Opinion
NO. 02-16-00201-CR
11-16-2017
CAUSEY EGLOFF, JR. APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2014-1883-E MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
Appellant Causey Egloff, Jr. pleaded guilty to two counts of accident involving personal injury, and the jury assessed his punishment at ten years' confinement and a $10,000 fine on each count. See Tex. Transp. Code Ann. § 550.021 (West Supp. 2017). The trial court sentenced Egloff in accordance with the jury's recommendation and ordered the sentences to run concurrently. In two issues, Egloff argues that the State's jury argument during punishment was extreme and manifestly improper and that he received ineffective assistance of counsel. We will affirm.
II. BRIEF BACKGROUND
Because Egloff's two issues challenge the State's closing argument and his trial counsel's effectiveness during punishment, we set forth only a brief factual background.
A bar receipt established that on the evening of May 17, 2014, Egloff purchased eight Miller Lite beers and three Jägerbomb drinks. After leaving the bar, Egloff and a female companion went to a liquor store on U.S. highway 380. While at the liquor store at around 8 p.m. that evening, a bystander smelled alcohol on Egloff. When Egloff left the liquor store, he got into the driver's side of a black truck, backed out, and "accelerated and peeled out across 380." Egloff collided with a GMC truck driven by Conner Torbert, who had his friend Michael Vest and his cousin Philip Ormston with him. Conner's truck flipped, making a three-fourths revolution, before landing on the driver's side. Michael woke up on top of Conner, whose abdomen was pinned down by the top of the doorsill. The bystander from the liquor store arrived on the scene, climbed up the frame of the vehicle, and opened the door so that Michael could get out. Michael found Philip fifteen yards away; he had been ejected from the vehicle and was lying face down, unconscious in a puddle of his own blood. Egloff fled the scene and was found three hours later.
During the punishment trial, Conner testified that after the accident, he kept trying to open his eyes, "and there was nothing." He woke up four or five days later in the hospital and was very confused and experienced indescribable pain. Conner's injuries from the collision included a ruptured spleen, punctured lungs, internal bleeding, a cracked rib, and a strained rotator cuff. Conner underwent two surgeries and took almost two years to recover. Due to ongoing issues with his spleen, Conner is prohibited from playing contact sports, which he had participated in prior to the accident.
Philip's doctor testified that as a result of the collision, Philip had suffered a severe brain injury that necessitated the removal of part of his temporal lobe and part of his skull. Due to Philip's mental status, he cannot eat; he is fed via a feeding tube. Philip's doctor further testified that Philip will require twenty-four-hour care for the rest of his life. Philip's mother testified that twenty-eight-year-old Philip lives in a nursing home because she cannot care for him in her home and that he spends his days sitting in his room or in the hallway watching the other residents.
III. PROPRIETY OF THE STATE'S CLOSING ARGUMENT
In his first issue, Egloff argues that the State's closing argument was extreme and manifestly improper because the State repeatedly violated the "Golden Rule" by asking the members of the jury to put themselves in the victims' shoes.
The portions of the State's closing argument that Egloff complains of on appeal include the following:
And I want you, when you go back there, to put yourself on 380 the night of May 17th of 2014, when Michael and Conner go to pick up Philip . . . .
And I want you to put yourselves there, as those people are running up trying to do anything that they can to help. . . . I want you to put yourself in that vehicle when Michael wakes up and he is trying to get out of that car, . . . .
I want you to put yourself on the side of the road as Conner's laying there unconscious underneath that pickup truck. Then I want you to put yourself as that man (indicating) gets out of that car and runs for three hours. . . . He goes on the run for three hours. I want you to put yourself there.
And then I want you to put yourself in the aftermath as Conner is in that hospital bed . . . .
And then I want you to put yourself in Philip's nursing home room . . . . [Emphasis added as reflected in Egloff's brief.]
Absent an objection to jury argument at trial, nothing is preserved for review. Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). The objection must be timely and specific, and the defendant must pursue the objection to an adverse ruling. Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002); Carter v. State, 614 S.W.2d 821, 823 (Tex. Crim. App. [Panel Op.] 1981); see also Tex. R. App. P. 33.1(a)(1). Even if the argument is egregious and an instruction to disregard would not have cured the harm, the complaint is forfeited if the defendant did not object. Mathis, 67 S.W.3d at 926-27; see also Threadgill, 146 S.W.3d at 667.
