Cockrell v. State

MALONEY, Judge,

concurring.

The majority overrules appellant’s fifth point of error, alleging improper jury argument, on a couple of alternative grounds. I agree with the majority’s conclusion that appellant has not preserved error, but write separately to elaborate on that notion.

The majority holds that error was not preserved as to the bulk of the prosecutor’s argument due to appellant’s failure to object or pursue his objection to an adverse ruling. The majority acknowledges caselaw which holds that a defendant can raise improper jury argument for the first time on appeal if the argument is so prejudicial that an instruction to disregard could not have cured the harm, but concludes that these cases have been undermined by the enactment of Rule of Appellate Procedure 52(a) and our decision in Marin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993). Majority opinion at 99. I agree.

In Marin, supra, we explained that there are three kinds of “rights” in our system: (1) absolute requirements and prohibitions, (2) rights of litigants that must be implemented unless expressly waived, and (3) rights of litigants that are implemented upon request. The third type of right must be insisted upon at trial, ergo Rule 52(a), or nothing is presented for review. Marin, 851 S.W.2d at 280 . We recently explained forfeitability of rights within our system:

... the character of our law is such that the right to complain on appeal about most other trial errors is also contingent upon a specific pretrial or contemporaneous objection. ... [The Court of Appeals stated] that legal rights, even those assured by due process, are usually forfeitable by inaction. Clearly, the court was right about this. Because the law ordinarily expects litigants to insist upon their rights at a time when they can be implemented, appellate courts should not consider such rights to have been violated if the beneficiary was willing to forgo them at trial.

Ieppert v. State, 908 S.W.2d 217, 219 (Tex.Crim.App.1995).

Examples of error forfeited if not insisted upon at trial include Batson error, Batiste v. State, 888 S.W.2d 9 , 16 n. 5 (Tex.Crim.App.1994); Mathews v. State, 768 S.W.2d 731 (Tex.Crim.App.1989), defects in an indictment, Fisher v. State, 887 S.W.2d 49 , 54 n. 7 (Tex.Crim.App.1994); Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990), admission of a confession taken in violation of Fifth Amendment, Harris v. State, 827 S.W.2d 949 (Tex.Crim.App.), cert. denied, 506 U.S. 942 , 113 S.Ct. 381 , 121 L.Ed.2d 292 (1992); Taylor v. State, 489 S.W.2d 890 (Tex.Crim.App.1973), admission of extraneous offense evidence, Norris v. State, 902 S.W.2d 428 (Tex.Crim.App.), cer t. denied, — U.S. -, 116 S.Ct. 237 , 133 L.Ed.2d 165 (1995); Jacobs v. State, 787 S.W.2d 397, 406 (Tex.Crim.App.), cert. denied, 498 U.S. 882 , 111 S.Ct. 231 , 112 L.Ed.2d 185 (1990), and Witherspoon error, *95 Boulware v. State, 542 S.W.2d 677, 682-83 (Tex.Crim.App.1976), cert. denied, — U.S. -, 116 S.Ct. 237 , 133 L.Ed.2d 165 (1977). “Absolute systemic rights” are not subject to Rule 52(a) and do not have to be objected to in order to be raised on appeal. Marin, supra. Systemic rights include those that are statutorily or constitutionally mandated, or are otherwise not optional with the parties. See, e.g., Ex parte Sims, 868 S.W.2d 803 (Tex.Crim.App.1993)(penal code provision that “sentences shall run concurrently” is absolute requirement and cumulation order to contrary was not authorized by law, even with defendant’s consent); Powell v. State, 897 S.W.2d 307 (Tex.Crim.App.1994) (legislatively mandated effective date of statute is absolute systemic feature not subject to waiver), cert. denied, — U.S. -, 116 S.Ct. 54 , 133 L.Ed.2d 19 (1995); Stine v. State, 908 S.W.2d 429 (Tex.Crim.App.1995) (constitutional provision requiring judge to conduct proceedings in county seat where case pending is mandatory and nonwaivable); leppert, supra (constitutional ex post facto prohibition is fundamental systemic requirement that cannot be waived); Ex parte Hernandez, 906 S.W.2d 931 (Tex.Crim.App.1995)(constitutional provision that “jury shall be composed of twelve men” is nonwaivable). Absolute, systemic rights are rights that a litigant has no choice about:

