Opinion
No. 05-10-00467-CR
08-03-2011
KENNY WIGGINS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F09-54476-J
OPINION
Before Justices Richter, Lang, and Fillmore
Opinion By Justice Fillmore
A jury found appellant Kenny Wiggins guilty of robbery. Wiggins' pleaded true to two enhancement paragraphs in the indictment, and the jury assessed punishment of ninety-nine years' imprisonment and a fine of $7500. In two issues, Wiggins contends the trial court erred by overruling his objections during the punishment phase of the trial that the State's jury arguments improperly commented on his failure to testify. We modify the trial court's judgment and affirm the judgment as modified. Background
Wiggins has not challenged the sufficiency of the evidence to support his conviction. Accordingly, we recite only those facts necessary to provide context for Wiggins's points of error on appeal.
On April 28, 2009, complainant Harry Baker was walking his small dog in the courtyard at apartment complex where he resided. Wiggins approached Baker from behind, reached around Baker, shoved his hands into Baker's pockets, and demanded Baker give him money. Baker told Wiggins he did not have any money with him. Wiggins then struck Baker in the shoulder and neck, kicked Baker's dog, and fled.
Wiggins was prohibited from being on the apartment complex property on April 28, 2009 by a criminal trespass warning he received on April 7, 2009. The trespass warning was delivered by apartment manager Linda Hill in the presence of Officer S. Barney and the warning indicated that if Wiggins returned to the property, he could be charged with the offense of criminal trespass. Hill saw Wiggins at the apartment complex on the day of the incident. When seen by Hill, Wiggins ran. Shortly after seeing Wiggins, Hill learned about an altercation between Baker and Wiggins.
After his encounter with Wiggins, Baker went to his apartment and called the police. Prior to the incident, Baker had seen Wiggins on the apartment complex property and Wiggins had asked Baker for money. A few days after the incident, Baker identified Wiggins as the perpetrator in a photograph lineup. Wiggins was arrested and charged with robbery.
At trial, Baker and Hill identified Wiggins. Wiggins did not testify in the guilt/innocence phase of the trial. The jury found Wiggins guilty of robbery.
Wiggins pleaded true to two felony enhancement paragraphs in the indictment. Wiggins signed a stipulation of evidence indicating that if called as a witness for the State, Deputy Hamb of the Dallas County Sheriff's Department would testify that Wiggins was "the same individual who was arrested for, and charged with" fourteen prior offenses. In the stipulation, Wiggins waived the right to confront and cross-examine Deputy Hamb and agreed that the witness's testimony could be read into the record. The stipulation was admitted in evidence at the punishment phase of the trial. Without objection, the State then introduced evidence of the fourteen prior convictions:
* August 16, 1985, two burglaries of buildings and robbery, sentence of eleven years' confinement;
* October 21, 1994, possession of a controlled substance, sentence of two years' confinement and five years' probation, with probation revoked on January 22, 1999;
* July 22, 2003, possession of a dangerous drug, sentence of ninety days' confinement;
* January 30, 2004, theft of property, sentence of thirty days' confinement;
* July 1, 2004, possession of a controlled substance, sentence of two years' confinement and fine of $1500;
* August 23, 2006, prostitution, sentence of sixty days' confinement;
* September 29, 2006, prostitution, sentence of sixty days' confinement;
* February 12, 2007, possession of a controlled substance, sentence of ninety days' confinement;
* March 23, 2007, possession of controlled substance, sentence of one hundred eighty days' confinement;
* April 3, 2008, robbery, sentence of four years' confinement, four years' probation, and fine of $1000;
* May 15, 2008, possession of controlled substance, sentence of two years' confinement, two years' probation, and fine of $500; and
*
April 24, 2009, prostitution, sentence of twenty-four days' confinement.
Markisha Sims, a detention officer with the Dallas County Sheriff's Department, testified at the punishment phase of the trial. Sims identified Wiggins as the inmate she saw assaulting another inmate on July 23, 2009. Wiggins received fifteen days' restriction for that assault, with confinement in a single cell and no television, phone, or commissary privileges.
John Priolo, a community supervision officer employed by the Community Supervision and Corrections Department, testified that Wiggins was placed on four years' probation for the April 2008 robbery conviction and on two years' probation for the May 2008 possession of a controlled substance conviction. Priolo testified that Wiggins was homeless and a heavy drug user. Wiggins was placed in the Judicial Treatment Center, an in-patient six-month drug treatment program. Wiggins did fairly well at the Judicial Treatment Center. He volunteered for over three hundred hours of community service, had a positive attitude, and took his medication voluntarily. However, Wiggins almost immediately absconded after release from the drug treatment program. Overall, Wiggins was a fairly poor probationer, and he did not complete his probation. Wiggins was charged with a felony and a misdemeanor offense after he was released from the judicial treatment program.