Here, Egloff concedes that his trial counsel never objected to the State's closing argument. Because Egloff did not object to the portions of the prosecutor's closing argument that he complains of on appeal, he failed to preserve error. See Tex. R. App. P. 33.1(a)(1); Berry v. State, No. 04-04-00010-CR, 2005 WL 1397110, at *5 (Tex. App.—San Antonio June 15, 2005, no pet.) (mem. op., not designated for publication) (holding that because appellant did not object to the prosecutor's statement asking the jury to place themselves in the shoes of the victim, appellant failed to preserve the issue for appeal).
Moreover, even assuming that Egloff preserved his complaint regarding the State's closing argument, we cannot say that the complained-of statements were improper. The complained-of statements from the prosecutor's closing argument reflect that the State was summarizing the testimony about what took place at the scene of the accident, as well as the testimony that was presented regarding the enduring nature of the injuries suffered by two of the victims, and was asking jurors to visualize that evidence. As pointed out on appeal by the State, the prosecutor did not ask jurors to put themselves into the shoes of the victims or to imagine living life with the injuries the victims suffered. Because the State's closing argument constitutes a summary of the testimony from the punishment trial, the complained-of portions of the State's closing argument did not exceed the boundaries of permissible jury argument. See Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992) (setting forth four general areas of permissible argument, including summation of the evidence), cert. denied, 510 U.S. 829 (1993); Johnson v. State, 987 S.W.2d 79, 89 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd) ("Because the State in the case before us was simply summarizing and urging the jury to imagine the evidence in their minds, the jury argument was not improper."); Linder v. State, 828 S.W.2d 290, 303 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd) (holding that prosecutor's closing argument was a summation of the evidence focused on the defendant's actions and the victim's experience as described by her in her testimony and was thus not improper).
Accordingly, we overrule Egloff's first issue.
IV. NO SHOWING OF PREJUDICE FROM DEFENSE COUNSEL'S
ALLEGEDLY DEFICIENT PERFORMANCE
In his second issue, Egloff argues that he received ineffective assistance of counsel during the punishment phase.
To establish ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that his counsel's representation was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The prejudice prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, the appellant must show there is a reasonable probability that, without the deficient performance, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308.
Here, Egloff argues that his trial counsel was deficient by failing to object to the following: the State's improper closing argument, impermissible victim-impact and victim-character evidence, and irrelevant and prejudicial testimony concerning the Special Olympics and a group home. Even assuming that Egloff's trial counsel was deficient, Egloff fails to direct us to any evidence showing that there is a reasonable probability that, but for his trial counsel's alleged deficient performance, the result of his punishment trial would have been different. And in light of the horrific nature of the accident, we cannot say that there is a reasonable probability that the result of Egloff's punishment trial would have been different but for trial counsel's allegedly deficient performance. Thus, Egloff has failed to establish the prejudice prong of the two-part Strickland test. See Hernandez, 988 S.W.2d at 772 (concluding that "a defendant should be required to show prejudice from this deficient attorney performance"); Garcia v. State, No. 13-98-00144-CR, 1999 WL 33757537, at *3 (Tex. App.—Corpus Christi Dec. 30, 1999, no pet.) (not designated for publication) ("Even if we assume, for the sake of argument, appellant successfully demonstrated counsel's deficient performance, appellant has failed to establish a reasonable probability that, but for counsel's error, the punishment assessed would have been different."); Guilder v. State, 794 S.W.2d 765, 768-69 (Tex. App.—Dallas 1990, no pet.) (concluding that appellant failed to show that any deficient performance of counsel prejudiced the defense because appellant's brief was silent on evidence that would establish the prejudice prong of the two-part Strickland test). We overrule Egloff's second issue.
V. CONCLUSION
Having overruled Egloff's two issues, we affirm the trial court's judgment.
PER CURIAM DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: November 16, 2017