Opinion
No. PD-1753-06
Delivered: July 2, 2008. DO NOT PUBLISH.
On Appellant's Petition for Discretionary Review from the Fourteenth Court of Appeals Harris County.
Johnson, J., delivered the opinion of the Court, joined by Meyers, Price, Womack, Holcomb, and Cochran, JJ. Keller, P.J., filed a dissenting opinion in which Keasler and Hervey, JJ. joined.
OPINION
After a trial by jury, appellant was convicted of driving while intoxicated (DWI). The trial court imposed a sentence of 180 days in jail and a $500 fine, suspended the jail sentence, and placed appellant on community supervision for one year. The court of appeals affirmed the conviction and sentence. York v. State, No. 14-05-00448-CR (Tex.App.-Houston [14th] 2007). We granted appellant's petition for discretionary review. We reverse the judgment of the court of appeals. On direct appeal, appellant's sole point of error claimed, "The trial court erred in denying [her] multiple requests for a mistrial after the prosecutor repeatedly ignored the court's rulings and admonitions during closing arguments and continued making improper arguments." The court of appeals discussed the jury arguments at issue. It noted that there were "only" seven instances during the state's closing argument at the guilt phase, they occurred at the beginning of the state's argument, and appellant's objections for improper jury argument were each sustained and followed by an instruction to disregard. York, 2006 Tex. App. LEXIS 9200 at * 10. The court of appeals ultimately agreed that "the prosecutor's repeated refusal to heed the trial court's rulings was highly improper," but concluded that the conduct "does not rise to the level of reversal." Id. at * 9-10. It specifically said that "although the prosecutor engaged in improper arguments, . . . the repetitive nature of the argument was not so prejudicial as to require a mistrial." Id. at * 10-11. We granted appellant's two grounds for review which assert that the court of appeals erred: (1) in failing to consider or address all of the factors argued by Appellant as reasons why the instruction to disregard did not cure the flagrantly improper jury argument; (2) in finding that the trial court did not err in failing to grant a mistrial when the distinction of prior Court of Criminal Appeals decisions claimed by the Court of Appeals are directly contrary to other Court of Criminal Appeals decisions and decisions of the same and other Courts of Appeals. The court of appeals quotes extensively from the record and delineates the particulars of the prosecutor's jury arguments that are at issue, and appellant's objections to them and the trial court's rulings. Id. at * 2-6. The record reflects that, included within the challenged argument that the court of appeals acknowledged was "highly improper," the state made multiple attacks on appellant's attorney, including assertions that counsel had misled the jury as to the meaning of "normal use"of appellant's physical and mental faculties. MR. PFEIFFER: Defense Counsel is asking you to follow the law, I'm asking you to do the same. This is the jury charge. This is what-this is from the judge. It tells you what the law is. This is what you're to be guided by when you go back to the jury deliberations room. This is not your normal jury charge. This is what I have right down here defines what normal —
MR. TRICHTER: Objection as to what's normal or abnormal.
THE COURT: Sustained.
MR. TRICHTER: Move to instruct the jury to disregard.
THE COURT: Jury to disregard.
MR. TRICHTER: Move for a mistrial.
THE COURT: Be overruled.
MR. PFEIFFER: This isn't normally defined right here. I fought tooth and nail to get this in here.
MR. TRICHTER: Objection as to what tooth and nail [sic], move to strike.
THE COURT: The jury will disregard. It will be overruled.
MR. PFEIFFER: Because during the entire trial, the voir dire all the way up through closing arguments, you've been mislead [sic] as to what normal use is.
MR. TRICHTER: Objection, Your Honor, now he's striking over at me —
THE COURT: Sustain the objection.
MR. TRICHTER: Move for a mistrial.
THE COURT: Be overruled.
MR. TRICHTER: Ask the Court to instruct the jury to disregard.
