AFFIR.l\1; Opinion Filed January 16, 2013.




                                                In The
                                     <!rnurt nf Appeals
                          lf.ifth, 1ilistrict nf wexa_s at 1ilalla.s
                                        No. 05-11-00353-CR
                                        No. 05-11-00354-CR
                                        No. 05-11-00355-CR
                                        No. 05-11-00356-CR
                                        No. 05-11-00357-CR


                           CORTNIE WAYNE ESTELLE, Appellant

                                                   v.
                                THE STATE OF TEXAS, Appellee


                       On Appeal from the 195th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F09-60399-N


                               MEMORANDUM OPINION
                           Before Justices Moseley, Fillmore, and Myers
                                   Opinion By Justice Moseley

       A jury convicted Cortnie Wayne Estelle of one count of evading arrest and detention and four

counts of aggravated robbery. The jury then sentenced Estelle to five years imprisonment for the

evading arrest conviction and life imprisonment for the four aggravated robbery convictions. In four

issues, Estelle asserts: (1) the trial court abused its discretion by overruling his motion to suppress

evidence; (2) the prosecutor engaged in harmful jury argument during the punishment phase of the

trial; (3) the trial court abused its discretion by denying defense counsel's request to poll the jurors;

and (4) the order of the verdict forms at the punishment phase of the trial constituted an
impermissible comment on the weight of the evidence.

        The background and facts of the case are well-known to the parties; thus, we do not recite

them here in detail. Because all dispositive issues are settled in law, we issue this memorandum

opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court's judgment.

        Estelle committed several aggravated robberies. One ofhis victims recorded Estelle's license

plate number and provided it to the Dallas Police Department. The police used the license plate

number to fmd Estelle's residence and set up a surveillance. During the surveillance, the police saw

Estelle exit his residence and enter the vehicle with the license plate number provided by the victim.

Following a brief car chase and foot pursuit, the police arrested Estelle.

        The police then sought and obtained a warrant to search Estelle's residence and retrieve

stolen property. When the police executeq the warrant, they found and seized some property that

Estelle stole from his victims, including two purses, on~ ~omputer bag, and one American Express

gift card.

        At the beginning of the punishment hearing, Estelle pleaded true to two enhancement

paragraphs. The jury then heard evidence about Estelle's prior convictions. The jury learned that

in 1988 Estelle pleaded guilty to aggravated sexual assault, he used or exhibited a firearm during this

offense, and he was sentenced to twenty years in prison; he pleaded guilty to two charges of

aggravated robbery, he used or exhibited a firearm during these offenses, and he was sentenced to

twenty years in prison; and he pleaded guilty to sexual assault and was sentenced to twenty years in

prison. The jury also heard testimony that at the time Estelle committed the offenses subject to this

appeal, he was on bond for a charge of unlawful possession of a firearm by a felon. After the

punishment hearing, the jury assessed a life sentence for each aggravated robbery conviction.

        In his first issue, Estelle asserts the trial court erred by denying his motion to suppress.




                                                 -2-
Estelle's brief states the "warrant failed to allege sufficient underlying facts to support the seizure

of items not specifically listed in the warrant," namely the purses, computer bag, and gift card.

However, before the trial court, Estelle argued the search '\vas not conducted pursuant to a lawful

search warrant" and the affidavit supporting the warrant did not establish probable cause because "it

fail[ ed] to allege sufficient underlying facts to demonstrate that there was a fair probability that

contraband or evidence would be found at the location to be searched." Because the argument

Estelle makes on appeal was not presented to the trial court, any error has not been preserved for our

review.     See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.

App.-Dallas 2003, no pet.). We resolve Estelle's first issue against him.

