Opinion
Nos. 05-04-01709-CR, 05-04-01710-CR, 05-04-01711-CR
Opinion issued October 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 416-80171-04, 416-80172-04, and 416-80173-04. Affirmed.
OPINION
Appellant Jack Anthony Carter appeals his convictions for three drug offenses following a joint trial before a jury on guilt-innocence and before the trial court on punishment. Two offenses were for drug possession and one offense was for possession with intent to deliver. In each appeal, appellant's sole point of error is that he was denied the Constitutional right to a fair trial by the prosecutor's misstatement at voir dire about the law relating to a defendant's right not to testify. For reasons that follow, we affirm.
In cause number 05-04-01709-CR, appellant was convicted of the state jail felony offense of possession of methamphetamine in an amount less than one gram and sentenced to eighteen months' confinement in a state jail facility. In cause number 05-04-01710-CR, appellant was convicted of the state jail felony offense of possession of marijuana in an amount of five pounds or less but more than four ounces and sentenced to eighteen months' confinement in a state jail facility. In cause number 05-04-01711-CR, appellant was convicted of possession with intent to deliver 3-4, methylenedioxymethamphetamine (commonly known as ecstasy) in an amount of four grams or more but less than 400 grams and sentenced to twenty years' imprisonment.
Background
After arresting appellant for shoplifting, Plano police officers sought appellant's permission to search his car for possible stolen merchandise. Using appellant's keys, the officers searched appellant's car and found what they believed to be ecstasy, marijuana, methamphetamine, and various drug paraphernalia. During voir dire, the following occurred:[Prosecutor]: A defendant has a right to testify or right not to testify. And ladies and gentlemen, I'll just say just because the defendant is presumed innocent, does not necessarily mean that he is presumed truthful. But if he hits the stand
[Defense counsel]: Objection Your Honor.
[Second defense counsel]: Objection Your Honor. That would be a comment on the defendant's election to testify or not testify. With all due respects, I have to object to that.
[The Court]: Overrule that objection.
[Prosecutor]: The defendant does not have to testify. There could be a million reason[s] why a defense attorney would tell a defendant you don't need to testify.For example, Mr. Oneal, a defense attorney might say, you know what, the State didn't prove their case, no reason for you to testify. That would be a reason that someone might not testify. Maybe someone has a studder [sic]. Maybe they have something that they don't want to come up when cross-examined.
Analysis
Appellant complains that the prosecutor's statements misstated the law regarding a defendant's right not to testify, were extremely improper and prejudicial, and ultimately prejudiced the jury's deliberations. Thus, appellant asserts, he was denied a fair trial. The State responds, in the alternatives, that appellant has not preserved his complaint, the prosecutor did not misstate the law, and any error was harmless.A. Preservation of Error
The State asserts that appellant did not preserve error because his complaint on appeal does not comport with his trial objection. To obtain appellate review, the complained-of error must be preserved. See Tex.R.App.P. 33.1. To preserve error, one must make a timely objection stating the grounds with sufficient specificity to make the trial court aware of the complaint. See id. 33.1(1). The legal grounds made on appeal must comport with the grounds asserted at trial. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004). At trial, appellant's objection was that the prosecutor's statement was a "comment on the defendant's election to testify or not testify." On appeal, recognizing case law is against him, appellant concedes the complained-of statement was not a comment on his failure to testify. See Campos v. State, 589 S.W.2d 424, 426 (Tex.Crim.App. [Panel Op.] 1979); Silva v. State, 989 S.W.2d 64, 67 (Tex.App.-San Antonio 1998, pet. ref'd). Appellant complains for the first time on appeal that the prosecutor misstated the law when she said one reason the law allows a defendant to not testify is because a defendant is not presumed to be truthful. Because appellant's complaints on appeal do not comport with his trial objection, he has not preserved his complaints. See Heidelberg, 144 S.W.3d at 537. Moreover, even assuming appellant's complaints are preserved, his contention that the prosecutor misstated the law on voir dire is without merit.B. Misstatement of the Law
Appellant contends the prosecutor misstated the law regarding a defendant's right not to testify, denying him a fair trial. In support of his argument, appellant relies on Godfrey v. State, 859 S.W.2d 583 (Tex.App.-Houston [14th Dist.] 1993, no pet.). In Godfrey, the Houston court reversed and remanded based on the following comments by the prosecutor during voir dire:[Prosecutor]: The Judge told you a defendant does not have to testify in his own behalf and that is absolutely fine. Look at the position he is in. I think possibly this is the reason the law says in the United States Constitution he does not have to testify on his own behalf ad the jury will be instructed to disregard it. That is important to the defense and me. We are looking for a fair jury that will follow the law. Look at his predicament a second: If he gets up here and testifies, he will say anything to save his own hide, he will get up there and lie.
[Defense Counsel]: Completely outside the realm of voir dire.
[The Court]: Overruled.
[Prosecutor]: But if he doesn't testify, he must be hiding something. So, the law says we are not going to put him in that predicament. He doesn't have to testify and you can't consider it.Id. at 584. The court held the prosecutor's statements were reversible error because they prejudiced the decision-making process of the jury denying appellant a fair trial and, further, the court could not determine beyond a reasonable doubt the error did not make a contribution to appellant's conviction or punishment. Id. at 586. The State responds that the prosecutor did not misstate the law. In support of its argument, the State points to the following additional statements made by the prosecutor:
[Prosecutor]: But what the law does say is that if the defendant doesn't testify, you cannot hold that against him. Each one of us has that right. So what the law says is you cannot even consider it. And the Judge gives it to you in the Charge.
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[Prosecutor]: Ladies and gentlemen, knowing that, is there anyone that's going to go ahead and ignore the law and say if he doesn't testify, that proves he's guilty? That's what the law doesn't allow you to do. Does everyone understand, he can testify, he doesn't have to. You cannot consider it if he doesn't.We conclude Godfrey is distinguishable and agree with the State that the prosecutor did not misstate the law. In Godfrey, the prosecutor essentially stated that the defendant had two choices: (2) to not testify; or (2) to testify and lie. See id. at 584. In the case before us, the prosecutor stated a defendant has a right to testify or to not testify. See U.S. Const. amend. V. The prosecutor added that just because a defendant is presumed innocent does not mean he is presumed truthful. The prosecutor did not go further to state that a defendant who did testify would "lie" and "say anything to save his hide," as did the prosecutor in Godfrey. See Godfrey, 859 S.W.2d at 584. We conclude the prosecutor correctly stated the law. It is within the exclusive province of the jury to determine the credibility of the witnesses, including a defendant. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). Therefore, the trial court did not err in overruling appellant's objection to the prosecutor's statements. We resolve appellant's issue against him in each of these cases. We affirm the trial court's judgments.