MR. PFEIFFER: I want to talk about what normal use is.During this trial, you heard Defense counsel suggest that, and even through cross-examination of these officers, "Do you know what this defendant's normal use is?" Throughout this entire trial, it's been about, according to Defense counsel, what this particular Defendant's normal use is. That is not the law. Think about that for a second. Think about that burden if that was the law on me. I had to prove, according to Defense counsel, what this particular Defendant's normal use is. That's impossible. . . . That's why it's not our law. We have it right down here. Normal use means a manner in which the normal, non-intoxicated person would be able to use his faculties, not necessarily Ms. York. I don't have to prove Ms. York's normal use. That is impossible. How do I know that? How do we know that? Cases are appealed and taken, and they come back with the law and gives [sic] us this interpretation right here.
MR. TRICHTER: Objection, there's been no testimony to that.
THE COURT: Sustained.
MR. TRICHTER: Move to have the jury disregard the Prosecutor's comments.
THE COURT: Jurors will disregard. Be denied.
MR. TRICHTER: Ask for a mistrial.
THE COURT: Be denied.
MR. PFEIFFER: There's [sic] laws that guides [sic] us to take one — interpret normal use. In that particular case, the attorney who took it up on appeal is none other than, Mr. Trichter —
MR. TRICHTER: Your Honor, now I ask again for a mistrial —
THE COURT: Sustain the objection.
MR. TRICHTER: Move to strike the jury —
THE COURT: The jury will disregard.
MR. PFEIFFER: If there is anyone —
THE COURT: Just a minute, Wait till I get through ruling.
MR. PFEIFFER: Yes, Your Honor.
MR. TRICHTER: Your Honor, I ask for instructions —
THE COURT: The jury will disregard the last statement.
MR. TRICHTER: I ask for a mistrial.
THE COURT: That will be overruled.
MR. PFEIFFER: And if there's anyone-THE COURT: And Mr. —
MR. PFEIFFER: Pardon.
THE COURT: Argue the facts in this case not what happened not in front of the jury.
MR. PFEIFFER: Yes, sir.And if there is anyone in Harris County, Texas that knows what normal use is, it's Gary Trichter because he took it up on appeal.
MR. TRICHTER: Your Honor, I move —
THE COURT: That may be unsworn testimony.
MR. PFEIFFER: Your Honor, I would just ask for a little leeway.
THE COURT: That will be overruled and the jury will disregard that.
MR. TRICHTER: I ask the Court to instruct the Prosecutor to remain within the proper bounds of argument.
THE COURT: Well, I just asked him to do that.
MR. PFEIFFER: I'll do that, Your Honor.
THE COURT: Yes, sir.
MR, PFEIFFER: And for him to suggest otherwise as to what the law is, is shameful.
MR. TRICHTER: Your Honor, again, he's attacking me again.
THE COURT: Sustain the objection. Jury will disregard. Motion for mistrial is overruled.
MR. PFEIFFER: When you go back to deliberations, consider that. And I ask you to. He represents Caroline York.Reporter's Record, Vol. III, pp. 13-18. The prosecutor's "highly improper" jury argument continued in spite of multiple sustained objections by appellant, multiple instructions to disregard by the trial court, and specific instructions from the trial court to argue only the facts of the case. Appellant argues that such repetitive improper jury argument was a direct attack on defense counsel's integrity, honesty, and character, and accused defense counsel of manufacturing the law and affirmatively misleading the jury about it. She asserts that the prosecutor's argument "was that trial counsel knew that the law was not as he had led the jury to believe[,]" and that it was a blatant claim that trial counsel was dishonest. Appellant points to the multiple sustained objections to the prosecutor's jury argument, which were accompanied by the trial court's instructions to disregard, and a direct instruction to argue the facts, all of which were ignored by the prosecutor, who continued to argue what he wanted to argue. She suggests that "[w]hen an officer of the court ignores the trial court with impunity, there is little reason to believe that a jury would feel any need to follow instructions that were already being ignored." (Appellant's Brief, p. 20.) She also suggests that there is no reason to believe that the jury would have taken the trial court's instructions seriously because they saw the prosecutor treat the instructions as "idle chatter and inconvenient interruptions in the argument he was going to make . . . regardless of anything the trial judge ruled or said." (Appellant's Brief, p. 21-22.) The state asserts that the first two of appellant's objections, even though pursued to an adverse ruling of denial of her request for mistrial, were too general and nonspecific to preserve error. The state cites several cases that hold that objections to jury argument were too general to preserve error. But those cases involved overruled objections or held that the trial court's instruction to disregard the offending argument vitiated any harm, while in the instant case the trial court sustained appellant's objections and