Hughes v. State

BAIRD, Judge,

dissenting.

To resolve point of error ten, the majority concludes the jury disregarded a portion of the State’s argument even though appellant’s objection to that argument was overruled and the trial judge’s subsequent curative instruction was limited to a separate portion of the State’s argument. In other words, the majority holds the jury disregarded the trial judge’s instruction and did more than the instruction required. Such a result oriented and perverse resolution of this point of error is without support from any authority from this or any other Court.

I.

During the punishment phase of the trial the State presented the testimony of T_ H_, the complainant whom appellant had previously sexually assaulted. Thereafter, during the State’s closing argument, the following exchange took place:

PROSECUTOR: I suggest to you that the testimony of T_H_alone is enough to put the needle in this man’s arm. And for that little girl to be brought down here and for Mr. McCullough and Mr. Thomas to put her on trial again is not right.

DEFENSE COUNSEL: Objection. He put her on the stand, Your Honor. I *159 object to raising the issue that we’ve done something wrong by protecting our client’s rights, by asking a few simple questions on cross-examination of the witness he put on the stand. I object to it.

PROSECUTOR: I apologize. I don’t want to insinuate—

DEFENSE COUNSEL: I don’t want his apology.

PROSECUTOR: I’m not saying Mr. McCullough or Mr. Thomas has done anything wrong.

DEFENSE COUNSEL: I object, Mr. Prosecutor. I have made an objection.

TRIAL COURT: The objection will be overruled. 1

The State’s argument continued as follows:

PROSECUTOR: They have done nothing wrong. They’re trying to protect their client. It’s their job. It doesn’t mean it’s the right thing to do.

DEFENSE COUNSEL: I object to him striking at my client over the shoulders of counsel by accusing us of doing something that ain’t the right thing to do which was clearly within the rules, would have been malpractice if we hadn’t done it. I request that the jury be instructed to disregard counsel’s arguments.

TRIAL COURT: The objection will be sustained. Jury will disregard the last argument of the prosecutor and not consider it for any purpose whatsoever.

MR. McCULLOUGH: I would move for further relief, Your Honor. 2

TRIAL COURT: That will be denied.

II.

This Court has consistently recognized four categories of permissible jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and, (4) plea for law enforcement. Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980), and Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App. 1973). It is clear the instant jury argument was not a summation of the evidence, a reasonable deduction from the evidence, or a plea for law enforcement. Therefore, the issue is whether the State’s argument was an answer to the argument of appellant’s counsel. My review of the record reveals that the State’s argument was not in response to appellant’s argument. Appellant’s counsels did not refer to, or otherwise mention, the testimony of T_ H_ during their closing arguments. Therefore, the State’s argument was not permissible.

It is axiomatic in our criminal jurisprudence that a defendant “[h]as the right to confront and fully cross-examine all persons who have testimony relevant to criminal charges.” Ex parte Grothe, 687 S.W.2d 736, 739 (Tex.Cr.App.1984). See, Davis v. Alaska, 415 U.S. 308, 311 , 94 S.Ct. 1105, 1108 , 39 L.Ed.2d 347 (1974); Washington v. Texas, 388 U.S. 14 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967); and Chambers v. Mississippi, 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973). In the instant case, the State called T_H_as a witness. My review of the record reveals that appellant’s counsel did nothing more than assert appellant’s Sixth Amendment right of cross-examination. See also, Tex. Const, art. I § 10.

This Court has consistently “[sjhown a special concern for final arguments that constitute uninvited and unsubstantiated accusations of improper conduct directed at a defendant’s attorney.” Gomez v. State, 704 S.W.2d 770, 771 (Tex.Cr.App.1985). See, Fuentes v. State, 664 S.W.2d 333 (Tex.Cr.App.1984); Boyde v. State, 513 S.W.2d 588, 592 (Tex.Cr.App.1974); and Bray v. State, 478 S.W.2d 89 (Tex.Cr.App.1972). In Boyde and Gomez we noted that the general public does not understand the concept that defense attorneys are under an ethical obligation to represent the accused regardless of then-personal opinion of their client. In Boyde we stated:

This general misunderstanding by the public serves to contribute to the prejudicial effect of an argument by a prosecutor *160 which strikes at a member of the bar for representing a person accused of crime.