          In his second issue, Estelle argues the prosecutor improperly injected facts outside the record

into his closing argument, thereby injuring Estelle's defense and adversely influencing the jury's

verdict. During his closing argument to the jury at· the punishment phase, the prosecutor said:

          The role of the district attorney in this process that we have is to do our very best to
          represent the people of Texas. Our job every day is to try to come in and to try and
          suppress and prevent crime from happening and certainly if it has happened before
          that it won't happen anymore. And it occurs to me, now that you-all know, that we
          dropped the ball 22 years ago, when we first met Cortnie Estelle. Because ... there
          was a prosecutor a lot like me that thought 20 years was enough for this man; that he
          went down for raping two women-

Estelle's counsel interrupted the prosecutor and objected on the ground that the prosecutor was

arguing outside the record "as to what some prosecutor thought 20 years ago." The trial court

overruled the objection. The prosecutor then continued his argument:

          The prosecutor agreed to plea-bargain this defendant to 20 years even after using a
          gun to rob other people. Had we known what we know now; that he would get out
          and we know how he would have created more and more victims, perhaps we
          wouldn't have made that mistake.

          Assuming without deciding that the prosecutor's comments were improper, they do not




                                                    -3-
constitute harmful error warranting reversal. See Mosley v. State, 983 S.W.2d 249,259 (Tex. Crim.

App. 1998). When determining whether an error warrants reversal, we look at three factors: (1) the

severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2)

the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the

judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence

supporting the conviction). See id.; see also Hawkins v. State, 135 S. W .3d 72, 77 {Tex. Crim. App.

2004) (en bane) (applying Mosley factors to punishment proceedings in non-capital case).

       With respect to the first factor, by the time the prosecutor mentioned Estelle's prior

convictions for rape and his 20-year sentence, the jury had heard Estelle plead true to the two

enhancement paragraphs as well as testimony about Estelle's prior offenses. While the prosecutor's

statements-about what the former prosecutor thought and how that prosecutor might have acted had

he been able to foretell the future were unsupported; the prosecutor's comments did not inject.any

new facts into the record and were not greatly prejudicial to Estelle. :As for the second factor, no

curative action was taken. Finally, the certainty of the conviction absent the prosecutor's improper

argument is not speculative; the evidence supporting Estelle's punishment is strong. During the

guilt/innocence phase of the trial, five witnesses testified about how Estelle approached them, and

either robbed them or attempted to rob them at gun point. During the punishment hearing, another

man also testified about Estelle attempting to rob him at gunpoint. The jury heard testimony that

Estelle threatened to shoot three of these victims and did shoot at another victim. Under these

circumstances, the prosecutor's comments did not affect Estelle's substantial rights, and did not

constitute harmful error warranting reversal. See Mosley, 983 S.W .2d at 259. We overrule Estelle's

second issue.

       In his third issue, Estelle claims the trial court erred by denying his request to poll the jury




                                                -4--
about a newspaper article. During the punishment phase of the trial, the Dallas Morning News

published an article titled "Sex Offender Convicted in String of Robberies." Estelle's counsel

brought the article to the trial judge's attention and requested the trial judge ask the jury "if any of

the jurors read the article and, if so, if it affected them in any way." The trial judge denied the

request and replied:

                    The Court has instructed the jury already that during your deliberations in this
            case you must not consider, discuss or relate any matters [sic] in evidence before you.
            You should not consider, discuss or relate any matters not in evidence before you.
            You should not consider or mention any personal knowledge or information you may
            have about any fact or person connected with the case which has not been shown by
            the evidence nor shall you, in deciding your verdict, discuss the punishment; et
            cetera, et cetera.
                    The Court will similarly instruct the jury, and the Court deems that to be
            sufficient enough. And the Court is not going to go on a wild goose chase asking the
            jury whether they read a dictionary or newspaper or read anything on the internet or
            anything else.

The trial court.admitted the article for record purposes .. ·;· •                             •   ••• !"   :: .
                                                                                                                                         ·'

            We review the trial judge's decision not to poll the jury about media coverage for an· abuse

of discretion. See Mays v. State, 318 S. W .3d 368, 377 (Tex. Crim. App. 201 0). When he made the

request, Estelle's counsel did not discuss the contents of the article with the trial judge and did not

characterize it as prejudicial to his client. He did not summarize the story or provide any information

concerning it. Even on appeal, Estelle's only complaints about the article are that it mentioned

Estelle's prior conviction for rape 1 and the article inaccurately reported Estelle's age? Estelle does

not describe the article as prejudicial and does not explain how either of these points, the fact Estelle

had a prior rape conviction and an incorrect report about his age, could have prejudiced Estelle even



    1 The article stated: uEstelle was convicted in 1988 of sexually assaulting a 20-year old woman, according to coun records. He was
sentenced to 20 years in prison."