Wiggins did not testify at the punishment phase of the trial. His sole witness was his Alcoholics Anonymous volunteer sponsor, Steven Nicholson. Nicholson had known Wiggins for about a year and a half and first met Wiggins when he was at the Judicial Treatment Center. Wiggins lived at a halfway house after release from the judicial treatment program, and Nicholson saw Wiggins a couple of times while he resided at the halfway house. When Wiggins no longer lived at the halfway house, Nicholson lost track of him.
Wiggins contacted Nicholson about a month after he was back in jail following his arrest in this case. Wiggins told Nicholson he was living on the streets, had relapsed into using drugs, and was committing crimes. Nicholson was aware that Wiggins robbed Baker, it was Wiggins's third offense of robbery, and Wiggins did not report to probation as he was supposed to. At the time of trial, Nicholson and Wiggins were speaking at least once a week. They talked about what was going on in Wiggins's life, how Wiggins wanted to better his life, what Wiggins had done in the past that he regretted, and how Wiggins would like to use what he had learned from his experience to help others. Following his arrest in this case, Wiggins communicated in writing with his mother in Georgia, with whom he had not communicated in years. Wiggins attended Bible study while in jail.
Nicholson did not think Wiggins knew how to survive as a contributing member of society. Nicholson thought Wiggins was "salvageable" and could become a productive citizen with proper training, although Nicholson acknowledged that Wiggins would have to take responsibility for his actions and his choices.
The jury assessed punishment of ninety-nine years' confinement and a $7500 fine. Wiggins filed this appeal.
Analysis
In two issues, Wiggins contends that at the punishment phase of the trial, the State twice improperly commented on Wiggins's failure to testify. In his first issue, Wiggins asserts the trial court erred in overruling his objection to the State's jury argument commenting on Wiggins's failure to refute his prior convictions. In his second issue, Wiggins asserts the trial court erred in overruling his objection to the State's jury argument commenting on Wiggins's failure to offer evidence supporting a lesser sentence. Wiggins asserts the comments of the State violated his federal and state constitutional privileges against self-incrimination.
During closing argument at the punishment phase of trial, the State argued for imposition of a lengthy sentence and stated:
We ask you to start at the top of this sentence and if you can think of any redeeming qualities for this man, come off a little time. But I submit to you that you have not heard enough and that this is a man who will not be surprised when you give him a stiff sentence. He has worked very hard for it. And he sat here and wept all week when he thought it would count and get some sympathy from you. But when emotion comes into play today, it's nothing but dry eyes.Wiggins objected that "this line of statement" was "a comment on [Wiggins's] failure to take the stand and testify." The trial court overruled the objection.
Why? Because he knows he's stuck. He knows that he cannot refute this, this stack of prior convictions.
During its rebuttal, the State again argued for a lengthy sentence and stated:
Just like my co-counsel said, I'm gonna ask you to start at the top [of the punishment range]; and if you see something he was doing, six months he did good while he was in drug treatment, great, come down.Wiggins objected to the "comment on [Wiggins] not testifying." The trial court overruled the objection.
But what else have you heard? Absolutely nothing besides his whimpers. You've heard nothing else that will make you come down off of that number.
Proper subjects of jury argument are summation of the evidence, reasonable deductions from the evidence, responses to an opponent's argument, or pleas for law enforcement. Hughes v. State, 878 S.W.2d 142, 157-58 (Tex. Crim. App. 1992). A prosecutor's comment on a defendant's failure to testify violates the accused's federal and state constitutional privileges against self-incrimination. See U. S. Const. amends. V and XIV; Tex. Const. art. 1, § 10; see also Griffin v. California, 380 U.S. 609, 612-15 (1965); Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). In addition, article 38.08 of the code of criminal procedure prohibits allusion to or comment on a defendant's failure to testify:
Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.Tex. Code Crim. Proc. Ann. Art. 38.08 (West 2005). 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).
When evaluating a claim that the prosecutor's jury argument improperly commented on a defendant's failure to testify, the court must view the offending language from the jury's standpoint, and the implication that the comment referred to the accused's failure to testify must be clear. Bustamante, 48 S.W.3d at 765; Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). It is not sufficient that the language might be construed as an implied or indirect allusion to the defendant's failure to testify. Bustamante, 48 S.W.3d at 765. To determine whether a comment violates a defendant's right against self-incrimination or article 38.08, we must decide "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." Id. 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, 548 (Tex. Crim. App. 2007) (quoting Bustamante, 48 S.W.3d at 765). Language that may be construed as a reference to a failure to provide evidence other than from the defendant's testimony does not constitute a comment on the failure to testify. Swallow, 829 S.W.2d at 225. However, a statement referencing the absence of evidence that only the defendant's testimony could supply is a direct comment on the defendant's failure to testify. See Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996); Swallow, 829 S.W.2d at 225.
