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
BAIRD, Judge,
dissenting.
The fifth point of error contends portions of the State’s closing argument at the guilt-innocence phase of the trial were improper comments which struck at appellant over the shoulder of trial counsel. 1 The portion complained of in the State’s argument focused on defense witness, Dr. Ronnie Alexander, an associate professor of educational psychology, who testified appellant was unable to comprehend his confession due to his first grade reading level. The State accused both Dr. Alexander and defense counsel of purposefully lying about appellant’s illiteracy and education level in an effort to reduce the credibility of appellant’s confession. Appellant specifically complains of the following jury argument:
STATE: If you noticed, when [defense counsel] spoke to you he didn’t even get near the confession. He didn’t even talk to you about it. He was scared to.
DEFENSE: I object to that. That is a conclusion on his part.
STATE: See?
TRIAL JUDGE: Sustained.
DEFENSE: He’s trying to get trying to get to the Defendant through striking through his lawyers.
TRIAL JUDGE: I sustain the objection.
DEFENSE: I ask the jury be instructed as to the comment by the prosecutor.
TRIAL JUDGE: The jury will be instructed to disregard the last comment by the prosecutor.
DEFENSE: I ask for a mistrial.
TRIAL JUDGE: That will be denied.
STATE: 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.
⅜ ⅜ ⅜ ⅜ ⅜ ⅝
He never read the confession to [appellant]. And if you notice, he was never questioned by [defense counsel] about the contents of the confession as to whether or not if he had read it could he have understood it.
⅜ ⅜ ⅜ ⅝ ⅜ ⅝
Why didn’t the doctor do that? Because he would not have been able to take that stand and tell you that the [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. Is it because he’s a liar? I don’t know. Or is it because he’s against the death penalty and didn’t want to see this man found guilty on the best piece of evidence that would ...
DEFENSE: Excuse me. Judge, I object to this improper argument. This is the guilt stage and the prosecutor is referring to punishment.
STATE: They have raised it in their argument, Judge. Certainly [defense counsel] raised it.
TRIAL JUDGE: All right. I will sustain the objection.
I.
The majority holds appellant forfeited his right to complain about the argument on appeal because there was no contemporaneous objection at trial. The contemporaneous objection rule is found in Tex.R.App. P. 52(a) which provides:
Preservation of Appellate Complaints
(a) In order to preserve a complaint for appellate review, a parly must have pre *100 sented 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....
Rule 52(a) was promulgated to codify the existing case law which prescribed the manner for preserving error.
Prior to promulgation of Rule 52(a), we operated under the general rule that any impropriety in the prosecutorial argument was waived by a defendant’s failure to make a proper and timely objection. Briddle v. State, 742 S.W.2d 379, 389 (Tex.Cr.App.1987). However, an exception was recognized where the prosecutor’s argument was so prejudicial that an instruction to disregard would not cure the harm. Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982), and cases cited therein. See also, Motley v. State, 773 S.W.2d 283, 293 (Tex.Cr.App.1989). The exception was necessary because extreme arguments create a circumstance where it is impossible to withdraw the impression produced in the jurors’ mind. Rodriguez v. State, 646 S.W.2d 539, 542-543 (Tex.App.-Houston [1st Dist.] 1982). Consequently, neither an objection nor an instruction to disregard were necessary to preserve error.
The majority cites Marin v. State, 851 S.W.2d 275 (Tex.Cr.App.1993), to suggest that rule 52(a) modified or “undermined” this longstanding exception. Ante, at 89. The majority states:
However, a defendant’s “right” not to be subjected to incurable erroneous jury arguments is one of those rights that is forfeited by a failure to insist upon it. See, Marin, 851 S.W.2d at 279 ....
Ante, at 89.
This reasoning represents a misstatement of the holding in Marin , where we specifically stated: “Rule 52(a) was meant to reaffirm these basic principles of adversary litigation, not to amend or repeal them.” Marin, 851 S.W.2d at 280 . Neither rule 52(a) nor Marin , modify the basic principles that guarantee a defendant a fair trial. Rather both must be read to include situations where the error is so egregious no instruction will cure the harm. Under this reading the exception to the contemporaneous objection requirement survived the promulgation of rule 52(a). Indeed, we recognized its continued viability in Harris v. State, 827 S.W.2d 949, 963 (Tex.Cr.App.1992). 2 The majority errs to hold otherwise.
II.
Recognizing the continued existence of the exception, we must now determine whether the State’s jury argument was improper and if so whether it was of such a prejudicial nature as to fit within the exception.
Jury argument must be confined to four permissible areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. Campbell v. State, 610 S.W.2d 754, 756 (Tex.Cr.App.1980); and, Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Cr.App.1973). The instant State’s jury argument does not fall within any of the four areas of permissible jury argument. See, Campbell, 610 S.W.2d at 756 .
Appellate courts should not hesitate to reverse when it appears the State has departed from one of these areas in argument and has engaged in conduct calculated to deny an accused a fair and impartial trial. Johnson v. State, 604 S.W.2d 128, 135 (Tex.Cr.App.1980). The test to determine whether an improper argument constitutes reversible error is whether: (1) the argument is violative of a statute or, (2) it injects a new and harmful fact into the case, or (3) it is manifestly improper, harmful and prejudicial to the rights of the accused. Thompson v. State, 480 S.W.2d 624, 630 (Tex.Crim.App.1972); Briddle, 742 S.W.2d at 389 -390 (quoting Todd v. State, 598 S.W.2d 286, 297 (Tex.Cr.App.1980)).
