explaining that it is improper to use closing argument to interject facts which were neither in evidence nor inferable from the evidence because “[t]he effect of such argument is to ask to the jury to determine the punishment of the accused based on collateral matters....”
How later courts described this case
- explaining that it is improper to use closing argument to interject facts which were neither in evidence nor inferable from the evidence because “[t]he effect of such argument is to ask to the jury to determine the punishment of the accused based on collateral matters....”
- holding that it was proper for the prosecutor, in the punishment phase of a trial for aggravated rape, to urge the jury to think about other victims of similar crimes because this was a proper plea for law enforcement
- holding that prosecutor may argue, as a proper plea for law enforcement, the impact of the verdict on the community and the relationship between the jury’s verdict and the deterrence of crime in general
- holding proper “to draw from the facts in evidence all inferences which are reasonable, fair and legitimate, but he may not use the jury argument to get before the jury, either directly or indirectly, evidence which is outside the record”
Written by the judges who cited it.
The opinion
TEAGUE, Judge,
dissenting.
It is, or should be, axiomatic in our law that no matter how vile, perverted, or even inhumanly criminal an accused person might be, or appears to be, he or she is still entitled under our law to receive a fair trial, which includes a trial free from improper jury argument by the prosecuting attorney. This is even true for those accused persons who might appear to be cut from the cloth of “middle class America,” but who wilfully and intentionally violate one of our penal laws.
Thus, no matter how despicable Carlos Borjan, henceforth appellant, or any other accused person might appear to be to the average citizen of this State, he was still entitled to receive a fair trial; a trial not marred or flawed by improper jury argument by the prosecuting attorney. Sad to say, appellant has not yet received that one tolerably fair trial the law guaranteed that he would receive.
Over 15 years ago, Judge Roberts, on behalf of this Court, made the following remarks: “[T]his Court has been faced with numerous cases where improper arguments and sidebar remarks by the prosecutor have forced us to reassert the critical importance of convicting an accused only upon the evidence presented, without attempting to inflame or prejudice the minds of the jurors. E.g., White v. State, Tex.Cr.App., 492 S.W.2d 488 (1973); Hefley v. State, 489 S.W.2d 115 (Tex.Cr.App.1973); Lott v. State, 490 S.W.2d 600 (Tex.Cr.App.1973). Some of these cases have caused this Court a great deal of consternation, resulting in several split decisions. We all recognize the difficulty in drawing the line between harmless argument outside the record and arguments calculated to deprive the defendant of a fair and impartial trial— the difficulty lies in actually applying such a necessarily enigmatic standard_” Stein v. State, 492 S.W.2d 548, 551-552 (Tex.Cr.App.1973).
In 1972, Judge Odom wrote the following in Stearn v. State, 487 S.W.2d 734 (Tex.Cr.App.1972): “There seems to be a growing tendency by the prosecutors [of this State] to go outside the record in jury argument.”
Members of appellate courts, from the United States Supreme Court to the lowest court in the land, which hands down written opinions, can, of course, and often do, give lip service, in beautiful legal language, what the true purpose and object of jury argument should be, and why certain jury argument by a prosecuting attorney is or is not proper. I find that the majority opinion purports to do just that in this cause, but what do those beautiful sounding words mean when the appellate court ultimately approves improper jury argument by the prosecuting attorney?
Those courts, or its members, can say, and often do say, such wonderful things as the following:
The constitutional right of trial by jury, as guaranteed by the Sixth Amendment to the Federal Constitution and Art. I, § 15, Texas Constitution, unquestionably implicates the right to a fair trial, and not simply just the right to a trial by jury, because absent a fair trial there might just *59 as well be no jury. See Adamson v. California, 332 U.S. 46, 53 , 67 S.Ct. 1672, 1676 , 91 L.Ed. 1903, 1909 (1947), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964). Also see Art. I, § 10, Texas Constitution.
Improper jury argument by the prosecution is not countenanced by the courts of this Nation, as “[b]oth State and Federal law governing the limits of proper jury argument by the prosecuting attorney find their source in notions of fairness, and the same source from which flows the right to due process of law.” Houston v. Estelle, 569 F.2d 372, 380 (5th Cir.1978), rehearing denied en banc without opinion, 572 F.2d 320 (5th Cir.1978). Also see Brown v. Estelle, 468 F.Supp. 42 (N.D.Tex.1978).
