                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-17-00012-CR

MICHAEL HANLEY PENIX,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2015-2036-C2


                          MEMORANDUM OPINION

      Appellant Michael Hanley Penix entered a plea of guilty to the murder of his wife.

After electing to have the jury assess punishment, Penix was sentenced to ninety-nine

years’ incarceration. In his present appeal, Penix raises one issue—the prosecutor made

an improper closing argument. We will affirm.

                                     Background

      The evidence introduced at trial established that Penix murdered his wife,

Rebecca, on the evening of September 12, 2015. Penix emptied his five-shot revolver into
Rebecca’s body while she lay helpless on the bedroom floor with her hands raised.

During closing argument, the prosecutor stated: “Timothy McVeigh was an Eagle Scout.

He served his country. He deserved to die.” Defense counsel made a prompt objection,

which the trial court sustained. Defense counsel then moved for a mistrial, which the

trial court denied. Defense counsel then requested that the trial court instruct the jury to

disregard the prosecutor’s remark and again moved for a mistrial. The trial court

instructed the jury, “Instruct the jury to disregard the last comment of counsel for the

State” and denied the second motion for a mistrial.

                                         Analysis

        Penix asserts as error the prosecutor’s argument to the jury. The appropriate focus,

however, is whether the trial court abused its discretion in denying Penix’s motion for

mistrial. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). We uphold

the trial court’s denial of a motion for mistrial if it was within the zone of reasonable

disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). When a trial

court sustains an objection to an improper jury argument and instructs the jury to

disregard the argument, but denies a motion for mistrial, as here, we assume without

deciding that the argument was improper and look only to whether the trial court abused

its discretion when it denied the motion for mistral. See Hawkins, 135 S.W.3d at 76-77.

        [T]he question of whether a mistrial should have been granted involves
        most, if not all, of the same considerations that attend a harm analysis. A
        mistrial is the trial court's remedy for improper conduct that is “so
        prejudicial that expenditure of further time and expense would be wasteful
        and futile.” In effect, the trial court conducts an appellate function:
        determining whether improper conduct is so harmful that the case must be
        redone.

Penix v. State                                                                        Page 2
Hawkins, 135 S.W.3d at 77 (footnoted citation omitted). Thus, the appropriate test for

evaluating whether the trial court abused its discretion in overruling a motion for mistrial

is a tailored version of the test originally set out in Mosley v. State, 983 S.W.2d 249, 259

(Tex. Crim. App. 1998), a harm analysis case. Id. The Mosley factors that we consider in

determining whether the trial court abused its discretion in denying a mistrial are: (1)

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

remarks), (2) any curative measures (the efficacy of any cautionary instruction by the

judge), and (3) the certainty of the punishment assessed absent the misconduct (the

likelihood of the same punishment being assessed). Id. Only in extreme circumstances,

where the prejudice is incurable, will a mistrial be required. Id.; see also Archie, 221 S.W.3d

at 699. Otherwise, when the prejudice is curable, an instruction by the court to disregard

eliminates the need for a mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).

The law generally presumes that a jury will follow the trial court’s instruction to

disregard. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009); see also

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Only offensive or flagrant

error will mandate reversal after a trial court gives an instruction to disregard. Phillips v.

State, 130 S.W.3d 343, 356 (Tex. App.—Houston [14th Dist. 2004), aff’d, 193 S.W.3d 904

(Tex. Crim. App. 2006); see also Williams v. State, 417 S.W.3d 162, 176 (Tex. App.—Houston

[1st Dist.] 2013, pet. ref’d).   “[O]nly in the most egregious cases when there is an

‘extremely inflammatory statement’ is an instruction to disregard improper argument

considered an insufficient response by the trial court.” Moore v. State, 999 S.W.2d 385,


Penix v. State                                                                           Page 3
405-06 (Tex. Crim. App. 1999) (quoting Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim.

App. 1988)).

        Proper jury argument falls into four general categories: (1) summation of the

evidence; (2) reasonable deductions from the evidence; (3) answer to opposing counsel’s

arguments; and (4) plea for law enforcement. Gallo v. State, 239 S.W.3d 757, 767 (Tex.