Boyde, 513 S.W.2d at 592 . I believe the State’s argument improperly struck at appellant over the shoulders of his counsel and the trial judge erred by overruling appellant’s first objection.

III.

The State contends the error was cured when the prosecutor apologized after defense counsel’s objection. This argument fails for two reasons. First, after offering the apology, the prosecutor continued the same objectionable argument. Secondly, we have never held that an apology cures error. The jury is required to follow the trial judge’s ruling; an apology does not serve as a curative instruction. 3

The State next contends, and the majority agrees, that the error in overruling appellant’s objection, to the initial argument was cured by the prompt instruction to disregard the second argument. This is a non sequi-tur. The first objection was overruled. Therefore, the trial judge never instructed the jury to disregard the State’s initial improper argument. The trial judge’s instruction was directed only to the second argument and should not be stretched to apply to the argument to which appellant first objected.

In Orona v. State, 791 S.W.2d 125, 129 (Tex.Cr.App.1990), we held: “We do not reach the question whether the improper argument was cured because the trial judge overruled the objection and for that obvious reason, no instruction to disregard was given.” Finally, in similar circumstances we have held “[t]hat a trial judge, by overruling an objection to an improper argument, puts ‘the stamp of judicial approval’ on the improper argument, thus magnifying the possibility for harm.” Good v. State, 723 S.W.2d 734, 738 (Tex.Cr.App.1986) (quoting Burke v. State, 652 S.W.2d 788, 790 (Tex.Cr.App.1983). Therefore, the trial judge’s subsequent instruction did not cure the error caused by the State’s initial argument. 4

Although the majority recognizes the trial judge overruled the State’s first improper argument and specifically limited his instruction to the second argument, the majority chooses to “read the record to indicate that the trial judge realized his error and promptly instructed the jury to disregard the prosecutor’s argument.” Hughes v. State, 878 S.W.2d at 158 (Tex.Cr.App.1993) (opinion on rehearing). The majority’s action is not supported either by the record or by our case law. “In the instant case, the appellant lodged a timely objection which the trial court overruled, permitting the jury to believe the argument was proper....” Orona, 791 S.W.2d at 129 . It is highly improper for a majority of this Court to acknowledge error and then search the record to find a separate objection and an unrelated curative instruction to avoid conducting a harm analysis.

IV.

A harmless error analysis is required by Tex.R.App.P. 81(b)(2). 5 See, Orona, 791 S.W.2d at 129-130 (Rule 81(b)(2) applicable to improper jury argument) and Griffin v. State, 779 S.W.2d 431 (Tex.Cr.App.1989). Rule 81(b)(2) provides:

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that *161 the error made no contribution to the conviction or to the punishment.

In Harris v. State, 790 S.W.2d 568, 584 (Tex.Cr.App.1989), we recognized that Rule 81(b)(2) was the rhetorical and semantic equivalent of the harmless standard announced by the Supreme Court in Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), where it was held that the State had the burden of proving beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. 6

To perform a harmless error analysis an appellate court should consider six factors. In Harris , we held:

In summary, a reviewing court in applying the harmless error rule should not focus upon the propriety of the outcome of the trial. Instead, an appellate court should be concerned with the integrity of the process leading to the conviction [or punishment]. Consequently, the court should [1] examine the source of the error, [2] the nature of the error, [3] whether or to what extent it was emphasized by the State, and [4] its probable collateral implications. Further, the court should consider [5] how much weight a juror would probably place upon the error. In addition, the court must also determine [6] whether declaring the error harmless would encourage the State to repeat it with impunity. In summary, the reviewing court should focus not on weight of the other evidence of guilt [or punishment], but rather on whether error at issue might possibly have prejudiced the jurors’ decision-making; it should ask not whether the jury reached the correct result, but rather whether the jurors were able properly to apply law to facts in order to reach a verdict.

Harris, 790 S.W.2d at 587-588 .