    2
        The article reponed Estelle was thiny years old when he was fony-one years old.




                                                                      -5-
                   if the jurors had read the article.

                           Though a jury's exposure to media coverage holds the potential to compromise a fair trial,

                   a presumption of prejudice does not arise solely as a result of media coverage. See Powell v. State,

                   898 S.W.2d 821, 826 (Tex. Crim. App. 1994). The trial judge considered Estelle's counsel's

                   request, but indicated that other measures would protect against the jury's consideration of any such

                   exposure to media coverage. As the trial judge noted, the five jury charges included the following

                   admonition:

                           During your deliberations in this case, you must not consider, discuss, or relate any
                           matters not in evidence before you. You should not consider or mention any personal
                           knowledge or information you may have about any fact or person connected with this
                           case which is not shown by the evidence.

                   Absent evidence indicating otherwise, we presume the jurors followed the trial court's instructions.

               See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) ("Apd we generally presume that ·
- ... ··--                                                     . .   .   ';._! ·:-   ..
.   -~



               a jury will follow the judge's instructions."). There is no evidence the jury in this case did not follow
             • •     "r.                                                 -   -!


               the trial court's instructions. Given the lack of any evidence relating to any prejudicial information

               in the news story, the trial court's specific admonishments to the jury not to consider matters not in

               evidence in reaching its verdicts, and the legal presumption that the jury followed the trial court's

                   instructions, we cannot conclude the trial court abused its discretion by denying Estelle's request to

               poll the jury. See Mays, 318 S.W.3d at 377-79. See also Powell, 898 S.W.2d at 828 (trial court

               correctly decided not to poll jury concerning article). We overrule Estelle's third issue.

                           Finally, Estelle argues the order and manner of the verdict forms attached to the punishment

               charges constituted an impermissible comment on the weight of the evidence. For each aggravated

                   robbery conviction, the court's punishment charge instructed the jurors that they were to "assess the

                   punishment of the defendant at confinement in the Institutional Division ofthe Texas Department




                                                                         -6--
of Criminal Justice for Life or a term of not more than 99 years or not less than 15 years and a fine

not to exceed $10,000." The charge also included two verdict forms. The first verdict form stated:

                   We, the jury, having found the defendant guilty of aggravated robbery, as
            charged in the indictment, further find beyond a reasonable doubt that Enhancement
            Paragraph One is true and assess defendant's punishment for Life in the Institutional
            Division ofthe Texas Department of Criminal Justice.

                   We assess his fine at$ _ _ _. (Note: Here enter an amount not to exceed
            $10,000 or write the word "none.")

The second verdict form, located on the next page of the court's charge, stated:

                    We, the jury, having found the defendant guilty of aggravated robbery, as
            charged in the indictment, further fmd beyond a reasonable doubt that Enhancement
            Paragraph One is true and assess defendant's punishment at imprisonment for
            _ _ _ years in the Institutional Division of the Texas Department of Criminal
            Justice (Note: Enter any term of years not more than 99 years or less than 15 years.)

                   .We assess his fine at $                                     . (Note: Here enter an amount not to
            exceed $10,000 or write the word "none.")                                                       · '·
                                                                                -   ....   ~   : .

The ..end of each verdict form included lines for the presiding juror to sign and print her name on

whichever form the jury opted to complete. In each instance, the jury executed the first form

(assessing a life term) and wrote "none" as the amount of the fine. 3 The jury left the second form

blank in each case.

