Opinion
No. 05-14-01146-CR
03-21-2016
JOSEPH WAYNE HUNTER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F13-56295-R
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Myers
A jury convicted appellant Joseph Wayne Hunter of aggravated assault committed with a deadly weapon and causing serious bodily injury, enhanced by family violence, and assessed punishment at twenty-five years in prison. In four issues, appellant contends the trial court erred by refusing to allow appellant to impeach a witness by showing the witness had recently been arrested for the offense of assault, and that the prosecutor impermissibly commented on appellant's failure to testify during closing arguments, in violation of the Fifth and Fourteenth Amendments of the U.S. Constitution, Article I, section 10 of the Texas Constitution, and article 38.08 of the Texas Code of Criminal Procedure. We affirm.
DISCUSSION
I. Impeachment of Lashawn Rose
In his first issue, appellant argues the trial court erred by refusing to allow him to impeach a State's witness by showing that she had recently been arrested for the offense of assault. Appellant alleges that State's witness Lashawn Rose made a blanket statement about her lack of trouble with the law after serving time on a prior case, and that, as a result, appellant should have been allowed to impeach Rose with evidence of the prior arrest.
Toward the end of the State's direct examination of Rose, the prosecutor began to address her criminal history. The relevant portion of the record reads as follows:
Q. [PROSECUTOR:] Okay. Now I'm going to ask you a couple of other questions, Ms. Rose. At the end of the day, is it fair to say that you've had your own issues with the law?
A. Yes, ma' am.
Q. Okay. And in fact you have been charged with a theft offense; is that correct?
A. Yes, ma'am.
Q. And at some point were you placed on probation for that?
A. Yes, ma'am.
Q. And then at some later point were you revoked on that probation?
A. Yes, ma'am.
Q. Okay. And did you plead guilty and accept responsibility for that offense?
A. Yes, ma'am.
Q. And you took responsibility.
A. Yes, ma'am.
Q. And at some point you weren't able to successfully complete your probation; is that correct?
A. Yes, ma'am.
Q. And you took responsibility for that?
A. Yes, and did my time for that.
Q. And you did your time for that.
A. Uh-huh.
Q. And since that time have you had any troubles with the law?Defense counsel and the State briefly approached the bench before the defense's cross-examination of Rose, and had an off-the-record discussion. Later, after Rose was cross-examined and dismissed, subject to recall, defense counsel made the following objection:
A. No.
Q. Have you had anymore, you know, have you had to do anymore time or anything like that?
A. Yeah, for like just overnight, something like that. Not no major time, nothing like that.
Q. And despite that offense, you did take responsibility for it, didn't you?
A. Yes.
Q. Okay. And coming in here today, are you telling this jury the truth about what happened in May?
A. Yes.
Q. And do you have any reason--do you have any vendetta against Joseph Hunter?
A. No.
Q. Do you want to see him get in trouble for something he didn't do?
A. No.
Q. You understand what it's like to have to take responsibility for committing a crime.
A. Yes.
Q. And you understand that that's very serious.
A. Yes.
Q. And so are you telling this jury based on your own personal experience and criminal history--
A. Yes.
Q. --the truth about what happened to Tameka?
A. Yes.
[DEFENSE COUNSEL]: Judge, during the last witness, who was Lashawn Rose, during direct examination she was speaking with the prosecutor and they had--the record will speak for itself, but they had spoken of her last confinement. She had essentially stated that she had not been in trouble since then. I have notice that she was arrested for assault causing bodily injury on October 31st, 2013. I believe that the statement she made to the jury creates a misrepresentation of--for her behavior over the last year and a half. I respectfully ask that I be allowed to impeach her with that in front of the jury.
THE COURT: All right, let the record reflect we had a sub rosa hearing during her testimony, I overruled his objection at that time and I told the counsel he could put it on the record after her testimony, and I stand by my ruling.
The October 31, 2013, arrest for assault causing bodily injury was disclosed in the "State's Notice of Witnesses['] Criminal Histories," file-marked August 4, 2014.
A defendant may cross-examine a witness on any subject "reasonably calculated to expose a motive, bias or interest for the witness to testify." Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). But the right of confrontation is not absolute. It guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent the defense might wish. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A trial court has discretion regarding the extent of cross-examination of a witness for the showing of bias or as to credibility, and its decision is not subject to reversal absent an abuse of that discretion. Cantu v. State, 939 S.W.2d 627, 635 (Tex. Crim. App. 1997); Ho v. State, 171 S.W.3d 295, 304 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).