instructed the jury to disregard. It is thus reasonable to conclude that the basis of the objections were readily apparent to the trial court. "The very nature of the prosecutor's argument coupled with defense counsel's objection informed the court of the nature of the error." Everett v. State, 707 S.W.2d 638, 641 (Tex.Crim.App. 1986). We reject the state's argument that appellant's objections were too general to preserve error. The state also suggests that its argument to the jury that it had been misled about the meaning of "normal use" was justified by appellant's cross-examination of the state's police-officer witnesses and by some of his voir dire questioning. It argues that the state's argument was "not inaccurate" "[n]or . . . unsupported by the record." The state also argues that, since most citizens are aware that jurisprudence is shaped by case law created when judgments are appealed, the prosecutor's explanation of the origin of "normal use" as having been developed through case law was simply "a statement of a matter generally within the realm of common knowledge." The state further asserts that its comments in argument, which were directed at defense counsel's tactics employed in developing his defensive theory of the case during trial, were appropriate. It suggests that, if describing defense counsel's conduct as "shameful" could be seen as impugning defense counsel's character, the use of "shameful" rather than employing harsher language was not so inflammatory, prejudicial, or extreme that it was not cured by the trial court's immediate instruction to disregard. "We have consistently held that argument that strikes at a defendant over the shoulders of defense counsel is improper." Gallo v. State, 239 S.W.3d 757, 767 (Tex.Crim.App. 2007), cert. filed, #07-9590, February 29, 2008. "It is axiomatic that the state may not strike at a defendant over the shoulders of his counsel or accuse defense counsel of bad faith and insincerity." Fuentes v. State, 664 S.W.2d 333, 335 (Tex.Crim.App. 1984). We have "long recognized that prosecutors' arguments which attack the personal morals or trustworthiness of defense counsel are manifestly improper because they undermine the adversarial system by unfairly prejudicing the jury against the defendant's attorney." Fuentes v. State, 991 S.W.2d 267, 274 (Tex.Crim.App. 1999). We have also noted the impact of improper closing jury arguments because they are the last thing the jury hears before deliberations and that an instruction to disregard may be insufficient to remove the prejudice of some such arguments. Norris v. State, 902 S.W.2d 428, 443 (Tex.Crim.App. 1995). In the instant case, the prosecutor's challenged comments were made during his second closing argument and were thus part of the last thing the jury heard before deliberations. "[A] prosecutor runs a risk of improperly striking at a defendant over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel's character." Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). In the instant case, the prosecutor twice referred to defense counsel personally by name during the course of the state's closing jury argument and called defense counsel's arguments "shameful." Thus in the instant case, the prosecutor did improperly strike at appellant over the shoulder of his trial counsel. Permissible jury argument generally falls within four areas: 1) evidence summation; 2) reasonable deductions from the evidence; 3) responses to opposing counsel's arguments; and 4) pleas for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex.Crim.App. 1996); Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex.Crim.App. 1973). Striking at a defendant over the shoulder of counsel is not a permissible basis for jury argument. We look to three factors to determine if impermissible jury argument warrants a mistrial. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). These factors are: "(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction)." Id. and Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000). Nevertheless, the state correctly points out that "[b]ecause all argument has its own individual context from which it arises, caselaw concerning improper argument can never be really anything more than instructive in an analysis of a particular improper argument." (State's Reply Brief, p. 32.) As for severity of the misconduct, the prosecutor's statements were a personal attack on defense counsel, by name, and included an explicit assertion that the jury had "been mislead [sic] as to what normal use is" and that appellant's attorney's actions were "shameful." The state acknowledges that "there was no evidence before the jury establishing that defense counsel knowingly misled the jury, and admittedly, the basis of the implication that defense counsel did so . . . was outside the record." (State's Reply Brief, p. 24.) The trial court's attempt at curative measures was ineffective in that the prosecutor continued to make the same arguments, even in the face of the repeatedly sustained objections and repeated instructions to the jury