                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                  NO. 2-09-243-CR


ANDREW DAVID NEW MAN                                                     APPELLANT

                                            V.

THE STATE OF TEXAS                                                             STATE

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           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      In three points, appellant Andrew David Newman appeals his conviction for

aggravated robbery, asserting that the trial court abused its discretion by denying his

motion for mistrial, abused its discretion by admitting evidence of his prior

convictions at punishment, and erred by overruling his objection to the State’s

comment on his failure to testify at punishment. W e will affirm.



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           See Tex. R. App. P. 47.4.
                     II. F ACTUAL AND P ROCEDURAL B ACKGROUND

         One morning in September 2006, Lucia Milan was working as a cashier in her

family’s small convenience store, which was located across the street from her

parents’ house. Newman came into the store that morning, purchased a coke, and

then left. He returned to the store about thirty minutes later, inquired about a public

restroom, and left the store once again. W ithin the hour, Newman returned to the

store a third time, walked behind the counter, and approached Milan. Newman

produced a hammer from behind his back and began repeatedly hitting Milan over

the head with it while telling her over and over, “Give me the money.” Milan covered

her head with her hands and told Newman she would give him the money, but

Newman continued to hit her with the hammer even after she fell to the floor.

Newman stopped hitting Milan and began climbing some shelves to reach a security

camera, at which time Milan was able to escape the store and go across the street

to her parents’ house. A neighbor saw Milan limp out of the store, screaming and

covered in blood, and then saw a man walk out of the store and calmly walk down

the street with a hammer in his hand. No money or property was taken from the

store.

         Milan suffered numerous wounds to her head and hands, multiple broken

bones in her left hand, and permanent tendon damage to her left hand. Milan later

identified Newman as her assailant based on a photo lineup, and police arrested

him. A jury found Newman guilty of aggravated robbery with a deadly weapon, and


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after considering evidence of his prior convictions, assessed his punishment at

ninety-nine years’ confinement. The trial court sentenced him accordingly. This

appeal followed.

                               III. M OTION FOR M ISTRIAL

      In his first point, Newman argues that the trial court erred by denying his

motion for mistrial after the prosecutor made a misstatement of the law during

closing argument at the guilt-innocence phase of trial. The following transpired

during the State’s closing argument:

      [Prosecutor]: One of the other things the judge did mention to you is
      that there is a lesser-included offense of aggravated assault with a
      deadly weapon in this charge. W e talked about it at the jury selection
      as well. One of the things I wanted to point out to you there is you don’t
      get to that charge unless you’ve found him not guilty of aggravated
      robbery, that you consider aggravated robbery first and only if you are
      beyond a reasonable doubt unanimous that he’s not guilty of
      aggravated robbery do you even consider the second charge of–

      [Defense Counsel]: I object. That is an incorrect statement of the law.
      . . . The jurors have been instructed if they have a reasonable doubt as
      to whether he’s guilty of aggravated robbery, they must consider the
      lesser.

      [The Court]: I’ll sustain.

      [Defense Counsel]: The prosecutor has implied they have to find him
      innocent.

      [The Court]: I’ll sustain that particular objection. The jury has been
      properly instructed in the jury charge.

      [Defense Counsel]: I’m sorry. Move for mistrial.

      [The Court]: Denied.


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The State agrees that the prosecutor misstated the law but contends that Newman

was not entitled to a mistrial.

      The trial court’s denial of a motion for mistrial is reviewed under an abuse of

discretion standard. Hawkins v. State, 135 S.W .3d 72, 76–77 (Tex. Crim. App.

2004). An appellate court views the evidence in the light most favorable to the trial

court’s ruling, considering only those arguments before the court at the time of ruling.

Wead v. State, 129 S.W .3d 126, 129 (Tex. Crim. App. 2004). Under this standard,

an appellate court must uphold a trial court’s ruling if it was within the zone of

reasonable disagreement. Id. A mistrial is appropriate only in extreme cases, where

the prejudice is incurable and the “expenditure of further time and expense would be

wasteful and futile.” Hawkins, 135 S.W .3d at 77.