It is now elementary that the object and principal purpose of argument to the jury by the attorneys is to aid and assist the jury in properly analyzing the admitted evidence so that it can arrive at a just and reasonable conclusion based on the evidence alone. Dickinson v. State, 685 S.W.2d 320, 322 (Tex.Cr.App.1984). The law provides for, and presumes a fair trial, free from improper jury argument by the prosecuting attorney. Richardson v. State, 257 S.W.2d 308 (Tex.Cr.App.1953). Improper argument on the part of the prosecuting attorney occurs when the prosecuting attorney violates a mandatory provision of a statute, makes a manifestly improper, harmful, or prejudicial argument, or injects through his argument some new and harmful fact into the case. Vineyard v. State, 131 Tex.Cr.R. 476 , 100 S.W.2d 362 (App.1937). Also see Pena v. State, 137 Tex.Cr.R. 311 , 129 S.W.2d 667, 669 (App.1939); and Andrews v. State, 150 Tex.Cr.R. 95 , 199 S.W.2d 510, 514 (App.1942).
I pause to point out that in this instance the prosecuting attorney argued improperly when he injected through his argument a new and harmful fact into the case, which fact was not then before the jury, or asked the jury to speculate about other victims of similar type crimes. Nor was such comment invited by appellant’s trial counsel.
This, of course, does not mean that prosecuting attorneys are to be placed in some sort of straight jacket when they argue before the jury, because, within the extremely elastic boundaries defined by this Court, they are permitted to soar to such eloquence and oratory as their techniques of presentation permit. “They may rollick in metaphor and use illustrations, suppositions and hypothetical instances,” O'Brien v. Boston Elevated Railway Co., 214 Mass. 277, 280 , 101 N.E. 365 , provided they stay within the boundaries set by this Court, which are set out in Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex.Cr.App.1973).
Prosecuting attorneys should never ask jurors to speculate on the law not before them or on facts of the case not admitted into evidence, or to consider in deciding the defendant’s guilt extraneous and collateral offenses, which have not been admitted into evidence, nor should prosecuting attorneys argue hypothetical defenses a defendant might have presented, Garrett v. State, 632 S.W.2d 350, 351 (Tex.Cr.App.1982), nor should they ever attempt to get before the jury, either directly or indirectly, matters which are outside of the record. Jordan v. State, 646 S.W.2d 946 (Tex.Cr.App.1983). In summary, a prosecuting attorney, although free to strike hard blows, is not at liberty to strike foul ones, either directly or indirectly. Jordan, 646 S.W.2d at page 948 .
A prosecuting attorney occupies a position of great responsibility, power, authority, and trust, and his personal desire for victory, no matter how great, is always placed on the backburner during a trial, no matter how despicable he might believe the accused might be, because he is there on behalf of all the people of Texas to see that justice is done, or to see that an injustice is not perpetrated on the defendant.
Because a prosecuting attorney is such a highly respected individual, jurors usually give the remarks that he makes during jury argument their utmost and respectful attention. When a prosecuting attorney speaks, he speaks on behalf of all the people of the State of Texas, which actually includes accused individuals, and not just on behalf of himself or the victim of the crime that the accused is alleged to have *60 committed. Vargas v. State, 128 Tex.Cr.R. 139 , 79 S.W.2d 860 (App.1935); Rougeau v. State, 738 S.W.2d 651, 657 (Tex.Cr.App.1987). Furthermore, in Texas, the prosecuting attorney is instructed by statute not to prosecute just to convict, but to prosecute to see that justice is done. See Art. 2.01, V.A.C.C.P. Also see Berger v. United States, 295 U.S. 78 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935); United States v. Garza, 608 F.2d 659 (5th Cir.1979). For further cases involving the prosecuting attorney’s jury argument, see Montelongo v. State, 644 S.W.2d 710, 717 (Tex.Cr.App.1983) (Teague, J., dissenting opinion to Court’s denial of appellant’s motion for rehearing); Hightower v. State, 629 S.W.2d 920 (Tex.Cr.App.1982); Garrett v. State, 632 S.W.2d 350 (Tex.Cr.App.1982); Mathews v. State, 635 S.W.2d 532 (Tex.Cr.App.1982); Jones v. State, 693 S.W.2d 406 (Tex.Cr.App.1985); Good v. State, 723 S.W.2d 734 (Tex.Cr.App.1985); Decker v. State, 717 S.W.2d 903 (Tex.Cr.App.1986); Jordan v. State, 646 S.W.2d 946 (Tex.Cr.App.1983); Cortez v. State, 683 S.W.2d 419 (Tex.Cr.App.1984); and Dickinson v. State, 685 S.W.2d 320 (Tex.Cr.App.1984). Also see the many, many cases that this Court has reversed for improper jury argument by prosecuting attorneys that are compiled in Erisman’s Manual of Reversible Errors in Texas Criminal Cases (1956 edition); and Me Coll and Me Cullough, Erisman’s Reversible Errors in Texas Criminal Cases (1986 edition).
