Dissenting opinion issued November 7, 2002
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-00911-CR
____________
GREGORY THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 803271
OPINION DISSENTING FROM DENIAL
OF EN BANC CONSIDERATION
Bad facts do not have to make bad law. All of us can agree that the complained-of portion of the prosecutor’s punishment argument in this case was beyond the pale. All of us may even be able to agree to reverse this case within the normal bounds of appellate review. Because the Panel Opinion reaches beyond those normal bounds, however, I respectfully dissent to the denial of en banc review.
There are two errors in the Panel Opinion: (1) the conclusion that the prosecutor’s argument was incapable of being cured by an instruction to disregard and (2) the conclusion that the error is constitutional, rather than other, error. Although the first conclusion can be reached by addressing arguments made by appellant, the second conclusion is contrary to the arguments of the parties. The bottom line is that the Panel Opinion cites no case calling for either of its erroneous conclusions, when it could have reversed this case, within the normal bounds of appellate review, by focusing on ineffective assistance of counsel, an issue actually raised by appellant.
Was the Argument Capable of Being Cured by an Instruction?
First, consider the argument itself and the likely effect it would have had on the jury, even in the absence of any objection or instruction to disregard. To place the argument in context, the argument consists of seven lines in a three-page argument that urged the jury to assess the maximum no less than 10 times based on the aggravated facts of the case, particularly the facts adduced at the punishment phase:
Ladies and gentlemen, it’s like what Paul Harvey always says, “Now you’ve heard the rest of the story.” You know what kind of person this man is. You didn’t know beforehand but you sure do know now.
This is a man that steals from young women. He steals from ministers, from individuals who are in business that give him jobs and give him a chance. He’s a user. He’s a con man. He’s a major offender, someone Sgt. Kucifer and other officers have been looking for for a long time. When three different police agencies, the Sheriff’s Department of Harris County, Houston Police Department, Texas Department of Safety Motor Vehicle Theft Division, when they all have investigations on you and want you, you know you’re a bad guy.
Just look at the amount of vehicles that were stolen or that he attempted to steal. He has taken almost $200,000 worth of vehicles. That’s unbelievable. I wish he could get more than ten years. I’m sorry that’s all you can give him but that is the maximum.
He stole thousands of dollars of cash among other things from other individuals. He got $2700 from Mr. Gathers. He got several hundreds of dollars off of Ms. Pittman and her father who helped her take care of her credit problems. You heard about Ms. Darby’s credit card bill. Does he ever try to pay anything back? No. He expects other people to give him something but he never gives anything in return. He just takes and takes and takes.
This man is not going to stop. Do you think he’s going to stop? Look at his history. It goes back to 1996. Maybe the fact he represented himself as a lawyer doesn’t offend you but it does offend me. He takes people’s money, their hard earned money, and says he’s a professional, a lawyer. He is not entitled to do that.
Look at him. The only way you’re going to keep him from doing anything more is to give him the maximum sentence. Send a message to the community that you gave him ten years in prison and assessed a $10,000 fine. Fill out that very bottom of the verdict form there. That’s the most you can do to this man.
When somebody asks you later what this man got, you’ll be able to say he got ten years and a $10,000 fine or whatever it is that you give him. You’re going to have to tell them about the justice system. If you give him any less, what does that say? What happened? I’m asking you to assess the maximum sentence. Don’t let anything less than that happen.
Ladies and gentlemen, there’s something important that I cannot tell you about concerning why you should not give him anything less than ten years. There’s a very important reason but legally I’m not allowed to tell you what it is but it is very important. Trust me on this. If you give him less than ten years, you will find out later what’s going to happen.
Defense Counsel: I would object. That is outside the record. I would object.
The Court: Sustained.
Defense Counsel: I’d move for a mistrial.
The Court: Denied.
I’m going to ask you, ladies and gentlemen, to think about the victim in this case. How many people were involved starting with Mr. Gunnels all the way down to the officer in the final arrest? Think about what they’ve had to endure just by being up here to tell you what happened. Their lives are put on hold for this and all because of him, this man right here.
I think it’s pretty clear that the only appropriate punishment in this case is ten years in prison. It would be a travesty if it were anything less. In fact, I wish it could be more. Send a statement to him and send a statement to anybody who looks at this sentence in the future by giving him ten years in prison and a $10,000 fine. When that Judgment is sent up, whoever is looking at that prison sentence can see that a jury gave this man ten years and a $10,000 fine, that he received the maximum, and maybe they’ll take that into consideration. Maybe it will tell him that when he gets out that he can’t continue to do it again. Give him the maximum.
Maybe we’ll see him again. Maybe I’ll prosecute him again and maybe not. It’s in your hands now. I’d ask you to remember all the victims’ testimony and consider every potential victim in this county and give him the maximum sentence. Thank you very much.
(Bolded are the prosecutor’s arguments to give the maximum; bolded and italicized is the complained-of argument.)