Crim. App. 2007). A prosecutor cannot use closing argument to put matters before the

jury that are outside the record and prejudicial to the accused. Everett v. State, 707 S.W.2d

638, 641 (Tex. Crim. App. 1986); Gonzalez v. State, 115 S.W.3d 278, 284 (Tex. App.—Corpus

Christi 2003, pet. ref’d). Comparing a defendant or his acts to an infamous criminal is

considered “an improper and erroneous interjection of facts not in the record that is

harmful to the accused.”            Gonzalez, 115 S.W.3d at 284-5.             However, a prosecutor’s

reference to a notorious individual in closing argument that does not make a direct

comparison to the defendant is less likely to be found by the courts to be improper or

harmful to the defendant’s case. See Martinez v. State, No. 08-15-00124-CR, 2018 WL

3084147, at *8 (Tex. App.—El Paso June 22, 2018, no pet.) (mem. op., not designated for

publication);1 see also Primes v. State, 154 S.W.3d 813, 815 (Tex. App.—Fort Worth 2004,

no pet.) (trial court did not abuse its discretion in denying defendant’s motion for mistrial

where prosecutor responded to testimony of defendant’s family regarding their love for

defendant by commenting that “Ted Bundy’s mother loved him too,” as comment did


1
  Under Rule 47.7(a) of the Rules of Appellate Procedure, unpublished memorandum opinions not
designated for publication have no precedential value but may be cited with the notation, “(not designated
for publication).” Unpublished memorandum opinions are persuasive rather than binding precedent that
the court may follow or reject. See Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).

Penix v. State                                                                                          Page 4
not directly compare Bundy’s actions to those of defendant); Luna v. State, No. 08-13-

00151-CR, 2015 WL 4572276, at *6 (Tex. App.—El Paso July 29, 2015, pet. ref'd) (mem. op.,

not designated for publication) (trial court did not err in denying motion for mistrial

where prosecutor merely asked jury if they had heard of Bernie Madoff and made no

direct comparison of Madoff to defendant); see also Alford v. State, No. 05-98-00262-CR,

2000 WL 175115, at *6-7 (Tex. App.—Dallas Feb. 16, 2000, no pet.) (mem. op., not

designated for publication) (prosecutor’s statement that “Ted Bundy had a paper route

when he was a boy,” did not warrant reversal where made in response to defense

counsel’s argument that defendant was hard-working and was not meant to compare

Bundy’s conduct with that of defendant).

        In determining whether a prosecutor’s reference to a notorious criminal was

improper, we must consider it in the context that it was made, examining the “entire

argument, not merely isolated sentences.” Robbins v. State, 145 S.W.3d 306, 314-15 (Tex.

App.—El Paso 2004, pet. ref’d); see also Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim.

App. 1988). In closing argument, the defense attorneys argued that the murder was an

aberration, possibly caused by Penix’s use of Ambien and Xanax, that Penix was a low

risk as a repeat offender, and that the jury should not judge Penix solely on the basis of

the worst thing he had ever done. Immediately prior to the reference to Timothy

McVeigh, the prosecutor stated: “Defense counsel said, What’s the measure of a man?

Should we judge a man by the worse moment of his life?” Taken in context with the

defense argument, the prosecution’s reference to Timothy McVeigh was obviously a

Penix v. State                                                                      Page 5
reference to the fact that people who commit bad acts can also commit good ones, but

those good acts should not excuse them from being punished appropriately.                The

prosecutor did not directly compare Penix to Timothy McVeigh or his acts; therefore, the

one-time reference to Timothy McVeigh, when considered in the context of the trial and

the defense closing argument, was not so egregious that it could not be remedied by an

appropriate limiting instruction. As the Archie court noted, “Under the facts of this case,

we conclude that, in sustaining appellant’s objection and instructing the jury as it did, the

trial court sufficiently ameliorated any potential harm.” Archie, 221 S.W.3d at 700.

        The Gonzalez case cited by Penix is readily distinguishable. See Gonzalez, 115

S.W.3d at 278. In closing argument, the prosecutor compared Gonzalez to Osama bin

Laden. After the trial court sustained an objection to those remarks, the prosecutor then

compared Gonzalez’s gang, the Mexican Mafia, to al Qaida. The Corpus Christi Court

found the remarks to be so egregious that the trial court’s limiting instruction could not

overcome the prejudice to Gonzalez, particularly in light of the fact that the trial was

conducted only seven months after 9/11, when those “vile and dastardly acts were

undoubtedly still fresh in the minds of the jurors.” Id. at 284. Timothy McVeigh’s “vile

and dastardly acts,” however, were committed in 1995, close to twenty years prior to

Penix’s trial. Unlike our sister court, we conclude that the prosecutor’s reference to

Timothy McVeigh was not “a blatant attempt to deprive appellant of a fair and impartial

trial.” Id. at 285.




Penix v. State                                                                         Page 6
        Finally, the record supports a conclusion that the jury was likely to assess the same

punishment in the absence of the prosecutor’s remarks. As noted, Penix shot Rebecca at

close range while she was lying helpless on the ground, as evidenced by the gunpowder

stippling on her face, hands, and forearms. There was no sign of a struggle in the

bedroom or the rest of the house. After the shooting, Penix called 9-1-1, stating “My wife

woke me up in the middle of the night, and I shot her.” He further stated, “My wife woke

me up and started arguing with me. I was asleep.” When the 9-1-1 operator asked what

happened next, Penix replied, “And she kept on arguing with me. I had a gun, and I shot

her.” He further said, “She kept arguing with me and trying to (unintelligible). She woke

me up.”          The 9-1-1 operator connected Penix to the emergency medical services

dispatcher who gave Penix instructions on how to perform CPR.               Penix was not

noticeably distressed during the 9-1-1 call, but remained calm and gave clear and lucid

responses to the dispatchers.

        When the police arrived at Penix’s house, Penix was still on the phone with 9-1-1

and performing CPR on Rebecca. The officers who testified did not believe that Penix

was making an actual attempt at CPR because he was using only one hand, he was barely

pressing down, and his hand did not appear to be on her chest. Penix also had no blood

on him despite the large amount of blood around Rebecca’s body. Penix’s demeanor

remained calm and coherent when questioned by the police. The only strong emotion

Penix exhibited was in response to his dogs barking when the police forced entry into the

house. Penix also did not appear to the officers to be under the influence of any substance

that would have affected his mental capacity. Penix told officers that he drank a couple

Penix v. State                                                                         Page 7
of beers earlier in the day, but he did not mention that he had taken any prescription

medication.

        Penix told officers that he shot Rebecca when she woke him up, as if he acted in

reflex after she startled him. However, Rebecca’s body was found on the opposite side

of the bed from where Penix slept. In contrast to the statements Penix made to 9-1-1 and

to the police, Penix testified at trial that he did not remember much of what occurred the

evening Rebecca was murdered. He had no memory of retrieving the gun or firing it.

Penix testified that he also could not remember all of his conversations with 9-1-1 or the

police. Penix also showed no emotion regarding Rebecca’s death during his testimony.

        The State introduced witnesses who testified to problems in the Penix marriage,

including at least one incident of domestic abuse. Penix admitted that the police had been

called after he put his hands around Rebecca’s neck, but Rebecca refused to press charges.

Penix attributed his actions on that occasion to a mixture of alcohol and medications,

remarkably similar to his explanation for Rebecca’s murder. Penix presented an expert

witness who testified that patients who took the drugs prescribed to Penix—Ambien and

Xanax--reported instances of memory loss, as well as aggression and other aberrant

behaviors. In rebuttal, the State presented the testimony of Penix’s treating physician

who testified that Penix had never reported any side effects from his prescriptions,

particularly any type of memory loss.

        Considering the brutality of the murder, Penix’s emotionless response to Rebecca’s

death, his contradictory statements regarding the events surrounding the murder, and

his unsuccessful attempts to deflect responsibility for his actions, the record supports a

Penix v. State                                                                      Page 8
conclusion that the jury would likely have returned the same verdict in the absence of the

prosecutor’s reference to Timothy McVeigh.

        After application of the Mosley factors, we cannot say that the trial court abused its

discretion in denying the motion for mistrial. Accordingly, we overrule Appellant’s sole

issue and affirm the trial court’s judgment.




                                                   REX D. DAVIS
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 26, 2018
Do not publish
[CRPM]




Penix v. State                                                                          Page 9