However, what does the above flowery, legal language mean?
I firmly believe that no matter what appellate courts might write about improper jury arguments by prosecuting attorneys, and no matter how many cases they reverse on this point, neither will cause improper jury argument to be dispatched into the sunset, simply because we have new prosecutors who are always coming on the scene, who want to do better than their predecessors did in the prosecution of accused persons, or perhaps because we have old prosecutors who have more thoroughly sharpened their skills since they last argued a case, and who now want to “to make an effort to put new garb on an old emperor.” Dorsey v. State, 709 S.W.2d 207, 211 (Tex.Cr.App.1986) (Teague, J., dissenting opinion.); Cortez v. State, 683 S.W.2d 419, 421 (Tex.Cr.App.1982); and Decker v. State, 717 S.W.2d 903, 909 (Tex.Cr.App.1983) (Teague, J., concurring and dissenting opinion), and hope that in the event of an appeal, an appellate court will approve what they argued, at least under the banner “it was a plea for law enforcement.”
So, what can this Court or some other appellate court do when it is presented with a case in which the issue of improper argument by a prosecuting attorney is before it to resolve? Except to reverse the trial court’s judgment of conviction, and thus get that particular trial judge’s attention and that particular prosecuting attorney’s attention, I do not believe there is much that can be done by appellate courts, because it is a given that new, as well as old, skilled prosecuting attorneys, will continue to be innovative and creative in attempting to put new clothes on an old emperor, so that the “new”, but “old” emperor will look more acceptable to an appellate court. And I firmly believe that is just a fact of life that appellate courts must deal with.
Prosecuting attorneys, by nature, want to find out how close to the reversible error line they can get during their jury argument. I have no fault with this philosophy. However, when a prosecuting attorney does cross the reversible error line, it is the duty and responsibility of the appellate court to reverse the trial court’s judgment. I find that when this Court, or any appellate court for that matter, chooses to put its stamp of approval on improper argument, under the guise of “It is a plea for law enforcement,” as it does in this cause, this merely breeds disrespect for that Court, and challenges new and old prosecuting attorneys to see how far outside the record they can go during their argument, in order to solicit the jury to speculate about matters not in evidence, and to hope that some appellate court will not say: “You went too far this time. Case reversed.!”
*61 I predict that some prosecuting attorney in the future will, by relying upon today’s majority opinion, fall into the same trap that another prosecuting attorney fell into not too long ago. Many prosecutors of this State who read and studied this Court’s decision of Montelongo v. State, 644 S.W.2d 710 (Tex.Cr.App.1983), well believed, and correctly so, that it was permissible to draft an imaginary Christmas card from the deceased, and then argue to the jury the contents of the card, and that such argument would be approved by this Court under Montelongo . The prosecutor in Washington v. State, 668 S.W.2d 715 (Tex.App.-14th 1983), State’s P.D.R. refused, obviously believed this when he made the almost identical argument that was made in Montelongo . Was the trial court’s judgment affirmed? No. The court of appeals reversed. What did this Court do? By refusing the State’s petition for discretionary review, and denying its motion for rehearing, in both of which the State relied upon its “white horse case” of Montelongo , this Court at least implicitly disapproved that argument, thus obviously leaving one prosecuting attorney and one appellate assistant district attorney of this State in a state of bewilderment.
The record of this cause reflects that on direct appeal appellant complained about the prosecutor’s argument that urged the jury to speculate about victims of other and like crimes which had occurred in the community, about which there was no evidence before the jury. The State argued on appeal, as it usually does, that the prosecutor’s argument was nothing more than a plea for law enforcement. A majority of the San Antonio Court of Appeals, in a majority opinion by Justice Tijerina, joined therein by Justice Esquivel, disagreed, and correctly rejected the State’s assertion, that argument that asserts “when you [the jury] go back there [to deliberate], think of the victims of these crimes, think of the ones who never come forward, who can’t stand to tell everybody about it ... For the ones who never come and tell you about it,” is nothing more than a plea for law enforcement. The majority opinion also, albeit implicitly, rejected the State’s reliance upon Stone v. State, 574 S.W.2d 85 (Tex.Cr.App.1978), a panel opinion of this Court, which panel was composed of Judges Douglas, Tom Davis, and Vollers.
Before one relies upon Stone as authority to support the broad, general statement, that it is permissible for the prosecuting attorney in his argument to the jury to urge the jury to protect the citizens of the county, women, and children, one must consider the fact that in Stone , there was evidence that another and distinct child-victim, while naked, performed oral sex on appellant, who was also naked, and a photograph was taken of this event. Another photograph showed that this same child-victim performed oral sex on appellant's wife. In this cause, however, no such extraneous offense testimony was before the jury for its consideration in deciding appellant’s guilt.