In this case, the prosecutor argued during the punishment phase of the trial that Wiggins was unable to refute his prior convictions and that the jury has heard "absolutely nothing besides [Wiggins's] whimpers" that would justify something less than the maximum authorized punishment. The reference to Wiggins being unable to refute his prior convictions may reasonably be construed as a summation of the evidence. Wiggins stipulated to testimony of Deputy Hamb indicating Wiggins had been arrested for, and charged with, fourteen prior offenses. Further, Wiggins did not object to the State's exhibits documenting convictions on those fourteen charged offenses. Accordingly, on this record, we conclude the State's comment on Wiggins's inability to refute his prior convictions was not improper. Conversely, the jury could have taken the prosecutor's remarks about hearing nothing besides Wiggins's "whimpers" as a direct comment on the failure of Wiggins himself to express remorse, describe rehabilitative efforts, or otherwise provide justification for punishment leniency. We do not condone and, indeed, have grave concerns about the State's reference to the jury having heard "absolutely nothing besides [Wiggins's] whimpers" justifying less than the maximum authorized punishment. We assume, without deciding, that the argument by the State was improper.
Assuming the State's argument constituted a comment on Wiggins's failure to testify, that conclusion would not necessarily require a reversal of Wiggins's punishment. The Court of Criminal Appeals has held that the prohibition against commenting on a defendant's silence is not automatically reversible error and is subject to a harm analysis. Madden v. State, 799 S.W.2d 683, 699 n.28 & 700 (Tex. Crim. App. 1990). An error during the State's closing argument at the punishment phase of trial would constitute an error in the trial process itself; thus, a constitutional harm analysis is required under appellate rule of procedure 44.2(a). Crocker v. State, 248 S.W.3d 299, 305-06 n.9 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). Rule of appellate procedure 44.2(a) provides:
If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.Tex. R. App. P. 44.2(a). Under this standard, we must reverse the punishment unless we conclude beyond a reasonable doubt that the error did not contribute to Wiggins's punishment. See Crocker, 248 S.W.3d at 305-06; Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).
In conducting our harm analysis, we apply the standard of review for constitutional error set forth in Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989). As a reviewing court, we examine (1) the source of the error, (2) the nature of the error, (3) whether or not or to what extent the error was emphasized by the State, (4) the error's 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. Id. at 587. Our harmless-error analysis should not focus on the propriety of the outcome of the trial; instead, we should calculate as much as possible the probable impact of the error on the jury. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). We should not ask "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." Harris, 790 S.W.2d at 587-88. We evaluate the entire record in a neutral, impartial, and even-handed manner, not in the light most favorable to the prosecution. Harris, 790 S.W.2d at 586; see also Montoya v. State, 744 S.W.2d 15, 38 (Tex. Crim. App. 1987) (op. on reh'g) ("It is well established that at the penalty stage of the trial, the jury may consider all of the evidence adduced at the guilt stage."), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
Turning to the first factor in the Harris analysis, we note that the State was the source of the asserted error. See Harris, 790 S.W.2d at 587. This factor weighs in favor of Wiggins's position. Next we consider the second and third Harris factors concerning the nature of the error and whether or to what extent the comment was emphasized by the State. See id. There is nothing in this record to indicate intentional misconduct or ill will on the part of the State with regard to making the complained-of comment that the jury had heard nothing but Wiggins's whimpers supporting a lesser sentence. The statement was brief, consisting of only several sentences. The second and third factors weigh in favor of the State's position.
