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Dotson v. State9/2/2004
ative effect of the court's instruction to disregard, the correct inquiry is whether, in light of the record as a whole, the argument was extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory that the instruction to disregard was ineffective. Wesbrook, 29 S.W.3d at 115-16. If the instruction cured any prejudicial effect caused by the improper argument, a reviewing court should find that the trial court did not err. Dinkins, 894 S.W.2d at 357; Faulkner, 940 S.W.2d at 312.
Viewed in context, the complained-of argument is ambiguous at best and does not appear to improperly comment on either Dotson's failure to testify at trial or his post-arrest right to remain silent. The State's argument appears to relate solely to Dotson's jailhouse conversations with Walker, a non-government agent, not to times at trial or post-arrest when the invocation of a constitutional right was at issue. During his testimony, Walker stated that Dotson never told him that Sitko's death was an accident or was not intentional. Thus, the State's argument merely attempted to point out Dotson's failure to justify Sitko's death during his conversations with Walker when he chose not to remain silent.
However, even assuming that the State did indirectly comment on Dotson's failure to testify or his post-arrest right to remain silent, the trial court's instruction to disregard was sufficient to cure any harm resulting from the argument. Therefore, we hold that the trial court did not err by overruling Dotson's motion for mistrial. We overrule Dotson's fifth and sixth points.
VII. Deadly Weapon Finding
Dotson also raises three points challenging the trial court's affirmative deadly weapon finding. Specifically, Dotson alleges that the deadly weapon finding was improper because (1) the finding required a higher mental state than that determined by the jury for the offense of manslaughter, (2) the State failed to give timely notice of its intent to seek the deadly weapon finding on the lesser included offense of manslaughter, and (3) the evidence is insufficient to prove that he used or exhibited a deadly weapon by the manner of its use or intended use. The State maintains that the affirmative deadly weapon finding is appropriate in the instant case and is supported by sufficient evidence.
Dotson argues that because he was found guilty of recklessly committing manslaughter by the use of a motor vehicle, he cannot also have been found to have intentionally used or exhibited the same motor vehicle as a deadly weapon. Therefore, he complains that the evidence is legally and factually insufficient to support the trial court's affirmative deadly weapon finding because the finding required a higher culpable mental state than recklessness. He also complains that the evidence is legally and factually insufficient to prove that he used or exhibited a deadly weapon by the manner of its use or intended use.
Under Texas law, all felonies are theoretically susceptible to an affirmative deadly weapon finding. Patterson v. State, 769 S.W.2d 938, 940 (Tex. Crim. App. 1989). A deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2004-05). The plain language of section 1.07(a)(17)(B) does not require that the actor actually intend death or serious bodily injury; rather, " he placement of the word 'capable' in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force." Bailey v. State, 38 S.W.3d
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