Absolute requirements and prohibitions are independent of the litigants’ wishes. Marin, 851 S.W.2d at 279 . The implementation of these absolute requirements and prohibitions is not optional and is therefore, neither waivable nor forfeitable by any party. Id. In Marin we noted that the jurisdiction of the courts is the clearest example of such absolute systemic requirements and prohibitions- Besides jurisdiction, we can think of no less optional a requirement than the “effective date” of a statute.

Powell, 897 S.W.2d at 316 .

The majority concludes that the right to a trial free from improper jury argument falls within the third category of rights, those that must be insisted upon at trial or are not preserved for review.

Although improper jury argument can sometimes be so prejudicial as to amount to a due process violation, some due process claims can be waived. Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990)(defen-dant waived claim that admission of child video tape violated rights to confrontation and due process by failing to object at trial); Rogers v. State, 640 S.W.2d 248 (Tex.Crim.App.1982)(op. on second motion for reh’g)(lack of objection on due process grounds to failure to hold probation revocation hearing waived error); see also leppert, supra (acknowledging that due process rights can be waived). While improper jury argument is offensive and can be devastating to a defendant’s case, it is no less optional than other types of error that may be equally devastating but must be objected to, such as the wrongful admission of extraneous offense evidence or the admission of a coerced confession. 1 Prior caselaw that focuses on the curability of the harm in determining whether it is subject to procedural default rather than the type of right at issue does not square with Marin . Accordingly, I agree with the majority that improper jury argument is subject to contemporaneous objection under Rule 52(a) in order to preserve error for appeal.

I would also observe that the prior exception to the contemporaneous objection rule *96 has little or no reasoned basis. The exception has generally been stated as follows:

The general rule is that any impropriety in the prosecutorial argument is waived by a defendant’s failure to make a proper and timely objection, [citation omitted] An exception exists where the prosecutor’s argument is so prejudicial that an instruction to disregard will not cure the harm.

E.g., Briddle v. State, 742 S.W.2d 379, 389 (Tex.Crim.App.1987), cert. denied, 488 U.S. 986 , 109 S.Ct. 543 , 102 L.Ed.2d 573 (1988). In attempting to trace this exception to its source, it became apparent that the cases cited as authority therefor do not support it. 2 Moreover, the exception has never been applied by this Court. That is, in all of the cases stating the exception or purporting to apply it, there was either an initial objection to the argument (although the objection might not have been followed through to an adverse ruling) 3 or the Court concluded that the argument was not so prejudicial that an instruction to disregard could not have cured it. I could not locate a case reversed for improper jury argument where no initial objection was made to the argument. 4

There is a related exception set forth in prior easelaw — if a defendant objects to an improper jury argument and requests a mistrial, but does not request an instruction to disregard, error will not be deemed waived if the argument was so prejudicial that an instruction to disregard would not have cured it. See Johnson v. State, 611 S.W.2d 649, 650-51 (Tex.Crim.App.1981); Montoya v. State, 744 S.W.2d 15 (Tex.Crim.App.1987)(op. on reh’g), cert. denied, 487 U.S. 1227 , 108 S.Ct. 2887 , 101 L.Ed.2d 921 (1988). The importance of requesting an instruction to disregard logically depends upon whether the error could have been cured by such instruction. Montoya, 744 S.W.2d at 37 . If the argument is so inflammatory that an instruction to disregard would not cure it, then “the only request that would possibly yield relief [is] a motion for mistrial;” therefore, failure to request an instruction is of no moment. *97 Id. It is not clear whether the majority dispenses with this “exception” as well as the one discussed above. This “exception” should be maintained. Rule 52(a) requires a timely objection stating the grounds therefor and asking for the desired ruling. 5 When an objection is made, followed by a motion for mistrial in the case of argument that is so inflammatory that an instruction to disregard would be of no value, Rule 52(a) has been satisfied.