As a general rule, specific acts of misconduct may not be introduced to impeach a party or a witness. See Prescott v. State, 744 S.W.2d 128, 130 (Tex. Crim. App. 1988); TEX. R. EVID. 609(a); see also TEX. R. EVID. 608(b). An exception exists when a witness makes statements during direct examination concerning his past conduct that suggest he has never been arrested, charged, or convicted of any offense. Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993), overruled on other grounds by Ex parte Moreno, 245 S.W.3d 419, 425 (Tex. Crim. App. 2008); Prescott, 744 S.W.2d at 131; Caldwell v. State, 356 S.W.3d 42, 50 (Tex. App.— Texarkana 2011, no pet.). When the witness "creates a false impression of law abiding behavior, 'he opens the door' on his otherwise irrelevant past criminal history and opposing counsel may expose the falsehood." Delk, 855 S.W.2d at 704; see Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007) (reiterating that when witness, on direct examination, makes blanket assertion of fact and thereby leaves false impression with respect to prior criminal behavior or extent of prior troubles with the law, witness "opens the door" to otherwise irrelevant past criminal history and opposing counsel may impeach him by exposing falsehood). This exception is not limited to final convictions. See Prescott, 744 S.W.2d at 130-31 (exception to general rule arises when witness leaves false impression as to extent of either his prior (1) arrests, (2) convictions, (3) charges, or (4) "trouble" with the police); Hall v. State, 161 S.W.3d 142, 156 (Tex. App.—Texarkana 2005, pet. ref'd) (citing Prescott, 744 S.W.3d at 130-31).
In the present case, Rose initially stated she had not been in trouble with the law since serving time for her theft conviction. The prosecutor, however, clarified Rose's response by asking her, "Have you had anymore, you know, have you had to do anymore time or anything like that?" Rose answered, "Yeah, for like just overnight, something like that. Not no major time, nothing like that." The prosecutor then asked, "And despite that offense, you did take responsibility for it, didn't you?" Rose responded, "Yes." Appellant acknowledges there was an "oblique reference to additional trouble with the law" when Rose stated, "Yeah, for like just overnight, something like that," but that it was "too vague to dispel the falsehood presented by her earlier statement that she had not been in trouble with the law since the time served on the theft conviction." Nonetheless, we note that courts construe the false impression exception narrowly. See James v. State, 102 S.W.3d 162, 181 (Tex. App.—Fort Worth 2003, pet. ref'd). "In order to open the door to use of prior crimes for impeachment, the witness must do more than simply imply that he abides by the law; he must in some way convey the impression that he has never committed a crime." Id. Rose's statement, "Yeah, for like just overnight, something like that. Not no major time, nothing like that," admits that she had been in trouble with the law after serving time for her theft conviction. She did not create an impression that she had no further trouble with the law. Therefore, contrary to appellant's argument, the trial court did not abuse its discretion by denying appellant's request to impeach Rose with evidence of her October 31, 2013 arrest. We overrule appellant's first issue.
II. State's Closing Argument
In his second, third, and fourth issues, appellant contends the prosecutor impermissibly commented during closing arguments on appellant's failure to testify, thereby violating the Fifth and Fourteenth Amendments of the U.S. Constitution (issue two), Article I, section 10 of the Texas Constitution (issue three), and article 38.08 of the Texas Code of Criminal Procedure (issue four). The State argues that appellant preserved only his Fifth Amendment complaint. We agree.
During closing arguments in the punishment phase of the trial, the prosecutor began the rebuttal portion of her argument by stating:
May it please the Court, counsel.
What a day it is when you can come into a court of law and you can say to 12 citizens that live in your community, I know that I shot somebody at point blank range and almost killed them, I know I did that. Oh but, I'm an alcoholic so put me on probation. What a day in Dallas County.
[DEFENSE COUNSEL]: Judge, I'm going to have to object to that, Judge. That is a comment on the Fifth Amendment. [Appellant] did not say that, he did not say anything, he did not testify.
THE COURT: Overrule the objection.
[DEFENSE COUNSEL]: I'm—thank you, Your Honor.
THE COURT: Is it based on the Fifth Amendment?
[DEFENSE COUNSEL]: It is based on the Fifth Amendment, Your Honor.
THE COURT: Overrule that objection.
To preserve a complaint for appellate review, a defendant must make a timely and specific objection to the trial court. TEX. R. APP. P. 33.1(a); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009). In making the objection, terms of legal art are not required, but a litigant should at least "let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). An objection stating one legal basis may not be used to support a different legal theory on appeal. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (objection based on Fifth Amendment did not preserve state constitutional ground); Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996) (objection at trial regarding illegal arrest did not preserve claim of illegal search and seizure on appeal); Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996) (variance in charge objection with contention on appeal waived error). "The purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial judge of the basis of the objection and give him the opportunity to rule on it; (2) to give opposing counsel the opportunity to respond to the complaint." Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). Therefore, appellant's arguments on appeal regarding the Fourteenth Amendment, Article I, section 10 of the Texas Constitution, and article 38.08 of the Texas Code of Criminal Procedure do not comport with and are not preserved by the Fifth Amendment objection at trial. See Heidelberg, 144 S.W.3d at 537.
As for appellant's Fifth Amendment complaint, we review a trial court's ruling on an objection to improper jury argument for abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). Proper jury argument generally falls within one of four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to opposing counsel's argument, and (4) plea for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). A prosecutor's comment on a defendant's failure to testify violates the accused's Fifth Amendment constitutional privilege against self-incrimination. See U. S. CONST. amend. V; Griffin v. California, 380 U.S. 609, 612-15 (1965); Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001).
A violation of a defendant's constitutional privilege against self-incrimination occurs when "the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007). "What determines the impermissibility of a reference to the defendant's failure to testify is not the use of 'I' or 'he' or 'she' or any other word, but rather the entirety of the prosecutor's statements, taken in the context in which the words were used and heard by the jury." Id. at 549; see also Bustamante, 48 S.W.3d at 765. It is not sufficient that the comment might be construed as an implied or indirect allusion to a defendant's failure to testify. Bustamante, 48 S.W.3d at 765. We view the challenged argument from the jury's standpoint and resolve any ambiguities in the language in favor of it being a permissible argument. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011). It cannot be said that the prosecutor manifestly intended to comment on the defendant's failure to testify if some other explanation for the remark is equally plausible. Id.
The defense's strategy during the punishment phase was to convince the jury to place appellant on probation so he could receive treatment for alcoholism. Eartha Wright, appellant's mother, testified that although appellant had never sought alcohol treatment on his own, he had issues with alcohol since high school. Additionally, although she was aware appellant received treatment for depression, she was not aware that he received any treatment for his alcoholism while he was in jail. Samuel Holmes, appellant's uncle, likewise testified that he was aware of appellant's drinking problem. Before asking Holmes to "[t]ell the jury a little bit about the drinking issue," defense counsel stated, "I want you, because really we're not trying to hide, we want this jury to understand that's going on." Holmes testified that appellant's father was an alcoholic and that appellant was "a very easy going nice young man," but when he drinks "he's a different person, and we as a family have noticed that." Appellant did not testify at either the punishment or guilt/innocence phases of the trial.
During his closing argument, defense counsel addressed the jury as follows:
Now a few things. I said you can--you cannot believe--you cannot have it both ways with an alcohol problem and being a good guy. That's just not true. Lots of good people have alcohol problems. Okay? If you look at the way we evolve, or especially if you're in the criminal justice system the way we perceive and deal with alcoholism, it is a disease, it is not just a conscious choice. To always lay at the foundation of a person with a drinking problem a moral blame is simply wrong and it is reprehensible.Defense counsel argued that if appellant was placed on probation, the court could, and perhaps would, send appellant to a Substance Abuse Felony Punishment Facility (SAFPF) if the jury requested it:
Good people can drink. people who drink can be responsible at times and then when they drink they can be wildly irresponsible as we see in this case. But for them to say that because he drinks he is just a throwaway, that is disgusting. Okay? And I know you guys aren't —you're not going to buy into that.
Now you can on a verdict form, I would suggest on that verdict line, if you do see it fit to place him on probation, write on the bottom of it, it's the Court's decision, say, we expect him to go to the SAFPF alcohol treatment facility. Write that on the bottom of the verdict form if that's what you want, because you have that right as a jury.Counsel argued that appellant "would be a very good candidate for probation," that probation would be a "lot of work" and "a difficult thing to do," but it was appropriate for appellant and society. He also pointed out that, because appellant had chosen to exercise his Fifth Amendment right not to testify, the jury should consider the testimony of witnesses who spoke on appellant's behalf.
Appellant acknowledges on appeal that "an argument regarding an accused's possible motive for committing a crime is not improper if it is evident that the argument refers to evidence other than the accused's testimony," see Ex parte Jackson, No. 2-05-334-CR, 2006 WL 909430, at *4 (Tex. App.—Ft. Worth April 6, 2006, no pet.) (mem. op., not designated for publication), but he contends that the prosecutor's rebuttal argument, couched in the first person, "was clearly a reference to the thought processes of the [a]ppellant alone," and that such an argument was intended to bring to the jury's attention the fact that appellant did not testify on his own behalf.
Viewed from the jury's perspective, however, the prosecutor's rebuttal argument does not at all clearly or directly refer to appellant's failure to testify. And even if the argument could be considered an implied or indirect allusion to appellant's failure to testify, such an indirect reference does not amount to an impermissible comment on appellant's right not to testify. See Bustamante, 48 S.W.3d at 765. Indeed, when viewed in context, the prosecutor's argument could be seen as merely an attempt by the State to summarize the defense's punishment evidence and respond to opposing counsel's argument, both of which are well within the permissible areas of jury argument. See Freeman, 340 S.W.3d at 727. We conclude the trial court did not abuse its discretion by overruling appellant's objection, and we overrule appellant's second issue.
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not publish
TEX. R. APP. P. 47
141146F.U05
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F13-56295-R.
Opinion delivered by Justice Myers. Justices Fillmore and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 21st day of March, 2016.