David Scott Musgrove II v. State

Citation: Not availableDocket: 02-08-00029-CR

Court: Court of Appeals of Texas; December 17, 2008; Texas; State Appellate Court

Original Court Document: View Document

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David Scott Musgrove, II appeals his conviction for possession of methamphetamine (over four grams but less than 200 grams) with intent to deliver. The conviction arose from a search conducted on August 12, 2004, by Narcotic Agent Jack Jones and ten other agents at Musgrove's residence. During the search, agents found Musgrove in bed with a female companion and observed two loaded firearms on a nearby dresser. Testimony indicated that Musgrove appeared to reach for the guns upon waking, though the female witness did not see this action. The search also uncovered various items, including drug paraphernalia, stolen items, and evidence of counterfeiting.

Musgrove pleaded guilty to the charge, with the jury tasked only with determining punishment and whether he used a deadly weapon in the commission of the offense. Evidence from a subsequent search on March 7, 2006, included additional firearms and marijuana-related items. A controversial photograph of a sign directed at the arresting agents was initially admitted into evidence but later withdrawn by the trial court after Musgrove objected.

The jury concluded that Musgrove used a deadly weapon during the offense, recommending a 60-year prison sentence and a $10,000 fine. Musgrove's appeal includes a challenge to the sufficiency of the evidence regarding the use of a deadly weapon, which the court will address from both factual and legal perspectives.

Legal sufficiency requires evaluating evidence in favor of the prosecution to determine if a rational fact-finder could conclude the essential elements of a crime beyond a reasonable doubt, as established in Jackson v. Virginia. For a finding of a deadly weapon, the evidence must demonstrate: 1) the object qualifies as a dangerous weapon, 2) it was used or exhibited during the crime, and 3) it posed a risk to others. When assessing factual sufficiency, all evidence is reviewed neutrally to determine if the fact-finder's decision was clearly wrong or unjust.

A deadly weapon is defined as a firearm or any object designed to cause death or serious injury. A finding can occur if the accused used or exhibited a deadly weapon during a felony or was aware that one would be used. The State must prove that the weapon facilitated the felony's commission. "Use" involves employing the weapon for its intended purpose, while "exhibit" entails a conscious display during the crime. Relevant factors for determining sufficiency include the type of weapon, its accessibility, and its proximity to drugs.

In this case, two loaded revolvers were found next to Musgrove's bed, and he reached for them when agents arrived. Drugs and paraphernalia, such as scales and bags, were found throughout the premises, indicating a connection to drug distribution and supporting the deadly weapon finding.

Evidence supports the finding that Musgrove used or exhibited a deadly weapon during the offense of possession with intent to deliver, leading to the overruling of his first point. Musgrove's second and third points involve claims that the trial court erred by admitting a sign from his property as evidence and by not declaring a mistrial after striking the sign from evidence. The standard of review for a mistrial is abuse of discretion, applicable only for highly prejudicial errors that are deemed incurable. Generally, a prompt instruction to disregard can mitigate such errors.

In the case of the sign, which contained offensive language directed at law enforcement agents, its admission was initially deemed an error. However, the trial court's action to strike the sign and instruct the jury to disregard it rendered any potential error moot. The court found that the character of the photograph did not suggest that the jurors could not dismiss its impact, even after the instruction was given. Therefore, the court upheld its decision not to grant a mistrial, ruling that the instruction sufficiently mitigated any harm, and Musgrove's second and third points were overruled.

During the closing arguments, the prosecutor made statements regarding the defendant's bad reputation, which were objected to by Musgrove and subsequently disregarded by the jury after the trial court sustained the objection. The court denied Musgrove's motions for mistrial, and the issue for review was whether this denial constituted an abuse of discretion. The appellate court determined that the prosecutor's remarks did not create incurable prejudice, hence the jury instructions to disregard were sufficient to mitigate any harm.

Musgrove also contested the admission of hearsay evidence related to extraneous drug transactions during the punishment phase, asserting that his objections were not based on hearsay at trial, thus waiving the argument on appeal. The court noted that such evidence is admissible under Texas law, and any objections regarding the burden of proof were deemed insufficient as the jury ultimately decides the facts.

The appellate court found no abuse of discretion in the trial court’s evidentiary rulings and noted that the jury was properly instructed on how to consider extraneous evidence. As Musgrove did not demonstrate any violation of this instruction, the court overruled his objections and affirmed the trial court's judgment.