trial court denied him a fair and

impartial trial by permitting the courtroom to become an “armed camp.” The incident to which

appellant refers occurred after both sides rested. Defense counsel approached the bench and



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complained that the courtroom was “packed” with uniformed police officers. Counsel objected that

the “timing and increase in law enforcement presence is such that it creates an intimidating and

coercive atmosphere that cannot help but prejudice and influence the jury’s verdict in this case.”

After stating for the record that there were approximately fifty public seats in the courtroom, the

court ruled that no more than sixteen uniformed officers would be permitted to remain. Officers in

civilian clothing were also allowed to remain, but were instructed to hide their badges and other

police identification. Just before the jury returned to the courtroom to hear final arguments, the court

noted for the record that there were thirteen uniformed police officers present, and that “[a] lot of

them are dispersed and also in the back of the courtroom.”

               It is understandable that the deceased officer’s comrades on the force were interested

in hearing final arguments in this case. At the same time, the trial court was commendably sensitive

to the prejudice that could result from an excessive police presence in the courtroom. See Holbrook

v. Flynn, 475 U.S. 560, 570-71 (1986). The actions taken by the court appear to have satisfied

defense counsel, as he voiced no further objections. Finding no reversible error, we overrule pro se

point of error one.

               Appellant’s next pro se point is that the court erred by instructing the jury to make

an affirmative finding that a deadly weapon was used in the commission of the offense. See Tex.

Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West Supp. 2004). Appellant correctly points out that

a trial court is not authorized to make an affirmative finding when a jury is the trier of fact. Davis

v. State, 897 S.W.2d 791, 793 (Tex. Crim. App. 1995). He argues that the court violated this

principle by instructing the jury to make the finding.



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               When a defendant enters a plea of guilty before a jury, no issue of guilt remains and

it is proper for the court to instruct the jury to return a verdict of guilty. Holland v. State, 761

S.W.2d 307, 313 (Tex. Crim. App. 1988). In this cause, the indictment alleged that appellant

“operate[d] a vehicle in a public place while intoxicated, and by reason of that intoxication by

accident and mistake, cause[d] the death of an individual . . . by striking [him] . . . with his motor

vehicle, a deadly weapon, which in the manner of its use and intended use was capable of causing

death and serious bodily injury.” By pleading guilty to this allegation before the jury, appellant

removed any question as to whether he used his vehicle as a deadly weapon. The court did not err

by instructing the jury to make the affirmative finding. Pro se point of error two is overruled.

               In pro se point of error three, appellant urges that the court should have granted a

mistrial when the prosecutor commented on his failure to testify. The comment was made during

jury argument as the prosecutor was discussing appellant’s potential for rehabilitation: “You got to

ask yourself, look across here to the defense counsel table, is this defendant truly remorseful for his

actions?” The court sustained appellant’s objection and instructed the jury to disregard the comment,

but refused to declare a mistrial.

               Ordinarily, any injury arising from improper jury argument, even comments on the

defendant’s failure to testify, can be cured by a timely instruction to disregard. Long v. State, 823

S.W.2d 259, 269-70 (Tex. Crim. App. 1991); Trevino v. State, 979 S.W.2d 78, 80 (Tex.

App.—Austin 1998, pet ref’d). We conclude that the comment here was not so inflammatory as to

be incurable by instruction, and that the court did not abuse its discretion by refusing the requested

mistrial. Pro se point of error three is overruled.



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                Finally, appellant contends the prosecutor improperly commented on his future

dangerousness when he told the jury, during argument, that “if and whenever” appellant gets out of

prison, “you can bet” that he will buy and consume alcoholic beverages, get in a car, and “hurt

somebody or kill somebody again.” There was no objection, and therefore any error was not

preserved. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Pro se point of error four

is overruled.

                We have reviewed the record, counsel’s brief, and appellant’s pro se brief. We find

no substantive grounds to support the appeal.

                The judgment of conviction is affirmed.




                                              __________________________________________

                                              Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: March 11, 2004

Do Not Publish




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