      To determine whether the trial court abused its discretion by overruling a

motion for mistrial, the appellate court must balance three factors: (1) the severity

of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s

comment), (2) any curative measures taken (the effect of any cautionary instruction

by the trial court), and (3) the certainty of conviction absent the misconduct (the

strength of the evidence supporting the conviction). Mosley v. State, 983 S.W .2d

249, 259 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999).

      The jury is entitled to consider the charge as a whole and is not required to

unanimously agree that a defendant is not guilty of the greater offense before

considering the lesser-included offense. Barrios v. State, 283 S.W .3d 348, 349–50

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(Tex. Crim. App. 2009). It is well established that the prosecutor cannot misstate the

law. See Whiting v. State, 797 S.W .2d 45, 48 (Tex. Crim. App. 1990).

       In the present case, we first consider the severity of the misconduct. The

prosecutor’s statement—although a misstatement of the law regarding when the jury

can consider the lesser-included offense—occurred only once, and viewing the

State’s closing argument as a whole, we cannot conclude that “there was a willful

and calculated effort on the part of the State to deprive [Newman] of a fair and

impartial trial.”   Brown v. State, 270 S.W .3d 564, 573 (Tex. Crim. App. 2008)

(considering whether State made willful and calculated error to deprive appellant of

fair trial when analyzing severity-of-the-misconduct factor), cert. denied, 129 S. Ct.

2075 (2009).

       Regarding the second factor—the curative measures taken—although

Newman did not ask for an instruction to disregard, immediately after sustaining his

objection, the trial court took curative action by stating, “The jury has been properly

instructed in the jury charge.” See Young v. State, 137 S.W .3d 65, 70 (Tex. Crim.

App. 2004) (noting that reversal not warranted when party requests mistrial without

asking for instruction to disregard when event could have been cured by instruction).

Moreover, the jury charge correctly set forth the law and instructed the jury, “Unless

you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof,

you will acquit the Defendant of aggravated robbery and next consider the lesser

included offense of aggravated assault.”      See Barrios, 283 S.W .3d at 349–50


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(approving of same charge); Hawkins, 135 S.W .3d at 84 (considering proper jury

charge in analysis of curative-measures factor).

      Finally, even without the misstatement of the law, the strength of the evidence

supporting Newman’s conviction was great. Newman argues that the evidence does

not show that he appropriated any money to support conviction of the greater

offense of aggravated robbery.     But the State was not required to prove that

Newman completed the theft; instead, the State needed to show only that Newman

had the specific intent to commit theft and that he committed an act that amounted

to more than mere preparation. See Tex. Penal Code Ann. §§ 29.01(1), .02(a),

.03(a) (Vernon 2003); Bustamante v. State, 106 S.W .3d 738, 740 (Tex. Crim. App.

2003). Milan testified at trial that Newman had repeatedly beat her with a hammer

while saying, “Give me the money.” Following the robbery, Newman also told his

girlfriend, Olivia Allen, that he had “attempted a robbery at a convenience store and

had hit a lady repeatedly with a hammer.” Allen also testified that Newman had

explained that his “sole purpose” of going to the store was “to rob the store, to get

the money.” The jury saw security video footage of Newman pressing a button on

the cash register in an attempt to obtain money. Newman’s intent to commit robbery

is thus evidenced by statements he made both during and after the robbery, and the

security videotape demonstrates that Newman’s actions amounted to more than

mere preparation to commit theft. See Bustamante, 106 S.W .3d at 740.




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      Balancing the above factors, we hold that the trial court did not abuse its

discretion by denying Newman’s motion for mistrial. See Hawkins, 135 S.W .3d at

77; Mosley, 983 S.W .2d at 259. W e overrule Newman’s first point.

                         IV. E VIDENCE OF P RIOR C ONVICTIONS

      In his second point, Newman argues that the trial court abused its discretion

during the punishment phase of trial by admitting State’s Exhibits 48 and

49—evidence of two of Newman’s prior convictions—because the State did not

sufficiently link those prior convictions to him.