to disregard. Repeated curative attempts and cautionary instructions that are repeatedly ignored cannot be considered effective. We find the first two factors to weigh in favor of appellant. The certainty of a conviction absent the improper argument is extremely speculative. Although there was disputed testimony about whether appellant's faculties were impaired, and the state acknowledged that the police testimony was problematic, the most hotly disputed issue was whether appellant had been, in fact, the driver of the vehicle. Appellant and the other occupant of the car both testified that the other occupant had been driving, thus conceding that appellant had lied at the scene when she had claimed to have been the driver. Appellant's credibility was a major question for the jury to resolve, and we cannot assume with any confidence that a conviction was certain without the prosecutor's attacks on appellant over the shoulder of her trial counsel. The prosecutor's arguments that appellant's trial attorney was shamefully misleading the jury brought into question veracity and credibility-important issues for the jury to resolve. It is appropriate to object to defense jury argument if the state believes the argument is attempting to mislead the jury regarding applicable principles of law; the trial court can then rule on such an objection. However it is inappropriate to fail to object to such a defense jury argument and then respond by arguing that defense counsel is attempting to mislead the jury. Such an attack is a classic example of striking at the defendant over the shoulders of defense counsel. In Fuentes v. State, 664 S.W.2d 333 (Tex.Crim.App. 1984), we held that a prosecutor's comments that defense counsel was acting "in bad faith like usual" and that evidence which defense counsel was seeking to elicit was "garbage," were manifestly improper, harmful, and prejudicial, and thus constituted reversible error. In Gomez v. State, 704 S.W.2d 770, 771-72 (Tex.Crim.App. 1985), we held that a prosecutor's jury argument accusing defense counsel of manufacturing evidence was not cured by an instruction to disregard and was thus reversible error. In this case, we likewise conclude that, in aggregate, the state's jury arguments attacking defense counsel were manifestly improper, harmful, and prejudicial and were not cured by the trial court's instructions to disregard. We hold that the court of appeals erred in finding that the trial court did not abuse its discretion when it failed to grant a mistrial. See, e.g., Hawkins v. State, 135 S.W.3d 72, 76-77 (2004). We sustain appellant's second ground for review, reverse the judgment of the court of appeals, and remand to the trial court for a new trial.
This series of objections and rulings comprises the first five pages of a ten-page closing argument.
The prosecutor's jury argument acknowledged the problematic police testimony, saying,
"The officer's testimony. I'll admit to you, it stunk. It was bad. I've seen much better. Their training and their knowledge of the law could have been a lot better."
Because we have sustained ground number two, we dismiss ground number one.
Though the prosecutor repeated his improper arguments, which may have been moderately inappropriate, those arguments did not relate to the crucial issue in the case, the trial court sustained appellant's objections and gave instructions to disregard, and conviction was certain in any event. Under these circumstances I would hold that the trial court did not err in refusing to grant a mistrial. In Hawkins v. State, we essentially adopted, in the motion for mistrial context, Mosley's three-factor test for determining whether a prosecutor's argument constitutes reversible error. We consider:
(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks),
(2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and
(3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).In the motion for mistrial context, the ultimate question is "whether the refusal to grant the mistrial was an abuse of discretion." The analysis is conducted "in light of the trial court's curative instruction." "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." The touchstone of the first Mosley factor is prejudice. "[P]articularly offensive or outrageous conduct generally gives rise to a natural inference of prejudice and can be considered as such," but we must not assess the "severity" of a prosecutor's comments in isolation from the question of whether the argument had a prejudicial effect. In Mosley, we found a "rabbit trail" comment to be "mildly inappropriate" because, at most, it accused defense counsel of attempting to "distort the jury's view of the evidence through clever argument." We pointed out that the comment did not directly accuse the defense attorney of lying and did not accuse him of manufacturing evidence. In finding the severity of the misconduct to be relatively mild, we also observed that the comment did not inject new facts into the record and that the jury was "in a position to evaluate the truthfulness of the prosecutor's