No. 05-09-00108-CR
Delivered: January 20, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F07-20777-HI.
Before Justices BRIDGES, LANG, and LANG-MIERS.
Opinion By Justice BRIDGES.
Appellant Crystal Domonique Robinson appeals her conviction for the offense of aggravated assault with a deadly weapon and accompanying sentence. We affirm.
Background
Appellant and complainant's sister had a physical altercation in an apartment and the complainant jumped between the women to stop the fight. Complainant pushed appellant to the ground. Several weeks later, complainant saw appellant in the same apartment complex. After a brief encounter, complainant went into a friends apartment and later walked to a nearby convenience store. The trial court admitted surveillance video taken at the convenience store, which was played for the jury. According to an officer that testified at trial, the video depicts appellant walking across the street to get behind complainant and his companion who appeared to be coming from the direction of the apartment complex. Appellant shot complainant in the back and complainant fell to the ground. After shooting complainant, appellant put the gun in her purse and ran away. Complainant survived the shooting. Appellant pleaded guilty to aggravated assault with a deadly weapon. On January 23, 2009, a jury set punishment at ten years' confinement and assessed a $5,000 fine. This appeal ensued. Analysis
Appellant raises two issues on appeal. First, appellant complains that her plea of guilty was not knowing and voluntary because she entered such a plea while believing that the jury would grant her probation. Second, appellant argues the trial court erred in overruling her objection to the prosecutor's jury argument, commenting on her failure to testify, in violation of her constitutional and statutory rights. With respect to the first issue, a plea of guilty should not be accepted unless it appears that the plea is free and voluntary. Holland v. State, 761 S.W.2d 307, 320 (Tex. Crim. App. 1988). A finding that a defendant was duly admonished creates a prima facie showing that a guilty plea was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). Even with a prima facie showing, a defendant may still raise the claim that her plea was not voluntary. However, the burden shifts to the defendant to demonstrate that she did not fully understand the consequences of her plea such that she suffered harm. Id. In considering the voluntariness of the plea, we must consider the record as a whole. Id. (citing Williams v. State, 522 S.W.2d 483, 4875 (Tex. Crim. App. 1975)). The record reflects, and appellant acknowledges, that the trial court duly admonished her. Therefore, we have a prima facie showing that her guilty plea was entered knowingly and voluntarily. See Martinez, 981 S.W.2d at 197. Still, appellant contends she did not fully understand the consequences of her plea and, thereby, suffered harm. Specifically, she contends that she believed she had to plead guilty in order to obtain probation and that "the entire defense concentrated on obtaining probation for Appellant." However, the fact that appellant may have desired such an outcome does not render her guilty plea involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.) ("A plea is not rendered involuntary simply because a defendant received a greater punishment than he anticipated.") Thus, appellant has failed to refute the prima facie showing that her guilty plea was entered knowingly and voluntarily. See Martinez, 981 S.W.2d at 197. We overrule her first issue. In her second issue, appellant contends the trial court erred in overruling appellant's objection to the prosecutor's jury argument, commenting on appellant's failure to testify, in violation of her constitutional and statutory rights. See U.S. CONST. amends. V and XIV; TEX. CONST. art. I, §§ 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2008) (a defendant need not testify and her failure to testify shall not be alluded to or commented on by counsel). The prohibition against a direct comment on the accused's failure to testify is mandatory. Tovar v. State, 777 S.W.2d 481, 489 (Tex. App.-Corpus Christi 1989, pet. ref'd). To violate the right against self-incrimination, the offending language must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear. Bustamante v. State 48 S.W.3d 761, 765 (Tex. Crim. App. 2001); Swallow v. State 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). The test is whether 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. Bustamante, 48 S.W.3d at 765; Lipscomb v. State, 467 S.W.2d 417, 420-21 (Tex. Crim. App. 1971). In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character. Cruz v. State, 225 S.W.3d 546, 549 (Tex. Crim. App. 2007); Bustamante, 48 S.W.3d at 765. If the remark complained of called the jury's attention to the absence of evidence that only the testimony from appellant could supply, the conviction is subject to reversal. Garret v. State, 632 S.W.2d 350, 353 (Tex. Crim. App. 1982) ; Johnson v. State, 611 S.W.2d 649, 650 (Tex. Crim. App. 1981) (citing Myers v. State, 573 S.W.2d 19 (Tex. Crim. App. 1978)). During the argument in question, the prosecutor stated, "You really think she should get probation when all this evidence is stacked up on her and that she caused the [complainant's] family so much pain and so much heartache and basically has shown no remorse for it?" (emphasis added). The State concedes, and we agree, that the prosecutor's comment was an improper comment on appellant's failure to testify, and we strongly urge the State to refrain from making such improper comments. See Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992); Thomas v. State, 638 S.W.2d 481, 484 (Tex. Crim. App. 1982); Cacy v. State, 901 S.W.2d 691, 704 (Tex. App.-El Paso 1995, pet. ref'd) (When no testimony exists concerning the defendant's lack of remorse, a comment on her lack of remorse would naturally and necessarily be one on the defendant's failure to testify because only she can testify as to her own remorse.) As noted above, the prohibition against a direct comment on the accused's failure to testify is mandatory. Tovar, 777 S.W.2d at 489. Still, the Court of Criminal Appeals has held that the prohibition against commenting on a defendant's silence is subject to a harm analysis. Madden v. State, 799 S.W.2d 683, 700 (Tex. Crim. App. 1990). The error which arose during the State's closing argument was an error in the trial process itself. Crocker v. State, 248 S.W.3d 299, 306 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). Thus, a Rule 44.2(a) analysis is required, and we apply the standard of review for constitutional errors as set forth in Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989). See Crocker, 248 S.W.3d at 306 (discussing and applying the Harris factors). In applying the harmless error rules, a reviewing court should not focus on the propriety of the outcome at trial. Id.; see also Harris, 790 S.W.2d at 587. "Instead, an appellate court should be concerned with the integrity of the process leading to the conviction." Id. The court should examine (1) the source of the error, (2) the nature of the error, (3) whether or to what extent it was emphasized by the State, (4) its probable collateral implications, (5) the weight a juror would probably place upon the error, and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. See id. In summary, the reviewing court should ask "whether the error at issue might possibly have prejudiced the jurors' decision-making; it should ask not whether the jury reached the correct result, but rather whether the jurors were able properly to apply law to facts in order to reach a verdict." Id. As discussed more fully below, our consideration of the Harris factors leads us to conclude the error was harmless. With regard to the first Harris factor, we note that the State was the source of the error here. See Harris, 790 S.W.2d at 587; Crocker, 248 S.W.3d at 306. Under the second and third factors, we conclude the comment was brief and was not emphasized by the State. Id. Under the fourth and fifth factors of the Harris test, we note that the jury charge correctly explained the law respecting a defendant's election not to testify. See Harris, 790 S.W.2d at 587; Crocker, 248 S.W.3d at 307. See also Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) ("We generally presume the jury follows the trial court's instructions in the manner presented.") With regard to the fifth factor, we conclude the State will not be encouraged to repeat such a mistake, especially in light of our admonishment, if we declared the error harmless. See Harris, 790 S.W.2d at 587; Crocker, 248 S.W.3d at 307. Still, appellant contends that "the jury manifestly heeded and placed great weight on the argument, in light of the ten-year confinement and $5,000 fine, rather than probation, they assessed in this case." We disagree. At the punishment hearing, the jury watched appellant shoot complainant in the back on the surveillance video from the convenience store. Further, the jury heard testimony from complainant regarding his injuries as a result of the shooting. The jury also heard evidence appellant had previously been on probation and failed to abide by the terms and conditions of that probation. Appellant's probation officer testified that appellant is a "risk" because of her past, her lies, and the fact that she admitted that she has anger issues and physically lashes out at people when she is depressed. Finally, after appellant's counsel objected to the prosecutor's comment, the trial court de-emphasized the comment by stating, "The jury will remember the testimony." Thus, after due consideration of each of the Harris factors and the totality of the circumstances, we conclude the error did not contribute to appellant's conviction or punishment. Tex. R. App. P. 44.2 (a). Accordingly, we conclude the State's comment on appellant's failure to testify was harmless and we overrule appellant's second issue. Having overruled appellant's two issues, we affirm the judgment of the trial court.