Opinion
No. 10-01-393-CR
Opinion delivered and filed August 4, 2003. DO NOT PUBLISH.
From the 54th District Court, McLennan County, Texas, Trial Court # 2000-879-C. AFFIRMED
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
MEMORANDUM OPINION
A jury found Reyes Guadalupe Gonzalez guilty of two counts of sexual assault and assessed his punishment for each count at ten years in prison. The judgment orders the sentences to run concurrently. Gonzalez complains in three issues about parts of the prosecutor's punishment phase argument. The issues are that the trial court erred by: 1) overruling his objection to the State's argument asking the jury to place themselves in the victim's shoes; 2) denying his request for a mistrial based on the State's argument concerning the impact the assault had on the victim's four-year old son; and 3) overruling his objection to an improper plea for law enforcement. We affirm the judgment of the trial court. Because the first and third issue are each analyzed under the same standard of review, we will address them individually before moving on to Gonzalez's issue regarding the denial of his mistrial request.
JURY ARGUMENT
Jury arguments are proper if they fall within the following four categories: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to the argument of opposing counsel, and (4) plea for law enforcement. Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App. 1997); Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App. 1973); Carlock v. State, 8 S.W.3d 717, 723 (Tex.App.-Waco 1999, pet. ref'd). If the trial court errs in overruling an objection to improper jury argument, we determine whether the argument was harmless. See Coble v. State, 871 S.W.2d 192, 205 (Tex.Crim.App. 1993).Victim's Terror
The trial court overruled Gonzalez's objection to the following argument by the prosecutor:You know, I want you to go back there and before you come back with a verdict, I want you to think about what all happened in that bedroom number 3. That morning as she had that man, who took on two police officers, beating her, choking her, screaming at her; suffocating her and then penetrating her and I want you to imagine her terror.Gonzalez asserts the argument does not fall into one of the four categories of proper jury argument, but instead, is a request for the jury to place themselves in the shoes of the victim. We disagree. Granted, a plea for abandonment of objectivity does not fit within the four categories of proper jury argument. See Brandley v. State, 691 S.W.2d 699, 712 (Tex.Crim.App. 1985). However, there is a distinction between asking the jury to fully appreciate the victim's pain and suffering, which is proper, and asking how the victim would want the defendant punished, which is improper. See Torres v. State, 92 S.W.3d 911, 922 (Tex.App.-Houston [14th Dist.] 2002, no pet.); see also Linder v. State, 828 S.W.2d 290, 303 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). In the first instance, the prosecutor is merely summarizing the evidence, making a reasonable deduction from the evidence, or making a legitimate plea for law enforcement. Torres, 92 S.W.3d at 922. In the second instance, the prosecutor is asking the jury to assess punishment not on an impartial, objective notion of justice, but on personal passions "accelerated by the outrage every human being naturally feels toward one who has wrongfully caused him pain, embarrassment, grief, or loss." Id. Here, the prosecutor's argument is a summation of the evidence. Gonzalez testified that he and the victim physically fought for twenty-five to thirty minutes. Gonzalez admitted to pushing the victim down so that she hit the dresser, then grabbing her by the hair and pulling her up, pushing her down again where she hit her shoulder on the dresser, picking her up again, this time tearing her ear lobe, striking her face, and shaking her. Testimony by the victim and her son also reflects the physical brutality Gonzalez inflicted on the victim. The record reflects Gonzalez had fought with two police officers. It also reflects that he beat, attempted to strangle, attempted to suffocate , and penetrated the victim. Additionally, Kim Deyo, the victim's sister, testified that the victim was very upset and frightened after the fight and sexual assault. Because the argument made by the prosecutor was a summation of the evidence, and thus within one of the four categories of proper jury argument, the trial court did not err by overruling Gonzalez's objection. We overrule Gonzalez's first issue.