      An appellate court reviews a trial court’s decision to admit evidence over

objection under an abuse of discretion standard and will not reverse that decision

absent a clear abuse of discretion. McCarty v. State, 257 S.W .3d 238, 239 (Tex.

Crim. App. 2008); Moses v. State, 105 S.W .3d 622, 627 (Tex. Crim. App. 2003).

      To establish that the defendant was convicted of a prior offense for

enhancement purposes, the State must (1) prove the existence of the conviction and

(2) link the conviction to the defendant. Flowers v. State, 220 S.W .3d 919, 921–22

(Tex. Crim. App. 2007); Davis v. State, 268 S.W .3d 683, 715 (Tex. App.—Fort W orth

2008, pet. ref’d). No specific document or mode of proof is required to prove these

two elements. Flowers, 220 S.W .3d at 921; Paschall v. State, 285 S.W .3d 166, 174

(Tex. App.—Fort W orth 2009, pet. ref’d).

      The State may establish a defendant’s previous conviction through certified

copies of a judgment and sentence. Beck v. State, 719 S.W .2d 205, 209 (Tex. Crim.


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App. 1986). However, the State must provide independent evidence linking these

documents to the defendant on trial. Id. at 210. This is frequently done by expert

testimony identifying known fingerprints of the defendant with the fingerprints in a

pen packet, but the necessary proof may come from other means as well. Id.

Courts have identified several other ways in which the link has been made, including

(1) the defendant’s admission or stipulation, (2) testimony by a person who was

present when the person was convicted of the specified crime and can identify the

defendant as that person, or (3) documentary proof (such as a judgment) that

contains sufficient information to establish both the existence of a prior conviction

and the defendant’s identity as the person convicted. Flowers, 220 S.W .3d at

921–22; Beck, 719 S.W .2d at 209–10. The evidence used to link a prior crime to a

defendant often “resembles a jigsaw puzzle.” Human v. State, 749 S.W .2d 832,

835–36 (Tex. Crim. App. 1988). “The pieces standing alone usually have little

meaning. However, when the pieces are fitted together, they usually form the picture

of the person who committed the alleged prior conviction or convictions.” Id. at 836.

      Here, State’s Exhibits 48 and 49 each consist of certified copies of a docket

sheet, a misdemeanor complaint and information, and a judgment and sentence

reflecting a prior conviction. Newman’s unique Criminal Identification Number (“CID

number”) is located on the misdemeanor complaint and information and on the

docket sheet in each exhibit, but the judgment in each exhibit does not contain his

CID number. The fingerprints in both exhibits are illegible.


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      Newman specifically complains on appeal that, because the fingerprints in

State’s Exhibits 48 and 49 are illegible and because the judgments in both exhibits

do not contain his unique CID number, the State failed to connect him to those prior

convictions. However, the judgment in each exhibit contains the same named

defendant, the same cause number, the same court, and the same charge as

contained in the corresponding complaint and information and on the docket sheet,

which do contain Newman’s unique CID number. Additionally, the same information

identifying Newman as the defendant in those exhibits is also contained in State’s

Exhibit 45—a pen packet evidencing another prior conviction. Fingerprint examiner

John Pauley testified that fingerprints he took from Newman prior to trial matched the

fingerprints contained in State’s Exhibit 45. That exhibit lists the defendant’s name

as Andrew David Newman and contains Newman’s physical description, date of

birth, and physical address, all of which are also contained in State’s Exhibits 48 and

49. State’s Exhibit 45 also shows that Newman had a prior conviction for assault on

a family member that occurred prior to December 1, 2003—the very same conviction

that is reflected in State’s Exhibit 48.

      In the instant case, looking at all of the “pieces of the jigsaw puzzle,” we hold

that sufficient evidence linked Newman to the prior convictions in State’s Exhibits 48

and 49. Human, 749 S.W .2d at 835–36; see Flowers, 220 S.W .3d at 223; Dukes v.