With these comments, I concur in the disposition of appellant’s fifth point of error and otherwise join the opinion.

MEYERS, J., joins.

. As Chief Justice Thomas, of the Tenth District Court of Appeals has observed,

Incurable harm does not arise only from improper jury argument. A defendant is often irreparably harmed by the improper introduction, without any objection, of evidence relating to extraneous offenses. He might get a reversal, but it would have to be on the basis of ineffective assistance of counsel, not on the basis of fundamental error resulting from the improper introduction of evidence. Campbell v. State, 900 S.W.2d 763, 775 (Tex.App.-Waco 1995)(Thomas, C.J., concurring). He further noted the odd dichotomy that exists under prior caselaw in that the improper introduction of extraneous offense evidence is subject to procedural default, but a prosecutor’s improper reference to an extraneous offense during argument, if proven to be incurably harmful, is not subject thereto. Id.

. For instance, Romo v. State, 631 S.W.2d 504 (Tex.Crim.App.1982), one of the cases expressly overruled by the majority, is often cited as authority for the exception. In Romo v. State, the exception is stated but not applied because the Court concluded that the argument there was not so prejudicial that an instruction to disregard could not have cured it. Romo cites Plunkett v. State, 580 S.W.2d 815 (Tex.Crim.App.1979)(op. on reh’g), Smith v. State, 541 S.W.2d 831 (Tex.Crim.App.l976)(op. on reh'g), cert. denied, 430 U.S. 937 , 97 S.Ct. 1565 , 51 L.Ed.2d 783 (1977), and Rodriquez v. State, 530 S.W.2d 944 (Tex.Crim.App.1975), as authority for the exception. Plunkett states the exception but does not apply it, apparently concluding that the argument was not so prejudicial that it could not have been cured by an instruction to disregard. Plunkett cites Smith and Rodriquez as authority. Neither Smith nor Rodriquez even refer to any such exception; both cases simply hold that no objection was made to the allegedly improper argument and therefore nothing was presented for review.

. In two cases that were reversed for improper jury argument, there was an initial objection, although it appears that no adverse ruling was obtained. In Lewis v. State, 529 S.W.2d 533 (Tex.Crim.App.1975), the defendant objected to the prosecutor’s argument, but it is not clear from the opinion whether the objection was sustained or overruled. We reversed the case based on the improper argument, citing Bray for the proposition that an instruction to disregard would not have removed the prejudice. In Bray v. State, 478 S.W.2d 89 (Tex.Crim.App.1972), the defendant objected to the juiy argument, but it does not appear from the opinion that he obtained a ruling on his objection. The Court said that “[ujnder the circumstances of this case the error was sufficiently preserved for review” and that the argument called for a reversal. The Court further stated that ”[i]f it could be argued that the error was not properly preserved, we conclude that an instruction to disregard would not have sufficed to have removed the prejudice.”

A later case discussing Lewis and Bray interpreted those cases as "resulting in reversal despite the fact that the objections were not properly preserved, the court holding that an instruction to disregard would not have cured the prejudicial effect of the statement.” Briddle, 742 S.W.2d at 389 .

.In the absence of an objection, reversal on appeal essentially means that the trial court should have sua sponte ordered a mistrial. This Court has recognized that in such circumstances, retrial could be barred by double jeopardy. Stiggers v. State, 506 S.W.2d 609, 612 (Tex.Crim.App.1974)(recognizing that where defendant did not request instruction-to disregard or motion for mistrial, if court had declared mistrial sua sponte further prosecution would have been barred by former jeopardy); Grant v. State, 472 S.W.2d 531, 533 (Tex.Crim.App.1971)(if court had granted mistrial on own motion, re-trial might have been prevented under jeopardy principles).

. Rule of Appellate Procedure 52(a) provides in part that:

In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party’s request, objection or motion.