assertion." And because the jury was in a position to evaluate the matter for itself, the prosecutor's comment could even backfire if the jury disagreed with the prosecutor's assessment of defense counsel's conduct. Unlike in Hawkins, where there was an "isolated" incident, inappropriate comments were repeatedly interjected in this case. And the prosecutor's comments in this case rose beyond mild inappropriateness when he talked about defense counsel having taken the issue up in a different case on appeal and when he characterized defense counsel's conduct as "shameful." Indeed, the prosecutor's comment injected one new fact into the case — that defense counsel had taken the issue up in a previous case on appeal. But the prosecutor's argument did not fall on the most severe end of the spectrum. Although he suggested that defense counsel used artful questioning to mislead the jury, the prosecutor did not accuse defense counsel of lying or manufacturing evidence. And while the jury could not evaluate for itself what happened in another case, it could evaluate whether the prosecutor was correct in saying that defense counsel was attempting to mislead the jurors into using a definition of "normal use of mental or physical faculties" that was contrary to the jury charge. If the jury disagreed with the prosecutor's assessment of defense counsel's conduct during trial, then the prosecutor's argument could backfire into a loss of his own credibility with the jury. Moreover, the prosecutor's comments were not aimed at defense counsel's conduct in general but at defense counsel's conduct with respect to a specific issue: the definition of "normal use." That specific issue was not the crucial issue in the case. As the Court points out, the most hotly contested issue was who the driver was. At trial appellant and Danna Love, who was the other occupant of the car, testified that Love was the driver, but at the scene appellant said she was the driver. I do not see any significant risk that defense counsel's comments regarding the meaning of "normal use" would adversely affect the jury's assessment of appellant's credibility on whether she was the driver. And if the jury had believed she was telling the truth when she said at trial that she was not the driver, then the issue of normal use would have become patently irrelevant. If the jury did not believe her trial testimony on the matter, then it would have serious problems with appellant's credibility that have nothing to do with defense counsel's conduct. With respect to the second Mosley factor, it is undisputed that the trial court sustained every objection and issued instructions to disregard. We have sometimes said that a trial court puts an implied "stamp of judicial approval" on an argument when he overrules an objection to it. The reverse applies when the trial judge sustains an argument and gives an instruction to disregard. We ordinarily assume that an instruction to disregard cures any harm flowing from an error. Beyond that general assumption, however, we can say in this case that the trial judge's curative actions encouraged the jury to infer that the prosecutor's attacks were baseless. My strongest disagreement is with the Court's analysis of the third Mosley factor. Contrary to the Court's opinion, the evidence supporting the conviction was very strong. Appellant's DWI prosecution arose from a collision: While traffic was stopped at a red light at 5:40 in the afternoon, appellant's car rear-ended the complainant's car, causing $7000 worth of damage and pushing it into a third car. The complainant testified, "She hit me so hard I didn't realize I hit this guy in front of me." Both the complainant and the driver of the third car got out of their cars and approached appellant's car to find that she and her passenger were both still in the car. The complainant and the driver of the other car both identified appellant as the driver. The complainant further testified that he had seen appellant and her passenger in the car before appellant's car ran into him. Both the complainant and the driver of the third vehicle formed the opinion that appellant was intoxicated. The complainant testified that he smelled alcohol on appellant, and he testified that, from the way appellant acted, he knew "right away" that she was intoxicated. The complainant also saw appellant engage in rude and combative conduct toward the police officer at the scene — "shooting the finger" and using profanity. Moreover, the complainant noticed that appellant did not realize that she had struck his vehicle, thinking instead that she had struck the third vehicle and insisting that the damage caused to that vehicle was not significant. The defense did not cross-examine the complainant or the driver of the third car. To the first police officer who arrived at the scene, appellant admitted being the driver and to drinking one glass of wine, but then the number "went to two and just during lunch." Appellant smelled of alcohol, had a flush, reddish face and slightly bloodshot eyes, and her walking was not "perfectly