State, No. 04-08-00678-CR, 2009 W L 1617665, at *1 (Tex. App.—San Antonio June

10, 2009, no pet.) (mem. op., not designated for publication) (holding that, although


                                           9
fingerprint expert was unable to match fingerprints contained in exhibit to

defendant’s fingerprints, evidence sufficiently linked defendant when expert matched

fingerprint on judgment contained in another exhibit with defendant’s fingerprint and

when defendant’s name and CID number appeared in both exhibits); Ortiz v. State,

No. 02-07-00397-CR, 2008 W L 4602243, at *2 (Tex. App.—Fort W orth Oct. 16,

2008, pet. ref’d) (mem. op., not designated for publication) (holding that State

sufficiently linked defendant to prior conviction when his fingerprints matched those

on jail card, which contained same CID number as that on indictment, although

judgment did not contain CID number); Nguyen v. State, Nos. 13-02-00645-CR,

13-02-00646-CR, 2004 W L 1834404, at *3 (Tex. App.—Corpus Christi Aug. 12,

2004, no pet.) (mem. op., not designated for publication) (referring to appellant’s

unique SPN number as evidence linking appellant to prior convictions). Accordingly,

we hold that the trial court did not abuse its discretion by admitting State’s Exhibits

48 and 49 because the State sufficiently linked them to Newman. See McCarty, 257

S.W .3d at 239; Moses, 105 S.W .3d at 627. W e overrule Newman’s second point.

                      V. N O C OMMENT ON F AILURE TO T ESTIFY

      In his third point, Newman argues that the trial court erred by overruling his

objection to the State’s comment on his failure to testify during the punishment

phase of his trial. Specifically, Newman complains that the State’s questioning of Dr.

James W omack improperly referred to Newman’s lack of remorse and constituted

a comment on his failure to testify.


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      During the State’s cross examination of Dr. W omack, Dr. W omack discussed

the characteristics of antisocial personality disorder and concluded that Newman had

all but one of the characteristics of that disorder; he could not say for certain whether

Newman met the final characteristic—indifference to hurting and mistreating others.

The following exchange then occurred:

      [Prosecutor]: You’re aware that the assault in this case was committed
      with a hammer, correct?

      [Dr. W omack]: Yes

      [Prosecutor]: Now let me show you what is marked State’s Exhibit 18.
      Are you aware that this is the hammer used to commit the assault?

      [Dr. W omack]: If it’s been proven, I’ll accept that, yeah.

      [Prosecutor]: Now, let me show you some photographs, State’s Exhibits
      24, 28, 27. And I’m going to represent to you the white shards there are
      bone.

      [Dr. W omack]: Looks like bone, doesn’t it?

      [Prosecutor]: Yes. Twenty-six you see an injury to the temple area
      there?

      [Dr. W omack]: Severe separation.

      [Prosecutor]: And you can’t tell much because of the hair, but State’s
      Exhibit 25—

      [Dr. W omack]: Yes.

      [Prosecutor]: W ould you agree with me that if a person’s capable of
      inflicting that kind of harm on a human being and then walking away at
      an even pace, absolutely expressionless, and leaving that person to
      whatever their fate may be, that shows a certain lack of remorse for—



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      [Defense Counsel]: Objection. Comment on failure to testify, Your
      Honor.

      [Prosecutor]: I’m asking about conduct, Your Honor.

      [Defense Counsel]: Objection. Comment on failure to testify.

      [The Court]: I’m going to overrule the objection at this time.

      [Prosecutor]: W ould you say the pattern of behavior or conduct I’m
      describing to you shows a certain lack of remorse or indifference to
      hurting or mistreating others?

      The code of criminal procedure provides that a defendant’s failure to testify on

his own behalf may not be held against him and that counsel may not allude to the

defendant’s failure to testify. Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005).

