concluding, where waiver form stated “any statement I make may be used in evidence against me at trail [sic],” that “[t]he warnings on the face of appellant’s confession substantially comply” with article 38.22, § 2 even though “they do not state appellant’s statement can be used against him at ‘trial’ or in ‘court’”
How later courts described this case
- concluding, where waiver form stated “any statement I make may be used in evidence against me at trail [sic],” that “[t]he warnings on the face of appellant’s confession substantially comply” with article 38.22, § 2 even though “they do not state appellant’s statement can be used against him at ‘trial’ or in ‘court’”
- holding that "[b]efore a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling"
- holding that “to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument,” defendant “will have to show he objected and pursued his objection to an adverse ruling”
- holding that [defendant] waived appellate review of his claim that prosecutor impermissibly commented during closing argument of guilt‑innocence stage of assault trial on defendant=s failure to testify, where no objection was lodged
Written by the judges who cited it.
The opinion
MANSFIELD, Judge,
concurring.
I join the opinion of the Court, but I write separately to address some of the concerns raised by the concurring and dissenting opinions with respect to appellant’s fifth point of error. In that point of error, appellant contends the trial court erred in denying his request for a mistrial on the ground the State’s jury argument impermissibly attacked appellant over the shoulders of counsel by impugning counsel.
Ronald Alexander, an associate professor of education at the University of Texas at San Antonio, testified at trial for appellant. Alexander testified as to his examination of appellant and as to several tests he administered to appellant to measure his intelligence, reading skills, and comprehension skills. He testified farther it was his opinion appellant could not read or understand the written confession he had signed and which was admitted at trial. During cross-examination, the State elicited an admission from Alexander that he had not asked appellant to read his confession, nor did he conduct any examination of appellant to determine if he understood or comprehended what his confession meant or what significance it had.
At final argument, the prosecutor told the jury: “If you noticed, when Mr. Alexander spoke to you he didn’t even get near the confession. He didn’t even talk to you about it. He was scared to.”
Counsel for appellant objected to the prosecutor’s comment as being conclusory and as being an impermissible attempt to get to appellant by striking at him through his lawyers. The trial court sustained the objection and instructed the jury to disregard the comment by the prosecutor. Appellant’s request for a mistrial was denied.
We have held that, to constitute proper jury argument, the argument must encompass one or more of the following: (1) summation of the evidence presented at trial, (2) reasonable deduction from that evidence, (3) answer to opposing counsel’s argument, or (4) a plea for law enforcement. McFarland v. State, 845 S.W.2d 824, 844 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963 , 113 S.Ct. 2937 , 124 L.Ed.2d 686 (1993); Gaddis v. State, 753 S.W.2d 396 (Tex.Crim.App.1988). Jury arguments must be extreme or manifestly improper, or inject new and harmful facts into evidence, to constitute reversible error. Gaddis, supra, at 398 .
The prosecutor’s comment here, in my opinion, is not an example of the kind of jury argument that was so prejudicial that the trial court’s instruction to disregard was not sufficient to cure it. The prosecutor did not inject new and harmful facts into evidence, nor did he expressly or implicitly accuse defense counsel of lying, suborning perjury, or manufacturing evidence, the kind of arguments this Court has properly condemned. See Johnson v. State, 611 S.W.2d 649 (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). Accordingly, the trial court’s instruction to the jury to disregard this portion of the State’s argument cured any error.
*98 However, appellant directs us to another portion of the State’s argument which I find considerably more troubling. After the trial court instructed the jury to disregard the portion of the State’s argument discussed above, the State made the following argument:
I am going to talk to you about the confession. I will talk to you about Dr. Alexander. He was hired for one purpose, ladies and gentlemen. He was hired by those men for one purpose and that was to come in here and take the stand and mislead you and lie to you and tell you that their client did not give that confession. And you should be appalled by that.... He never read the confession to [appellant] .... Why didn’t the doctor do that? Because he would not have been able to take that stand and tell you that [appellant] could not understand this confession. That is deplorable, ladies and gentlemen, to attempt that tactic. And why didn’t he do that? Well, is it because he’s getting paid to support the theory that they have? I don’t know. Is it because he wanted to shade his testimony? I don’t know. Or is it because he is against the death penalty and didn’t want to see this man found guilty on the best piece of evidence that would [convict him]?
Appellant objected to this argument as improper, objecting that “this is the guilt stage and the prosecutor is referring to punishment.” Appellant did not object to this argument as an improper attack on appellant over the shoulders of counsel. The trial court sustained the objection. Appellant did not ask for a timely instruction to the jury to disregard the argument.
The above argument by the State does, to some extent, accuse counsel for appellant of putting Alexander on the stand to lie and to mislead the jury. Such argument is clearly improper and, arguably, falls under the exception recognized in Romo v. State, 631 S.W.2d 504 (Tex.Crim.App.1982) (neither a contemporaneous objection nor a timely request for an instruction to disregard is necessary to preserve error with respect to prose-cutorial argument so manifestly prejudicial that an instruction to disregard would not have cured the harm).
Texas Rule of Appellate Procedure 52(a) provides: “In order to preserve a complaint for appellate review, a party must have presented to the 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....” As appellant did not offer at trial a timely objection on the ground now raised to the portion of the argument at issue on appeal, Rule 52(a), on its face, appears to preclude him from doing so on appeal.
The right to a trial free of improper jury argument is not a systemic or constitutional right not subject to waiver. Systemic or constitutional rights not subject to waiver include: the effective date of a statute, Powell v. State, 897 S.W.2d 307 (Tex.Crim.App.1994); constitutional provision regarding where trial proceedings must be conducted, Stine v. State, 908 S.W.2d 429 (Tex.Crim.App.1995); and composition of the jury, Ex parte Hernandez, 906 S.W.2d 931 (Tex.Crim.App.1995). We have held that systemic or constitutional rights such as those described above are not subject to Rulé 52(a) and, even in the absence of a timely objection at trial, may be raised for the first time on appeal. Marin v. State, 851 S.W.2d 275 (Tex.Crim.App.1993). Such rights are independent of the wishes of the parties and, as such, may not be waived. Marin, supra, at 279 .
An improper jury argument is a classic example of a trial error that is peculiar to the trial in which it occurs. Unlike the constitutional requirement that a jury be comprised of twelve persons, Ex parte Hernandez, supra, a violation of which implicates the entire criminal justice system, it is hard to posit that an improper jury argument has any effect beyond the trial in which it occurred.
Accordingly, I agree with the dissent that the jury argument with respect to Alexander was improper and prejudicial. However, because appellant failed to offer a proper and timely objection, he failed to preserve error and is precluded by Rule 52(a) and Marin, supra, from raising the argument on appeal. To the extent that they conflict with Rule *99 52(a), I agree that Romo and its progeny have been overruled.
With these comments, I join the opinion of the Court.