straight and narrow." Despite the fact that it was 5:40 in the afternoon, appellant told the officer that she had just come from lunch. Appellant could not produce a driver's license when requested, she was combative (as described above), and the officer had to repeat his questions two or three times and even then could not get answers that were appropriate to the questions asked. Appellant became defensive when asked such basic questions as whether she had a driver's license or an insurance card. Although appellant recited the alphabet in a satisfactory manner, she utterly failed the "head tilt" test. The officer had to repeat directions for the head tilt five to ten times before appellant attempted to follow all the directions at the same time — standing with feet together, arms to the side, eyes closed, and head tilted for thirty seconds. Even then, appellant could not do all the requested actions together, and when asked if she wanted to continue with the field sobriety testing, she replied that she did not. During the encounter, the officer noticed that appellant tried to use her cell phone to take pictures of the rear end of the third vehicle which she assumed that she had hit, and he prevented her from doing so. The officer testified that he believed appellant was intoxicated. Two hours after the accident, sobriety tests were conducted at the police station with mixed results. The officer performing tests formed the opinion that appellant was intoxicated. Appellant refused to take the breath test. Appellant also admitted to this officer that she was the driver of the car. Appellant and Love testified that they met for lunch at 1:20 or 1:30 in the afternoon. They both testified that the lunch lasted for approximately three hours, and that during that time, they each consumed two glasses of wine. Love testified that appellant had a nice car and she wanted to drive it, so appellant allowed her to do so. Appellant and Love both testified at trial that they switched places in the car after the accident because appellant was unsure whether her insurance would cover Love as the driver. Both testified that appellant lied to the police when she said she was the driver of the car. On cross-examination, Love testified that she had been friends with appellant for forty years. In response to leading questions, Love admitted that she was "here today" because she did not want to see appellant in trouble "at any cost." The Court seizes on a portion of the prosecutor's closing argument in order to characterize the police testimony regarding impairment as "problematic." What the prosecutor said was that the officers'"training and knowledge of the law could have been a lot better." But the prosecutor was referring to peripheral matters that had little if any impact on the strength of the incriminating evidence in this case. Immediately after commenting on the officers' training and knowledge of the law, the prosecutor said: Mr. Trichter did an excellent job on cross-examination; however, they're still the same people with their training and the normal observations that a lay person such as [the complainant] and [the third driver] can make; yet, not one, but four different witnesses saying intoxicated. And the prosecutor was correct. Four different people concluded that appellant was intoxicated, and her behavior at the scene of the accident strongly supports that conclusion. So the prosecutor's quibbling with defense counsel over the definition of "normal use" did not have any impact in this case. I respectfully dissent.
Hawkins v. State, 135 S.W.3d 72 (Tex.Crim.App. 2004).
Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998),
Hawkins, 135 S.W.3d at 77.
Mosley, 983 S.W.2d at 259.
Hawkins, 135 S.W.3d at 77.
Id.
Id.
Id.
Id. at 78.
Id.
Id.
Id.
See Hawkins, 135 S.W.3d at 83.
Wilson v. State, 938 S.W.2d 57, 62 (Tex.Crim.App. 1996); Good v. State, 723 S.W.2d 734, 738 (Tex.Crim.App. 1986).
Martinez v. State, 17 S.W.3d 677, 691 (Tex.Crim.App. 2000)("Even when the prosecutor mentions facts outside the record during argument, an instruction to disregard will generally cure the error").
Defense counsel was able to show that the officer at the scene had no formal training in administering field sobriety tests and that the officer did not know, at the time he administered the head tilt test, the correct number of seconds that the certification manual requires for that test. The officer at the scene also could not remember exactly how he obtained appellant's driver's license and social security numbers, except to say that he was never in fact shown a driver's license. And he had difficulty stating whether or not appellant had been arrested when she was taken to the station. The officer at the station knew the correct number of seconds for administering the head tilt test but did not know the number of seconds leeway the certification manual allows for successfully completing the test. Defense counsel was also able to show that the officer at the station administered the one-leg-stand test for a longer period than the guidelines allowed.