To determine whether a prosecutor’s comment violated article 38.08 and constituted

an impermissible reference to an accused’s failure to testify, we must decide

whether the language used was manifestly intended or was of such a character that

the jury naturally and necessarily would have considered it to be a comment on the

defendant’s failure to testify. Id.; see Bustamante, 48 S.W .3d at 765; Fuentes v.

State, 991 S.W .2d 267, 275 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999).

The offending language must be viewed from the jury’s standpoint, and the

implication that the comment referred to the accused’s failure to testify must be

clear. Bustamante, 48 S.W .3d 765; Swallow v. State, 829 S.W .2d 223, 225 (Tex.

Crim. App. 1992). A mere indirect or implied allusion to the defendant’s failure to

testify does not violate the accused’s right to remain silent. Wead, 129 S.W .3d at



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130; Patrick v. State, 906 S.W .2d 481, 490–91 (Tex. Crim. App. 1995), cert. denied,

517 U.S. 1106 (1996).

      Generally, a prosecutor may not argue that the accused has not shown

remorse or shame because this calls the jury’s attention to the absence of testimony

that only the accused can supply. Swallow, 829 S.W .2d at 225–26; Dickinson v.

State, 685 S.W .2d 320, 323 (Tex. Crim. App. 1984). However, an exception to the

general rule applies if there is evidence in the record that supports a comment

regarding the defendant’s failure to show remorse; in that case, the comment is a

proper summation of the evidence. Howard v. State, 153 S.W .3d 382, 385–86 (Tex.

Crim. App. 2004) (holding that State’s argument was proper summation of evidence

when evidence showed defendant had told officer that he had no remorse), cert.

denied, 546 U.S. 1214 (2006); Caldwell v. State, 818 S.W .2d 790, 800 (Tex. Crim.

App. 1991) (explaining that jury could have interpreted State’s comment on lack of

remorse as reference to witness’s testimony of defendant’s “calm demeanor” after

murder), cert. denied, 503 U.S. 990 (1992), overruled on other grounds by Castillo

v. State, 913 S.W .2d 529 (Tex. Crim. App. 1995). W itnesses may testify as to the

defendant’s statements and conduct indicating a lack of remorse. Oliva v. State, 942

S.W .2d 727, 734 n.2 (Tex. App.—Houston [14th Dist.] 1997), pet. dism’d, 991

S.W .2d 803 (Tex. Crim. App. 1998).

      In the present case, the State was simply asking an expert witness whether,

in his opinion, Newman’s conduct indicated a lack of remorse and was therefore


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consistent with the characteristics of antisocial personality disorder. Prior to Dr.

W omack’s testimony, an eyewitness testified that she had seen Newman walk out

of the store at a calm pace while carrying a hammer and that his face was

expressionless. The State was drawing on this prior testimony to question Dr.

W omack about a characteristic of antisocial personality disorder by asking him

whether such actions would show a lack of remorse. W e hold that the prosecutor’s

question to Dr. W omack was not manifestly intended nor was of such a character

that the jury naturally and necessarily would have considered it to be a comment on

Newman’s failure to testify. See Bustamante, 48 S.W .3d at 765; see also Ladd v.

State, 3 S.W .3d 547, 569 (Tex. Crim. App. 1999) (holding jury could have interpreted

State’s comment on lack of remorse as referring to psychiatrist’s testimony that

appellant had anti-social personality disorder and had no remorse for his crimes),

cert. denied, 529 U.S. 1070 (2000); Fearance v. State, 771 S.W .2d 486, 514 (Tex.

Crim. App. 1988) (holding State’s argument was not a comment on failure to testify

but rather a summation of the evidence provided by a psychiatrist that personalities

like appellant’s show no remorse), cert. denied, 492 U.S. 927 (1989). Accordingly,

we hold that the trial court did not err by overruling Newman’s objection to the

complained-of comment. W e overrule Newman’s third point.




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                                 VI. C ONCLUSION

      Having overruled Newman’s three points, we affirm the trial court’s judgment.




                                                   SUE W ALKER
                                                   JUSTICE


PANEL: DAUPHINOT, W ALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 1, 2010




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