Foulds v. State

Full title: WILLIAM DALE FOULDS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Mar 31, 2004

No. 10-02-00303-CR (Tex. App. Mar. 31, 2004)

Opinion

No. 10-02-00303-CR.

Opinion delivered and filed March 31, 2004. DO NOT PUBLISH.

From the 54th District Court McLennan County, Texas, Trial Court # 2002182-C. Affirmed.

Stan Schwieger, Law Office of Stan Schwieger, Waco, TX, for appellant/respondent. John W. Segrest, McLennan County District Attorney, Waco, TX, for appellee/respondent.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA¹

1 This case was submitted with former Chief Justice Davis on the panel, but he resigned effective August 4, 2003. Justice Reyna, who took the oath of office on January 5, 2004, participated in the decision of the Court.

MEMORANDUM OPINION

FELIPE REYNA, Justice.

William Foulds was convicted for failing to register as a sex offender. Foulds's only issue complains that the trial court erred in overruling his motion for mistrial in response to the State's improper jury argument. We affirm.

IMPROPER JURY ARGUMENT

Foulds complains that in the following closing argument during the punishment phase of the trial, the State struck at the defendant over the shoulders of the defense counsel:

Prosecution: He is every parent's — you need to send a message by your verdict. You send it to every defense attorney and every sex offender in the State of Texas —

Defense Counsel: I object to that, Your Honor.

Prosecution: The Defense attorneys know —

The Court: Sustain the objection of the defense attorney, and instruct the jury to disregard the last argument for any purpose.

Defense Counsel: I am going to move for a mistrial, Judge. She's attacking me, personally.

The Court: Overrule the motion for mistrial. Instruct the jury they will not consider the last statement of counsel for any purpose.

Prosecution: Send a message to everyone in the State of Texas, including sex offenders and whoever might represent them to let their clients know that when they get out of jail —

Defense Counsel: Judge, I am sorry. I object again.

The Court: Sustain the objection. Instruct the jury they will not consider the last statement of counsel for any purpose.

Defense Counsel: That's grossly improper, Your Honor. I would move for a mistrial.

The Court: Overrule the motion. Again instruct the jury not to consider the last statement of counsel for any purpose.

There are four areas of proper jury argument: (1) a summation of the evidence presented at trial, (2) a reasonable deduction drawn from that evidence, (3) an answer to the opposing counsel's argument, or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). Even if an argument exceeds the scope of permissible areas, unless the argument is manifestly improper, violative of a mandatory statute, or injects new and harmful facts into the case, there is no error. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). The State argues that the argument is not improper, but a response to defense counsel's closing argument and a plea to law enforcement. However, when a trial court sustains an objection and instructs the jury to disregard, but denies a motion for mistrial, as here, the issue becomes whether the court erred in denying the mistrial. Harris v. State, 122 S.W.3d 871, 886-87 (Tex. App.-Fort Worth 2003, no pet.); Foster v. State, 25 S.W.3d 792, 798 (Tex. App.-Waco 2000, pet. ref'd); Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.-Fort Worth 1997, pet. ref'd). Therefore, we assume without deciding that the jury argument was improper and look only to whether the court erred in denying the mistrial. A court errs in the denial of a mistrial only if the instruction to disregard was inadequate to cure the prejudicial effect of the improper argument. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991) (citing Hernandez v. State, 819 S.W.2d 806, 820 (Tex.Crim.App. 1991)); Foster, 25 S.W.3d at 798. Only in the most blatant cases is the instruction presumptively inadequate. Moore v. State, 999 S.W.2d 385, 405 (Tex.Crim.App. 1999); Roberson v. State, 100 S.W.3d 36, 41 (Tex. App.-Waco 2002, pet. ref'd). When reviewing, courts must balance the magnitude of the probable effect of the improper argument on the jury against the effectiveness of the court's instruction. Sands v. State, 64 S.W.3d 488, 493 (Tex. App.-Texarkana 2001, no pet.). The greater the magnitude of effect, the less likely the instruction will cure the harm. Id. To help facilitate the balancing of these issues, this Court considers the following non-exclusive factors: (1) the nature of the improper argument, (2) the persistence of the prosecutor, (3) the flagrancy of the violation, (4) the particular instruction given, (5) the weight of the incriminating evidence, and (6) the harm to the accused as measured by the severity of the sentence. Roberson, 100 S.W.3d at 41; see also Sands, 64 S.W.3d at 493; Fletcher v. State, 852 S.W.2d 271, 275-76 (Tex. App.-Dallas 1993, pet. ref'd).