The source of the error in the instant case involved an officer of the court, as it will in all eases of improper jury argument. When such an error is committed by one schooled and familiar with the intricacies of trial, the error is enhanced. Second, the nature of the error was to imply that appellant’s trial counsel had engaged in improper conduct when, as previously noted, the conduct was constitutionally mandated. Third, when the objection was overruled, the State did not abandon the argument but rather continued along the same line thus emphasizing the perceived impropriety on the part appellant’s trial counsel. In Orona , even though the defendant’s objection to the improper jury argument was overruled, the State “completely abandoned its argument.” However, we specifically noted: “If the State had sought to advance its argument after the objection, then an opposite result might be necessary.” Id. 791 S.W.2d at 130 . In the instant case, the prosecutor rather than abandoning the argument chose to advance the argument. Fourth, the probable collateral implications were that the jury would feel the cross-examination of T_ H_was improper and should not have been undertaken. This implication would be drawn because the general public does not understand the concept that defense attorneys are under an ethical obligation to represent the accused regardless of their personal opinion of their client. See, Boyde, 513 S.W.2d at 592 ; and Gomez, 704 S.W.2d at 772 . Fifth, while it is difficult to determine how much weight a juror would probably place upon the argument, any weight given to the argument was improper because appellant’s trial counsel did nothing more than discharge their constitutional duty to provide appellant with effective assistance of counsel.

Finally and, I believe, most importantly in the instant case, we must determine whether declaring the error harmless would encourage the State to repeat the improper argument with impunity. Since the enactment of Rule 81(b)(2), we have repeatedly held im *162 proper jury argument harmless. 7 Our past applications of Rule 81(b)(2) have effectively excluded improper jury argument from any meaningful appellate review. Our reluctance to reverse a case after finding improper jury argument only encourages the State to repeat the error with impunity. The vast majority of cases coming before this Court on direct appeal demonstrate that the State is repeatedly and consistently making improper jury arguments.

In light of the foregoing six factors of Hards, I cannot conclude beyond a reasonable doubt that the error did not contribute to the punishment assessed.

V.

Almost twenty years ago in Alejandro we paused to note,

[rjeeently we have had an alarming number of improper jury arguments to consider and it is hoped that the warning signal has been heard. Needless to say, the prosecutor sees all his trial work go for naught if the case has to be reversed because of improper jury argument.

Alejandro, 493 S.W.2d at 281 .

The teachings of Alejandro should not be ignored. The majority’s reluctance to penalize the State for improper jury argument only encourages the State to argue outside the four general categories of permissible jury argument. I would sustain point of error ten. 8

OVERSTREET and MALONEY, JJ., join this opinion.

. Unless otherwise indicated, all emphasis is supplied.

. All parties had made a prior agreement that the court would interpret the phrase, “I would move for further relief," as a motion for mistrial.

. The majority agrees. Hughes v. State, 878 S.W.2d at 158, fn. 10 (Tex.Cr.App.1993) (opinion on rehearing).

. This is not to say that on every occasion where the State continues an improper jury argument, after an erroneous ruling by the trial court, the error cannot be cured. However, to cure such error the trial judge must do more than provide a cursory instruction to the jury to merely disregard the improper comment. See, Long v. State, 823 S.W.2d 259, 269 (Tex.Cr.App.1991).

. Prior to the enactment of Tex.R.App.P. 81(b)(2) similar jury arguments constituted reversible error even when the trial judge sustained the objection and instructed the jury to disregard the argument. Bell v. State, 614 S.W.2d 122 (Tex.Cr.App.1981); Lewis v. State, 529 S.W.2d 533 (Tex.Cr.App.1975); Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974); Jones v. State, 205 S.W.2d 590 (Tex.Cr.App.1947). "In these cases, we found the argument so inflammatory as to be incurable by jury instruction." Gomez, 704 S.W.2d at 772 .

. The U.S. Supreme Court in Chapman held, ''Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment." Chapman v. California, 386 U.S. at 24 , 87 S.Ct. at 828 .

. See, Drew v. State, 743 S.W.2d 207 (Tex.Cr.App.1987); Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987); Bower v. State, 769 S.W.2d 887 (Tex.Cr.App.1989); Harris v. State, 784 S.W.2d 5 (Tex.Cr.App.1989); Griffin v. State, 779 S.W.2d 431 (Tex.Cr.App.1989); Jacobs v. State, 787 S.W.2d 397 (Tex.Cr.App.1990); Orona v. State, 791 S.W.2d 125 (Tex.Cr.App.1990); and Madden v. State 799 S.W.2d 683 (Tex.Cr.App.1990).

. Although appellant requests the Court to reform his sentence to confinement for life, the proper remedy is to remand this cause to the trial court.