Plea for Law Enforcement
The trial court also overruled Gonzalez's objection to the following argument by the prosecutor:Look at this resume; he's gone from shop lifting at the mall to sexually assaulting and beating up a woman and in the middle of there is beating up a police officer. That is the man that you are sentencing. Is that the kind of case that the citizens of McLennan County expect to be put on probation and be put back on the street?Gonzalez objected to this argument as an "improper plea for law enforcement." On appeal, his specific complaint is that the argument is improper because it suggested the citizens of McLennan County expected the jury to punish Gonzalez with a prison sentence instead of community supervision. Although the State initially contends that Gonzalez did not preserve his complaint for appellate review because there is "no such thing as 'improper plea for law enforcement,'" we believe Gonzalez's objection gave fair notice to the trial court of his complaint that the argument put forth by the prosecutor was improper because it did not fall under one of the four categories of proper jury argument. It is improper for the prosecutor, during closing argument, to try to induce the jury to give a specific punishment to a defendant because the community desires or expects a guilty verdict or a certain punishment. Borjan v. State, 787 S.W.2d 53, 56 (Tex.Crim.App. 1990); Cortez v. State, 683 S.W.2d 419, 420 (Tex.Crim.App. 1984). A prosecutor does not necessarily make an improper appeal to the community's desires just by referring to the community during argument. Rivera v. State, 82 S.W.3d 64, 69 (Tex.App.-San Antonio 2002, pet. ref'd); Caballero v. State, 919 S.W.2d 919, 924 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). But if the argument asks the jury to listen to the community rather than being the voice of the community, the argument is improper. Prado v. State, 626 S.W.2d 775, 776 (Tex.Crim.App. 1982). The prosecutor concluded an extensive passage of her argument with the statement to which Gonzalez objects. In this passage of her argument, the prosecutor reviewed for the jury Gonzalez's prior convictions and increasingly violent behavior and then ended by asking if the jury thought the community would want Gonzalez placed on probation. The prosecutor did not state in her argument that the citizens of McLennan County expected or demanded the jury sentence Gonzalez to a specific punishment nor did she urge the jury to ignore the evidence or the law in making their punishment decision. But rather than asking the jurors to speak for the community and to make a statement for the community by the punishment assessed, she essentially asked the jurors to lend an ear to the punishment the community expected. This is improper and the trial court erred in overruling Gonzalez's objection. Our inquiry, however, is not over. We now must decide if the argument, though improper, was harmless. Most comments that fall outside the areas of permissible argument will be considered to be error of the non-constitutional variety. Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000). Rule 44.2(b) provides that a non-constitutional error "that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). We review harm in light of the entire record. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997); see also Motilla v. State, 78 S.W.3d 352, 357 (Tex.Crim.App. 2002) and Martinez, 17 S.W.3d at 693. Determining harm under that standard in improper argument cases requires balancing the following three factors: (1) severity of the misconduct (prejudicial effect), (2) curative measures, (3) the certainty of the punishment assessed. Martinez, 17 S.W.3d at 693; Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). Because the objection was overruled, there were no curative measures taken. However, the impropriety of the argument was not severe and, even though the jury did not recommend community supervision, the evidence suggests that the jury was entitled to disregard Gonzalez's request for community supervision. We conclude the trial court's error was harmless. Gonzalez's third issue is overruled.
DENIAL OF MISTRIAL
When the trial court sustains an objection to improper jury argument and grants a request for an instruction for the jury to disregard but denies the motion for mistrial, the issue becomes whether the trial court erred in denying the mistrial. Carlock v. State, 8 S.W.3d 717, 723 (Tex.App.-Waco 2000, no pet.); Faulkner v. State, 940 S.W.2d 308, 312 (Tex.App.-Fort Worth 1997, pet. ref'd). The trial court's decision is error only if the argument is extreme, manifestly improper, injects new and harmful facts into the case or violates a mandatory statutory provision and was so inflammatory that its prejudicial effect cannot be reasonably removed from the minds of the jury by an instruction to disregard. Carlock, 8 S.W.3d at 723; Washington v. State, 822 S.W.2d 110, 118 (Tex.App.-Waco 1991), rev'd on other grounds, 856 S.W.2d 184 (Tex.Crim.App. 1993); see also Trent v. State, 925 S.W.2d 130, 133 (Tex.App.-Waco 1996, no pet.). If the instruction to disregard cured the prejudicial effect caused by the improper argument, the reviewing court should find that the trial court did not err in denying the motion for mistrial. Carlock v. State, 8 S.W.3d 717, 723-24 (Tex.App.-Waco 2000, no pet.). But if the instruction did not cure the prejudicial effect, error results, and the reviewing court proceeds with a harm analysis. Id. at 724; Washington v. State, 822 S.W.2d at 118.Instruction
The trial court sustained Gonzalez's objection to the prosecutor's argument regarding the victim impact evidence of the victim's son. The following statements were made:Prosecutor: You recall those facts. You are allowed to look at all those facts and to evaluate what he did and I want to remind you that her sons where there. Her 4-year old son saw him put the pillow over mommy's head. He saw the defendant make her take her pants off and you think about what that did to him.
Defense: Your Honor, I'm going to object. That is victim impact evidence. That is not allowable in this trial. We had a prior conference about that; that is improper.
Court: Sustain the objection. Instruct the jury to disregard it.
Defense: I'm going to move for a mistrial, Your Honor.
Court: Overruled.While the prosecutor's remarks recalling that the victim's son observed the physical and sexual assaults were a summary of the evidence, the remark asking the jury to think about what seeing the assaults did to him was outside the record. However, the prosecutor made only one reference to this information. The trial court immediately sustained Gonzalez's objection and instructed the jury to disregard the statement. The prosecution presented ample evidence sufficient to convict Gonzalez and to support a lengthy time in prison. This evidence included the testimony of the victim's four year-old son, which recounted what he saw Gonzalez do to the victim and his failed efforts to get help for his mother, and which corroborated the testimony of the victim. The jury had the option of sentencing Gonzalez to two to twenty years in prison with a fine of up to $10,000 but, sentenced him to ten years in prison with no fine imposed, rejecting his request for community supervision. We conclude the trial court's instruction cured the prejudicial effect, if any, caused by the State's argument. Thus, the trial court did not err in overruling the motion for mistrial. Gonzalez's second issue is overruled.