Under the fourth Harris factor, we consider the probable collateral implications of the State's comment. Id. We disagree with Wiggins's contention that the State's comment prejudiced the jury's decision-making in assessing punishment of ninety-nine years' confinement, the upper limit of the twenty-five to ninety-nine years' confinement range under penal code section 12.42(d), and a fine of $7500. See Tex. Penal Code Ann. § 12.42(d) (West 2011); see also Archie v. State, 221 S.W.3d 695, 703 (Tex. Crim. App. 2007) (Meyers, J., concurring) (in addressing whether mistrial should have been granted based on improper jury argument, "[t]he magnitude of the comment on the failure to testify is not the same if it may have affected only the punishment as it would be if it may have affected the determination of guilt."). In addition to the evidence concerning the facts of the instant offense and Wiggins's fourteen prior convictions, including two convictions for robbery, the jury heard testimony regarding Wiggins's failure to abide by the terms and conditions of probation, failure to complete probation, and assault of a fellow inmate. The totality of the evidence established a pattern of lawlessness on the part of Wiggins, demonstrating that Wiggins repeatedly engaged in criminal conduct. In light of the strength of the State's punishment case, it is likely the same punishment would have been assessed in the absence of the State's comment. See id. at 700 (after reviewing the record, "due to the strength of the State's punishment case, it is likely that the same punishment would have been assessed" regardless of improper comment) (quoting Archie v. State, 181 S.W.3d 428, 432 (Tex. App.-Waco 2005, pet. granted)). This factor weighs in favor of the State's position.
The jury also had the option of assessing punishment of life in prison pursuant to penal code section 12.42(d). See Tex. Penal Code Ann. § 12.42(d) (West 2011).
Under the fifth Harris factor, we consider what weight a juror would probably place upon the error. Here, the jury charge correctly explained the law respecting a defendant's election not to testify. See Harris, 790 S.W.2d at 587. The charges submitted to the jury at the guilt/innocence and the punishment phases of the trial instructed the jury pursuant to article 38.08:
Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a right accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify and you are instructed that you cannot and must not infer or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.The jury charges correctly explained the law respecting a defendant's election not to testify. The jury is presumed to have followed the court's instructions. See Crocker, 248 S.W.3d at 307; Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). This factor weighs in favor of the State's position.
As discussed previously, we do not condone the State's comment about the jury having heard "absolutely nothing besides [Wiggins's] whimpers" justifying less than the maximum authorized punishment. However, with regard to the sixth Harris factor-whether declaring the error harmless would encourage the State to repeat it with impunity-we conclude the State will not be encouraged to repeat this type of argument, especially in light of our admonishment in this opinion, if we determined the error was harmless. See Harris, 790 S.W.2d at 587. This factor weighs in favor of the State's position.
Thus, after reviewing the entire record with due consideration of each of the Harris factors, we conclude beyond a reasonable doubt that any error by the trial court in overruling Wiggins's objections to the Sate's comment concerning Wiggins's failure to offer evidence supporting a lesser sentence did not contribute to the jury's assessment of Wiggins's punishment. See Tex. R. App. P. 44.2(a). Accordingly, we conclude the State's comment on Wiggins's failure to offer evidence supporting a lesser sentence was harmless. We overrule Wiggins's first and second issues.
Modification of the Judgment
The jury found Wiggins guilty of robbery, and Wiggins pleaded true to two enhancement paragraphs in the indictment. Wiggins was sentenced as an habitual offender. See Tex. Penal Code Ann. § 12.42(d). The jury assessed punishment of ninety-nine years' confinement and a fine of $7500.
The punishment range provided by penal code section 12.42(d) does not include a fine. Id. (punishment of imprisonment for life or for any term of not more than ninety-nine years or less than twenty-five years). As a result, the $7500 fine assessed by the jury and included in the judgment was not authorized and is void. See Heath v. State, 817 S.W.2d 335, 336 (Tex. Crim. App. 1991) (if a judgment contains a punishment that is not authorized by law, the portion of sentence imposing the unauthorized punishment is void), overruled in part by Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001) (unauthorized probation order did not constitute illegal sentence; unlawful grant of probation not subject to rules that govern unlawful sentences).
We may modify a trial court's judgment to correct errors in the judgment. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd), modified on other grounds by Lockett v. State, 874 S.W.2d 810, 818 (Tex. App.-Dallas 1994, pet. ref'd). Accordingly, we modify the judgment entered by the trial court by deleting the $7500 fine assessed. See, e.g., Hollie v. State, 962 S.W.2d 302, 304 (Tex. App.-Houston [1st. Dist.] 1998, pet. dism'd) (modifying probation condition), pet. dism'd, 984 S.W.2d 263 (Tex. Crim. App. 1999) (per curiam) (mem. op.); McCray v. State, 876 S.W.2d 214, 217 (Tex. App.-Beaumont 1994, no pet.) (modifying judgment containing a sentence greater than the applicable range of punishment). Conclusion
See also Light v. State, No. 05-09-01384-CR, 2000 WL 1176604, at *1 (Tex. App.-Dallas Aug. 21, 2000, no pet.) (not designated for publication) (judgment modified to delete fine where punishment range under penal code section 12.42(d) does not include a fine).
We overrule Wiggins's first and second issues. We modify the judgment entered by the trial court to delete the $7500 fine. As modified, we affirm the trial court's judgment.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish