Opinion
No. 05-05-01485-CR
Opinion issued June 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from County Criminal Court No. 3, Dallas County, Texas, Trial Court Cause No. MB04-35668-C. Affirmed.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT.
OPINION
Tylon Rene Starr appeals her conviction for driving while intoxicated. The trial court assessed punishment at 150 days of confinement in the Dallas County Jail and a $750 fine. In two issues, she argues the jury charge contained an improper instruction on reasonable doubt and the trial court erred in overruling her objection to the prosecutor's jury argument. We affirm the trial court's judgment.
The trial court probated the confinement portion of the sentence and placed appellant on community supervision for eighteen months.
Background
On May 2, 2004, at approximately 3:00 a.m., Officer Willie Kiernat of the Irving Police Department received a dispatch that a witness was following a possibly intoxicated person who was driving a truck. With information he received in subsequent dispatches, Kiernat found the vehicle, driven by appellant, stopped at a flashing red light at the north service road of Highway 114 and Rochelle, where appellant's truck was partially blocking the intersection. After a backup officer arrived, Kiernat approached appellant's truck and noticed she was asleep at the steering wheel. The truck was still running and appellant's foot was on the brake. Kiernat opened the door and turned off the ignition. When he woke appellant and asked her to step out of the truck, she restarted the vehicle and tried to drive away. Kiernat jumped into the truck and again turned off the ignition. When appellant got out of the truck, Kiernat noticed she had bloodshot eyes, unsteady balance, and alcohol on her breath. He administered three field sobriety tests, each of which indicated that appellant was intoxicated. Appellant told Kiernat she had been drinking in the Greenville Avenue area of Dallas and consumed a couple of drinks. He placed her under arrest for driving while intoxicated. Erik Kurt Johnsen, appellant's friend and yoga instructor, testified on her behalf that during the week of her arrest, appellant had been assisting him in the construction of his new yoga studio. They had been working every night into the early morning hours and were very tired. The celebration party for the opening of the new studio was the evening of May 1, but Johnsen did not go to Greenville Avenue and drink with appellant.Discussion
In her first issue, appellant argues the trial court erred by including a definition of reasonable doubt in the jury charge. Specifically, appellant complains of the following language: "It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all `reasonable doubt' concerning the defendant's guilt." Appellant argues that this language provides a definition of reasonable doubt, thus violating Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). We disagree. This Court has concluded the quoted language does not define reasonable doubt. See O'Canas v. State, 140 S.W.3d 695, 701-02 (Tex.App.-Dallas 2003, pet. ref'd); see also Bates v. State, 164 S.W.3d 928, 931 (Tex.App.-Dallas 2005, no pet.); Bratton v. State, 156 S.W.3d 689, 695-96 (Tex.App.-Dallas 2005, pet. ref'd). Having rejected the argument made by appellant, we resolve her first issue against her. In her second issue, appellant argues the trial court erred in overruling her objection to the following closing argument by the prosecutor: "This is a driving while intoxicated case, okay, it's that simple. Defense attorney cross-examined the officer and there was a lot of smoke up in here." Defense counsel immediately objected to the prosecutor's argument on the grounds of striking at appellant over the shoulders of counsel. The trial court overruled the objection. Appellant contends the State's argument improperly attacked her through her attorney. We disagree. Proper jury argument generally must encompass one of the following areas: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from the evidence; (3) an answer to the opposing counsel's argument; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999); Magana v. State, 177 S.W.3d 670, 674 (Tex.App.-Houston [1st Dist.] 2005, no pet.). To determine whether a party's argument properly falls within one of these categories, we must consider the argument in light of the record. Magana, 177 S.W.3d at 674. The State may not use closing argument to strike at a defendant over the shoulders of her counsel or accuse counsel of bad faith. Magana, 177 S.W.3d at 674; see also Fuentes v. State, 664 S.W.2d 333, 335 (Tex.Crim.App. 1984). A prosecutor runs the risk of improperly striking at a defendant over the shoulders of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel's character. Fuentes, 664 S.W.2d at 335; Magana, 177 S.W.3d at 675. It is, however, proper for a prosecutor to attack the defense's argument rather than defense counsel. Magana, 177 S.W.3d at 675. As viewed in light of the evidence, the prosecutor's argument was merely an attempt to challenge appellant's defensive theory that Kiernat's testimony was unreliable. After defense counsel's objection was overruled, the prosecutor went on to argue to the jury that the job of a defense attorney is to discredit the State's case:That is his job, okay? That is his job. Just as ours, as a prosecutor, we take an oath to do justice, it is his job to poke those holes. You see what I'm getting at?The prosecutor's argument was directed at appellant's defensive theory and not at defense counsel. Therefore, the trial court did not err in overruling appellant's objection to the prosecutor's argument. We overrule appellant's second issue. We affirm the trial court's judgment.