J. Prudencio Rodriguez-Izquierdo v. The State of Texas--Appeal from 27th District Court of Bell County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 1992 » J. Prudencio Rodriguez-Izquierdo v. The State of Texas--Appeal from 27th District Court of Bell County

State: Texas

Court: Texas Northern District Court

Docket No: 03-92-00368-CR

Case Date: 10/07/1992

Plaintiff: Gregory Barnett Griggs

Defendant: The State of Texas--Appeal from 13th District Court of Navarro County

Preview:Gregory Barnett Griggs v. The State of Texas--Appeal
from 13th District Court of Navarro County
MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-03-00286-CR
Gregory Barnett Griggs,
Appellant
v.
The State of Texas,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court # 28,466
O p i n i o n
Gregory Barnett Griggs was found guilty by a jury of aggravated sexual assault on an elderly person. Tex. Pen. Code
Ann. 22.021 (Vernon Supp. 2004-05). He was sentenced to life imprisonment and fined $10,000. He brings four issues
on appeal: (1) his right to a fair and impartial trial was violated by the court s allowing a witness to testify without
proper notice being given by the State; (2) the evidence was not factually sufficient to sustain a verdict of guilty; (3)
the trial court improperly overruled his motions for mistrial; and (4) the verdict is weakly supported by the record and
the prosecution s case was fraught with error.
BACKGROUND
The victim testified that she was sexually assaulted in her home by an unknown assailant. She had fallen asleep in
front of the television and awoke in the dark. Her assailant ripped open her robe, held her arms, and sexually
penetrated her. She was unable to see her assailant. Afterwards, she heard crashing sounds as the assailant escaped
through the kitchen. When police arrived, they found a back door smashed out and shards of broken lattice panels. An
officer testified that he found a glove lying on the ground among the lattice shards and paint chips. DNA found in the
glove was compared to a blood sample drawn from Griggs. A DPS criminologist and a DNA expert each testified that
the DNA from the glove matched that from the blood sample. Two witnesses testified to conversations they had with
Griggs while they and Griggs were inmates. Inmate Gravitt testified that Griggs admitted to sexually assaulting an
elderly woman in Griggs s neighborhood. Inmate Spencer testified that Griggs nodded and grinned when he asked
file:///C|/Users/Peter/Desktop/opinions/PDFs1/6220.html[8/20/2013 7:20:20 PM]

Griggs if he had committed the assault.
Undisclosed Witness
Griggs argues that he was denied his right to a fair and impartial trial because the trial court allowed a witness to
testify without proper notice being given by the State. On the second day of testimony, the prosecution requested leave
to allow an additional witness to testify. Over Griggs s objection, the trial court allowed the testimony to be presented
to the jury. In determining whether or not a trial court abused its discretion in allowing an undisclosed witness to
testify, we consider whether the prosecution s action constituted bad faith and whether the defendant could have
reasonably anticipated the witness s testimony. Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim. App. 2000).
The undisclosed witness inmate Spencer testified to a conversation he had with Griggs. Spencer s attorney and the
prosecutor both testified that the prosecution did not become aware of Spencer s willingness to testify and of the
conversation to which he would testify until the afternoon before the State requested leave to allow the testimony. The
prosecutor informed Griggs s counsel that evening of its intention to add Spencer to its witness list. The trial court
found no bad faith on the State s part and determined that the prejudice to the defense could be cured by granting
defense counsel time to prepare. The court ordered the State to provide the defense relevant information regarding
Spencer for the purpose of preparation and cross-examination.
Because the trial court could have reasonably found that the State did not learn of this witness until the time of trial,
and because the trial court provided the defense an opportunity to prepare for cross-examination of the witness, the
trial court did not abuse its discretion in allowing the witness testimony. See Stoker v. State, 788 S.W.2d 1, 15 (Tex.
Crim. App. 1989); Bridge v. State, 726 S.W.2d 558, 566 (Tex. Crim. App. 1986).
Factual Sufficiency
Griggs argues that the evidence at trial was not factually sufficient to sustain the verdict. We review factual sufficiency
by considering all of the evidence in a neutral light to determine whether the jury was rationally justified in finding
guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).
Griggs argues that there is no physical evidence that placed him in the house where the attack took place. However,
testimony by the investigating officer and the victim supports the State s theory that the glove containing Griggs s
DNA was worn by the assailant during entry into the house and left behind by the assailant as he exited the home by
breaking through the lattice and screen door. Inmate Gravitt testified that Griggs bragged to him that he had assaulted
an old woman in his neighborhood. Inmate Spencer testified that while he and Griggs were discussing the indictment
against him, Griggs grinned and shook his head yes when the inmate asked Griggs if he had committed the crime. The
defense called other inmates who testified that they had been asked by law enforcement officials to give information
about Griggs. One inmate testified that inmate Gravitt said he would give up a name for a whole bunch of time and
stated his desire to take him [Griggs] down.
The jury determines the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v.
State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The evidence is not factually insufficient merely because the jury
resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App.
1997). Because we must defer to the jury s determination of credibility, we cannot say that the jury was not rationally
justified in finding Griggs guilty of the assault.
Motions for Mistrial
Griggs argues that the trial court improperly overruled his motions for mistrial after the State disregarded rulings and
instructions by the trial court. We review an order denying a motion for mistrial for an abuse of discretion. Simpson v.
State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). A trial court may properly exercise its discretion to declare a
mistrial if an impartial verdict cannot be reached, or if a verdict could be reached but would have to be reversed on
appeal due to an obvious procedural error. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
Griggs complains of two types of prosecutorial misconduct. First, he argues that the prosecutor deliberately positioned
file:///C|/Users/Peter/Desktop/opinions/PDFs1/6220.html[8/20/2013 7:20:20 PM]

a trial exhibit a photograph that had been ruled inadmissible face up on his counsel table in view of the jury. Griggs
brought this to the court s attention and requested a mistrial. The trial court denied the motion, instructed the
prosecutor to keep documents not admitted into evidence out of the sight of the jury, and instructed the jury to
disregard any documents, photographs, or objects they might see in the courtroom that have not been admitted as
evidence. Although we do not condone such activity, we find that the instruction was sufficient to cure any harm.
Second, Griggs argues that the State committed prosecutorial misconduct by eliciting extraneous allegations against
him. The court instructed the prosecutor that there should be no testimony regarding any criminal acts or offenses
which were not subject to the current proceedings. The court specifically expressed its concern regarding testimony of
admissions to three sexual assaults. In response to the court s instruction, the prosecutor requested a break to speak to
the witnesses before they were called. Nevertheless, when the prosecutor asked Gravitt what Griggs told him, Gravitt
responded: That he had raped some older women. Later in his testimony, Gravitt repeated his statement that Griggs
said he had raped older women. The prosecution s next witness was the detective to whom Gravitt had made the
statement. The detective testified that Gravitt had told him that Griggs said he had raped three elderly women in his
neighborhood.
The State argues that Griggs failed to preserve his complaint in this instance because he did not timely object to the
testimony. Generally, a timely objection to a violation of a motion in limine is necessary to preserve a complaint of
error. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994). However, an objection after an event occurs
cannot fulfill the purpose of the objection, which is to prevent the occurrence of the event. Young v. State, 137 S.W.3d
65, 70 (Tex. Crim. App. 2004). At the conclusion of the two witnesses testimony, Griggs made a motion for mistrial
and requested an instruction. The trial court denied the motion for mistrial and instructed the jury before the next
witness was called. Under these circumstances, Griggs s actions were sufficient to preserve the complaint about the
mistrial ruling. See id. (If an instruction could not have enabled the continuation of the trial by an impartial jury, the
only suitable remedy is a mistrial, and a motion for mistrial is the only essential prerequisite to presenting the
complaint on appeal. ).
The asking of an improper question will seldom require a mistrial because, in most cases, any harm can be cured by an
instruction to disregard. Ladd, 3 S.W.3d at 567; Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex. Crim. App. 1990).
Similarly, a witness s inadvertent reference to an extraneous offense is generally cured by a prompt instruction to
disregard. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). An exception exists where the reference was
clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be
impossible to remove the harmful impression from the jurors minds. Id. A mistrial is required only when an improper
question or reference is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of
withdrawing the impression produced on the minds of the jurors. See Ladd, 3 S.W.3d at 567; Simpson, 119 S.W.3d at
272. Regardless of whether the prosecutor s questions were intended to elicit the inadmissible testimony, the focus of
our analysis is on the prejudice to the defendant. The testimony was not only heard by the jury but was repeated by two
State s witnesses, one of whom was the investigating officer in the case. Furthermore, the testimony was given in
violation of the court s earlier ruling. Afterward, the trial judge himself expressed concern that the testimony of the
witnesses had jeopardized the trial. The impression produced in the minds of the jurors that Griggs might be a serial
rapist of elderly women was highly prejudicial and could not be cured by an instruction to disregard. Given the lack of
direct identification of the perpetrator of the crime charged, and because the prosecution relied heavily upon Griggs s
alleged admissions to his fellow inmates, the danger that the jury may have been swayed by the inadmissible testimony
was particularly high. Under these circumstances, the trial court abused its discretion in denying Griggs s motion for
mistrial.
Weak Verdict/Prosecutorial Error
In his final issue, Griggs argues that the verdict is weakly supported by the evidence and the prosecution s case was
fraught with error. However, we have addressed the factual sufficiency of the evidence and Griggs does not present
any additional prosecutorial errors for our review. Thus he presents no additional issue for our review.
CONCLUSION
file:///C|/Users/Peter/Desktop/opinions/PDFs1/6220.html[8/20/2013 7:20:20 PM]

Finding that the trial court abused its discretion in denying Griggs s motion for a mistrial, we reverse the judgment and
remand the cause for a new trial.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed April 13, 2005
Publish
[CRPM]
file:///C|/Users/Peter/Desktop/opinions/PDFs1/6220.html[8/20/2013 7:20:20 PM]

Download 6220.pdf