            On appeal, Estelle complains that by placing the verdict form with life imprisonment first,

the trial court commented on the weight of the evidence and conveyed its opinion about the

appropriate sentence. However, the record is clear the trial court instructed the jury that it must

decide whether to sentence Estelle to a term between fifteen and ninety-nine years or life in prison



   3
       \Vhen charging the jury, the trial judge stated:
                        And you will be authorized to assess punishment at imprisonment for life. You may also assess an additional
            fine of not to exceed $10,000.

                       If you do not wish to assess punishment at life, you also have the option to set punishment for a term of years
            not more than 99 years or less than 15 years. Again, a fine of S I 0,000 may be assessed in addition to the time imposed.




                                                                       -7-
(in addition to an optional fine). Absent evidence indicating that the jurors failed to do so, we

presume the jurors followed the trial court's instructions. See Gamboa, 296 S.W.3d at 580. There

is no indication in the record that the jurors ignored the trial court's instruction and did not consider

the full range of punishment. We ovenule Estelle's fourth issue.

        Having resolved Estelle's four issues, we affirm the trial court's judgment.




Do Not Publish
TEX. R. APP. P. 47
110353F.U05

                                                                                                .·,




                                                  -8-
                                 <!rourt of 1\pp£als
                       lf.iftq ilistrict of W£xtts at Sallas

                                     JUDGMENT
CORTNIE WAYNE ESTELLE, Appellant                 Appeal from the 195th Judicial District
                                                 Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-11-00353-CR          V.                   Cause No. F09-60399-N).
                                                 Opinion delivered by Justice Moseley,
THE STATE OF TEXAS, Appellee                     Justices Fillmore and Myers participating.


      Based on the Court's opinion ofthis date, the judgment ofthe trial court is AFFIRMED.




Judgment entered January 16, 2013.
                                Qrourt of App cals
                      lliifth. mi.strid of (!lcxa.s at malla.s

                                     JUDGMENT
CORTNIE WAYNE ESTELLE, Appellant                  Appeal from the 195th Judicial District
                                                  Court ofDallas County, Texas. (Tr.Ct.No.
No. 05-11-00354-CR          V.                    Cause No. F09-60408-N).
                                                  Opinion delivered by Justice Moseley,
THE STATE OF TEXAS, Appellee                      Justices Fillmore and Myers participating.


      Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.




Judgment entered January 16,2013.
                                  illnurt nf Appeals
                       lf.ifth, 1ili.strirt nf <Yexa.s at 1ilalla.s
                                       JUDGMENT
CORTNIE WAYNE ESTELLE, Appellant                    Appeal from the 195th Judicial District
                                                    Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-11-00355-CR           V.                     Cause No. F09-60498-N).
                                                    Opinion delivered by Justice Moseley,
THE STATE OF TEXAS, Appellee                        Justices Fillmore and Myers participating.


       Based on the Court's opinion of this date, the judgment of the trial court is AFFIR!VIED.



Judgment entered January 16, 2013.
                                                      -   ---   -~   ·-- ---   --   ·~-~----------   ---   -·--   ·--   ---~---   -----




                                  illourt of App.eats
                       lJiifth• 1ilistrict of w.exa.s at 1ilalla.s
                                      JUDGMENT
CORTNIE WAYNE ESTELLE, Appellant                   Appeal from the 195th Judicial District
                                                   Court ofDallas County, Texas. (Tr.Ct.No.
No. 05-11-00356-CR           V.                    Cause No. F09-73057-N).
                                                   Opinion delivered by Justice Moseley,
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Myers participating.


       Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered January 16, 2013.
                                 C!rnurt nf i\pp.eals
                       lf.iftq 1ilistrict nf ID.exa.s at 1ilalla.s

                                       JUDGMENT
CORTNIE WAYNE ESTELLE, Appellant                    Appeal from the 195th Judicial District
                                                    Court ofDallas County, Texas. (Tr.Ct.No.
No. 05-11-00357-CR           V.                     Cause No. F09-73058-N).
                                                    Opinion delivered by Justice Moseley,
THE STATE OF TEXAS, Appellee                        Justices Fillmore and Myers participating.


       Based on the Court's opinion of this date, the judgment of the trial court is AFFIRlVIED.



Judgment entered January 16, 2013.