*101 For many years this Court has recognized prosecutor’s arguments which personally attack defense counsel are manifestly improper because they serve to inflame the minds of the jury to the accused’s prejudice. In Jones v. State, 151 Tex.Crim. 115 , 205 S.W.2d 590 (1947), the State, in closing argument, accused defense counsel of manufacturing evidence. The State argued:
I have heard of Dusty Miller [defense counsel] for many years. When I first came to this country I heard of men that Dusty Miller had cleared of murder by the machinations of a great mind and a shrewd mind. My dear fellow, you needn’t have worried one minute because Dusty Miller will take care of everything and furnish the evidence. ...
Jones, 205 S.W.2d at 592 . Even though the trial judge sustained the objection and instructed the jury not to consider the argument, this Court ordered a reversal.
In Bray v. State, 478 S.W.2d 89 (Tex.Cr.App.1972), the prosecutor argued:
... We represent the people here in this County. That’s who are employer is and suffice it to say Ladies and Gentlemen I am grateful and I shall be eternally grateful that you are the people that are my . employers and not the likes of him and that I am not representing this sort of thing. Rest assured I am very happy about that. I am grateful that I don’t have to make my living that way.
Bray, 478 S.W.2d at 89 . This Court found the argument to be so extreme as to require a reversal because an instruction to disregard the State’s prejudicial argument would not have sufficed to have removed the prejudice. Id. at 90 . See also, Summers v. State, 147 Tex.Crim. 519 , 182 S.W.2d 720 (1944).
In Fuentes v. State, 664 S.W.2d 383 (Tex.Cr.App.1984), we held the State made an improper remark as to the moral character of defense counsel. The State, objecting to the cross-examination by defense counsel, stated:
Oh Judge, we object to that, he is in bad faith like usual and we object to it. That is a bunch of garbage and he knows it.
Fuentes, 664 S.W.2d at 335 (emphasis in original). The trial judge sustained the State’s objection and denied defense counsel’s objection to the above remark made by the State. “It is axiomatic that the State may not strike at a defendant over the shoulders of his counsel or accuse defense counsel of bad faith and insincerity.” Ibid. We held the “prosecutor’s comment was manifestly improper, harmful, and prejudicial, thus constituting reversible error.” Id. at 337.
In Bell v. State, 614 S.W.2d 122 (Tex.Cr.App.1981)(panel op.), the State during jury argument at the guili/innocenee phase of the trial argued:
Defense counsel is a criminal defense lawyer. He doesn’t have the same duty I do. He represents the criminal. His duty is to see that his client gets off even if it means putting on witnesses who are lying.
Bell, 614 S.W.2d at 123 . The Court held the prosecutor was striking at the defendant over the shoulder of counsel in an attempt to prejudice the jury against appellant. Ibid. The Court further held the trial judge’s instruction to disregard the argument was not sufficient to have removed the prejudice it created. Ibid.
Finally, in Gomez v. State, 704 S.W.2d 770 (Tex.Cr.App.1985), this Court again reversed a case where the State used an improper jury argument. The State argued:
... We are not paid to satisfy [defense counsel], or anyone else that he drags down here from Lubbock to manufacture evidence. And you are not — ...
Gomez, 704 S.W.2d at 771 (emphasis in original). Defense counsel’s objection was sustained and the jury was instructed to disregard the comment. The State immediately began its argument on the same point:
It was designed to make you not lose sight of the fact that [defense counsel] is paid to get this defendant off the hook. And if you can’t get him off the hook, get him a little lesser included offense of some kind.... That’s what he is paid for. Don’t forget that.
Ibid. The trial judge overruled defense objections. We held: “[t]his Court has shown a special concern for final arguments that eon- *102 stitute uninvited and unsubstantiated accusation of improper conduct directed at a defendant’s attorney.” Ibid. The Court was unanimous in its conclusion that reversal was required because the cumulative effect of the two arguments was to deny the defendant a fair and impartial trial. Id. at 773 .
III.
The instant argument is in the league of those set forth above. It was so prejudicial that it meets the exception to the contemporaneous objection requirement of Rule 52(a) because an instruction to disregard would not have cured the harm. Romo v. State, 631 S.W.2d 504 (Tex.Cr.App.1982). Similarly, the argument was manifestly improper, harmful, and prejudicial, thus constituting reversible error. Fuentes, 664 S.W.2d at 337 . Accordingly, I would sustain the fifth point of error and reverse the judgment of the trial court. Because the majority does not, I respectfully dissent.
OVERSTREET, J., joins this opinion.
. Appellant's point of error reads:
The trial court erred in denying appellant's request for mistrial because of the prejudicial jury argument of the prosecution attacking defense counsel thus striking at appellant over the shoulders of his attorney.
. Specifically, the Harris Court stated:
If the prosecutor strays outside these areas, the defendant, to preserve error, must object until receiving an adverse ruling. An exception to this contemporaneous objection requirement exists when the prosecutor’s argument is so prejudicial that an instruction to disregard the argument could not cure the harm. ...
Harris, 827 S.W.2d at 963 [emphasis added].