No. 05-06-00441-CR
Opinion Filed November 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 6, Dallas County, Texas, Trial Court Cause No. F05-00764-Skx.
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
Opinion By Justice WRIGHT.
Talvis Deshun Goines appeals his conviction for aggravated assault. After the jury found appellant guilty, it assessed punishment at seventy-five years' confinement. In four points of error, appellant contends the trial court erred by (1) allowing certain testimony, (2) allowing certain argument by the State, and (3) submitting an incorrect jury charge. We overrule appellant's points of error and affirm the trial court's judgment.
Background
Appellant and Elvera Munoz were involved in a violent, "off and on" relationship for several years. Eventually, Munoz ended their relationship, although she and appellant would see each other from time to time. Munoz, who was living with her mother in Waxahachie, came to Dallas to visit her cousin. According to Munoz, she did not tell appellant she was coming to Dallas or that she would be staying at her cousin's apartment because she did not want appellant to know she was there. Nevertheless, late that night appellant knocked on the door of the apartment. Appellant came into the apartment, and the two began to argue and fight. Appellant bit Munoz, and Munoz choked him with a cord. After a time, the two calmed down and fell asleep. The next morning, Munoz's cousin saw where appellant had bitten Munoz and told appellant to leave the apartment. Appellant insisted that Munoz leave with him. When she refused, appellant pulled a knife from his pocket and stabbed Munoz in the back. Munoz struggled with appellant as he dragged her through the apartment. Eventually, appellant dragged her into the bedroom and pushed her through the second-floor window. As she hung from the window, appellant pried her hands free and she fell to the ground, knocking her unconscious. Munoz woke to find appellant standing over her. When she tried to get up, he cut her face and stabbed her in the neck with broken glass from the window. As he did so, appellant told her that if he was going to go to jail it was going to be "for murder, not for an assault." After hearing this and other evidence, the jury found appellant guilty of aggravated assault with a deadly weapon. Prior Consistent Statement
In his first point of error, appellant contends the trial court reversibly erred by admitting Munoz's statement to the police as a prior consistent statement. We disagree. Assuming the trial court erred by admitting the complained-of statement, we conclude any error was harmless. We disregard error in the admission of evidence unless it affects the defendant's substantial rights. Tex.R.App.P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if we have a "fair assurance that the error did not influence the jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). In making this determination, we consider everything in the record, including evidence of appellant's guilt, the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error. Rich v. State, 160 S.W.3d 575, 577-78 (Tex.Crim.App. 2005); Motilla, 78 S.W.3d at 355. Here, the evidence of appellant's guilt is strong. In his statement to the police, appellant admitting to stabbing Munoz. On direct examination, Munoz testified to the same version of the incident as in the complained-of statement that was later read to the jury. Munoz's testimony was corroborated by her injuries, the physical evidence, and her cousin's testimony. Once the complained-of statement was read to the jury, the State did not emphasize Munoz's statement and did not mention it in closing argument. Under these circumstances, we cannot conclude admitting the complained-of statement affected appellant's substantial rights. After considering the entire record, we have a fair assurance that the error either did not influence the jury or had only a slight effect on the jury's verdict. We overrule appellant's first point of error. Improper Argument
In his second point of error, appellant contends the trial court erred by overruling his objection to improper jury argument. In particular, appellant complains the trial court should not have allowed the prosecutor to argue that the "defense attorney is going to try and get up here and confuse you and help you lose focus of the facts and what actually happened." Proper jury argument is limited to four general areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answering the defense's argument; and (4) pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). Although the State contends the complained-of argument was a reasonable deduction from the evidence based on the defensive theory of the case, we cannot agree. Legitimate arguments by defense counsel cannot serve as a basis for permitting prosecutorial comments that "cast aspersion on defense counsel's veracity." Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App. 1995). Here, the argument referred to counsel personally and, although not saying so explicitly, it suggested that counsel wanted to divert the jury from the truth. Thus, we conclude the argument was inappropriate. See Mosley, 983 S.W.2d at 259 ("The defense has attempted to get you off the main road [to the truth], to divert you. They don't want you to stay on the main road because they know where that will take you.); Dinkins, 894 S.W.2d at 357 (Defense counsel "wants to mislead you a little bit."). Improper comments about defense counsel's honesty are characterized as falling outside the areas of permissible argument and constitute "other errors" within the purview of rule of appellate procedure 44.2(b). Mosley, 983 S.W.2d at 259. Thus, we will disregard the error if it does not affect appellant's substantial rights. See id. When making this determination, we consider three factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) any measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Although improper, the complained-of argument did not directly accuse the defense attorney of lying, and did not suggest that any evidence was manufactured. Rather, the prosecutor implied defense counsel was attempting to distort the jury's view of the evidence through clever argument. Such a comment does not inject new facts into the record, and the jury is in a position to evaluate the truthfulness of the prosecutor's assertion. Thus, we conclude the degree of misconduct was not severe. The comment was not reiterated or emphasized by the State and comprised a single sentence within the State's argument. As to the second factor, the trial court gave no curative instruction because it overruled appellant's objection. Finally, as discussed above, the evidence of guilt in this case was strong. Given that the comments were not severe and the strength of the State's case, we find the error to be harmless. We overrule appellant's second point of error. Charge Error
In his third and fourth points of error, appellant contends the trial court submitted an incorrect charge to the jury. In particular, appellant claims the trial court erred by defining reasonable doubt and by instructing the jury regarding "good time credit." Both of appellant's complaints lack merit. In his third point of error, appellant contends the trial court's instruction that "[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all `reasonable doubt' concerning the defendant's guilt" constituted egregious harm. According to appellant, this instruction violates the holding in Paulson v. State, 28 S.W.2d 570, 573 (Tex.Crim.App. 2000). In that case, the court of criminal appeals stated that "the better practice is to give no definition of reasonable doubt at all to the jury." Id. at 573. However, the complained — of portion of this charge does not define what is meant by reasonable doubt. It merely instructs the jury on the State's burden to prove beyond a reasonable doubt the elements of the crime for which appellant was charged. Thus, we conclude the instruction does not violate Paulson and it is not erroneous. See Bates v. State, 164 S.W.3d 928, 931 (Tex.App.-Dallas 2005, no pet.); O'Canas v. State, 140 S.W.3d 695, 702 (Tex.App.-Dallas 2003, pet. ref'd). We overrule appellant's third point of error. In his fourth point of error, appellant contends the trial court erred by instructing the jury on the availability of good conduct time credit because he is ineligible for a reduction, due to good conduct, in the time he has to serve because he was convicted of aggravated assault with a deadly weapon. See Tex. Gov't Code Ann. § 508.149(a)(1) (Vernon 2004). According to appellant, because he is not eligible for release on mandatory supervision regardless of how much good time he might accrue, and because he cannot be eligible for parole any sooner than he would be without "good conduct time" credits, the court should not have included the instruction as it was misleading to the jury. Appellant fails to acknowledge, however, that the court of criminal appeals specifically held in Luquis v. State, 72 S.W.3d 355 (Tex.Crim.App. 2002), that a trial court does not commit error when it instructs the jury, as required, on the availability of good conduct time, even if the defendant is ineligible for a reduction of time. Id. at 363. We overrule appellant's fourth point of error. Accordingly, we affirm the trial court's judgment.