Nature of Improper Argument

While striking at the defendant over defense counsel's shoulders is prejudicial to the defendant, it is not a constitutional violation. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). Therefore, the prejudicial effect is not as egregious, and it is more likely that an instruction to disregard will cure the prejudicial effect. The State's comments do not accuse the defense attorney of lying, nor do they suggest there is manufactured evidence. See Gomez v. State, 704 S.W.2d 770, 772 (Tex.Crim.App. 1985) (finding improper jury argument when prosecutor stated defense counsel manufactured evidence); Anderson v. State, 525 S.W.2d 20, 22 (Tex.Crim.App. 1975) (finding improper jury argument when the State accused the defense attorneys of lying). At the most, the comments mildly imply that the defense attorney is responsible for his client failing to register as a sex offender.

Persistence and Flagrancy

After the trial court sustained the objection of the defense attorney, the State continued the same line of argument. The State attempted to thwart counsel's objection by rephrasing the argument, changing "defense attorney" to "whoever might represent sex offenders." The defense attorney objected, and the judge again sustained. Subsequently, the State changed the direction of the argument. The State was persistent, but not so flagrant that the court was required to admonish council to change the course of the argument. Roberson, 100 S.W.3d at 42 (citing Mendoza v. State, 959 S.W.2d 321, 325 (Tex. App.-Waco 1997, pet. ref'd)).

Particular Instruction Given

After each objection, the court admonished the jury to disregard the State's argument "for any purpose whatsoever." This instruction has been held to be effective. Id. In light of other instructions reviewed by courts, we find this instruction to be sufficient. Cf. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.-Corpus Christi 2003, pet. ref'd) (holding instruction "the jury is so instructed" cursory, tepid, and with limited curing effect); Veteto v. State, 8 S.W.3d 805, 811-12 (Tex. App.-Waco 2000, pet. ref'd) (holding instruction "you'll disregard" ineffective).

Weight of the Evidence and Severity of Punishment

If the improper jury argument occurs during the punishment phase of the trial, then the focus of this factor should be on the weight of the State's punishment evidence. Roberson, 100 S.W.3d at 42. However, evidence leading to the conviction of the defendant should not be ignored as that too has influence on the jury's assessment of punishment. Id. The jury assesses punishment based on the severity of the criminal act presently before them, extraneous convictions, and evidence concerning the defendant's character and reputation. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2004). Foulds was convicted of failing to register as a sex offender. He had four prior felony convictions and six misdemeanor convictions, one of which was indecency with a child. Most critical was the evidence that he had previously been convicted of failing to register as a sex offender. The jury's range of punishment was from twenty-five to ninety-nine years to life. They sentenced Foulds to ninety-nine years, virtually the maximum available.

CONCLUSION

While acknowledging the severity of the punishment, we cannot say that the prejudicial effect of the improper jury argument contributed to the jury's assessment of sentence despite the court's instruction. Wesbrook, 29 S.W.3d at 115-16. Given the mild nature of the argument, the prompt jury instruction, and the multiple convictions of the defendant, we find that the improper jury argument did not inflame the minds of the jurors so that the court's instruction was rendered ineffective. The court's instruction was effective enough to cure any prejudicial effect. Id.; Foster, 25 S.W.3d at 798. We overrule Foulds's sole issue and affirm the judgment.