The majority opinion of this Court, after doing what many members of this and other appellate courts of this Nation have done in the past, that is, to first put in their opinions flowery, legal language as to what constitutes proper or improper jury argument by a prosecuting attorney, rules that the prosecutor’s statement that referred to “victims of other crimes” amounts to nothing more than a comment that “appealed to the jury to consider the impact of their verdict on sexually abused children in general,” and those who “never come forward” in particular. Thus, because the majority opinion reads the prosecutor’s argument to mean that he was referring to possible sexually abused children who existed in the community, and who have never come forward, that this was a proper plea for law enforcement argument because the prosecutor did not specifically state that he was referring to other sexually abused child victims that appellant might have had in the past, about which there is no evidence in the record before us. The majority opinion states: “It must be noted that in neither comment did the prosecutor directly refer to the appellant. His comments were directed to the community in general. Consequently, the State is correct that his comments constituted a proper plea for law *62 enforcement_” (Page 9 of slip opinion.) Does this mean that henceforth, as long as prosecuting attorney makes sure he does not directly implicate the accused in his argument, he is given license to argue just about anything his heart might desire that he should argue?
If the majority opinion is logically correct in what it states and holds, then has it not, at least implicitly, overruled the likes of Berryhill v. State, 501 S.W.2d 86 (Tex.Cr.App.1973); Lopez v. State, 500 S.W.2d 844 (Tex.Cr.App.1973); Rodriquez v. State, 520 S.W.2d 778 (Tex.Cr.App.1975), and the many, many cases which this and other Courts have reversed for improper jury argument that are found listed under West’ Criminal Law Key 719(1)?
In Berryhill , this Court, without any reservations or qualifications, ruled that “Argument injecting matters not in the record is clearly improper; but argument inviting speculation is even more dangerous because it leaves to the imagination of each juror whether extraneous ‘facts’ may be needed to support a conviction [or assess punishment]. Logical deductions from evidence do not permit within the rule logical deductions from nonevidence.” Also see Jordan, 646 S.W.2d at page 948 .
In Lopez , this Court condemned an argument that stated the following: “I’m concerned about the open season that is coming on police officers. I believe the same week these officers were killed there were eleven killed in America.” (846). Also see Martinez v. State, 649 S.W.2d 728 (Tex.App.-4th 1983) (Condemned: “I don’t have to sit here and tell you that we have a problem with robbery in San Antonio. And in Bexar County, Texas. Headlines on this morning paper, ‘clerk shot in head.’ ”); Escobedo v. State, 620 S.W.2d 590 (Tex.Cr.App.1981), which concerned argument, “If you don’t think they [undecover police officers] were scared after that shot — after that shooting, then you’re wrong. Because just like Eloy Gonzales is laying over there in Roy Akers’ Funeral Home this morning, Officer Gonzales — ,” which was about the death of a police officer who was in no way connected to the case; and Bennett v. State, 677 S.W.2d 121 (Tex.App.-14th 1984).
Today, notwithstanding the principle of law that an accused will not be convicted for being a criminal generally, and will not be convicted on the basis of other crimes that might have been committed in the community, also see and compare Lomas v. State, 707 S.W.2d 566 (Tex.Cr.App.1986), regarding a prosecutor improperly inviting a jury to punish the defendant for committing collateral crimes, this Court’s majority opinion erroneously approves the prosecutor’s jury argument that urged the jury in this cause, in deciding appellant’s guilt, to “think of the victims of these [other sexual assault crimes]; think of the ones who never come forward, who can’t stand to tell everybody about it; think about the ones who never come and tell you about it, who are too frightened.” Today, the long standing rule that a prosecutor’s jury argument that places before the jury new and harmful facts that were neither in evidence nor inferable from the evidence is improper is obviously placed on this Court’s back-burner for the time being.
This Court’s decision, of course, should bring much joy not only to the trial judge who first approved the above argument, the prosecutor who made the above argument, his former boss, the then District Attorney of Bexar County, the assistant district attorney who represented the District Attorney on appeal, and to many prosecuting attorneys throughout Texas, as this Court’s decision of Montelongo v. State, must have done. However, I must caution all of these individuals that before they celebrate too much, they should not forget, as occurred in Washington v. State, that any appellate court can easily distinguish in several respects even a “white horse case” or “a case on all fours,” and thus cause some prosecuting attorney to wake up some morning with one huge hangover, when he thought that when he went to sleep the night before he was going to have pleasant and happy dreams the rest of the night.
*63 For the above and foregoing reasons, I respectfully dissent.