It is important to begin any analysis of whether the argument was capable of being cured by an instruction to disregard with the likely effect the complained-of argument would have had on an ordinary, reasonable juror. The prosecutor asked the jurors to consider something important that the law did not allow him to explain; thus, they should trust him on this, or, if they assessed less than 10 years, they would find out later what was going to happen. What is a juror to make of this argument? Is this the sort of argument that engenders trust in the prosecutor by jurors? Does this argument inflame jurors? Or does it cause curiosity and bewilderment? Does the argument seem to admit within itself that it is improper?
Then, consider that defense counsel objected to the prosecutor’s argument as being outside the record, and the trial court sustained the objection. What would jurors conclude from that? Consider that this was not the first time during trial that the jurors had observed objections and trial-court rulings. At the guilt phase of this short trial, defense counsel objected three times, and the trial court sustained all three objections and volunteered an instruction to the prosecutor not to lead after sustaining one objection. At the guilt phase, the prosecutor objected seven times, the trial court sustained four of the objections, and the trial court instructed defense counsel to rephrase her question twice. At the punishment phase, defense counsel objected seven times, and the trial court sustained five objections. Wouldn’t a reasonable juror, having observed many objections sustained, with instructions given to counsel on some occasions, conclude that the prosecutor had engaged in improper argument? Would a reasonable juror have been swayed by an argument that not only appeared to be improper on its face, but which the trial court had deemed improper by sustaining appellant’s objection?
In determining the actual issue before us, of whether an instruction to disregard could have cured any error, consider the following, possible instruction:
Ladies and Gentlemen of the Jury, you are instructed to totally disregard the prosecutor’s argument urging you to assess no less than 10 years for reasons the prosecutor admits he is not allowed to tell you. I instruct you to disregard the argument and not to consider it for any purpose. It’s like parole and good-conduct time, which we discussed during jury selection, and about which I instructed you in the jury charge, that you are not to consider it for any reason in arriving at your verdict. What you are to consider is the evidence that has been introduced throughout the trial, and nothing else. Is there anyone on this jury who does not understand that I am instructing you to disregard the prosecutor’s last argument totally? Is there anyone on this jury who has even the slightest doubt that he or she can obey my instruction to disregard?
I submit that ordinary, reasonable jurors would have been able to obey such an instruction by the trial court. Indeed, they are normally presumed to obey such an instruction:
The adversary system thus depends upon a belief that the declaration of a mistrial ought to be an exceedingly uncommon remedy for the residual prejudice remaining after objections are sustained and curative instructions given. For this reason, our system presumes that judicial admonishments to the jury are efficacious. Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted.
Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996) (citations omitted).
I acknowledge that such an instruction to disregard was not given in this case, but whose fault is that? I submit that the error in this case lies in defense counsel’s not requesting an instruction to disregard, which should have led the Panel Opinion to decide the case on the second point of error, ineffective assistance of counsel.
Instead of beginning with a determination of whether an instruction could have cured any prejudice from the argument here, the Panel Opinion began with the definition of what constitutes incurable argument. The Panel Opinion then attempted to show how the argument here neatly matches each part of the definition of incurable argument. The main difficulty is trying to demonstrate that the argument here is inflammatory. To buttress its position, the Panel Opinion employs statements about the dangerousness of speculation from a case in which the trial court overruled the defense objection. See Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986). The Panel Opinion also includes a quotation from a case in which two defense objections were overruled to support the proposition that arguments outside the evidence are usually designed to arouse the passion and prejudices of the jury. See Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990). Of course, here, the trial court sustained appellant’s objection.
Examples of inflammatory arguments for which instructions to disregard were sufficient to cure any prejudice are found in the very cases the Panel Opinion cites for the general proposition of what constitutes incurable argument. See Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991) (holding instruction to disregard cured prejudice from prosecutor using an Adolf Hitler analogy to show the accused was evil); Logan v. State, 698 S.W.2d 680, 683-84 (Tex. Crim. App. 1985). The Logan case is particularly instructive because what happened in the Dallas Court of Appeals seems to be what is happening in this case. A majority of the panel of the Dallas Court of Appeals had apparently been particularly incensed by the prosecutor’s conduct at trial. Despite a motion in limine ruling, which prohibited the prosecutor from developing the fact that the accused and her alibi witness (both females) had had a homosexual relationship, the prosecutor argued that the two had slept together for five years. Id. at 681, 683. The Dallas Court of Appeals reversed even though an instruction to disregard had been given. Id. at 681. The Court of Criminal Appeals reversed the Court of Appeals, disagreeing that the only inference was that the two were homosexual lovers, but holding that, even if that had been the only inference, the argument was cured by the instruction to disregard. Id. at 683.
Comparing the accused to Adolf Hitler and implying that the accused is homosexual are good examples of inflammatory arguments. Another example is, “If you find the defendant ‘Not Guilty,’ you will be signing the State’s witnesses’ death warrants.” See Ganesan v. State, 45 S.W.3d 197, 206 (Tex. App.—Austin 2001, no pet. h.) (holding any prejudice cured by instruction). An inflammatory argument fans the flames of emotion to carry the jurors to an irrational verdict. All of the above examples of inflammatory arguments, however, were cured by instructions to disregard. This includes the very cases upon which the Panel Opinion relies for the guiding principle in this area. From this, one may fairly infer that only an extremely inflammatory argument is incapable of being cured by an instruction.
It is noteworthy that the Panel Opinion cites no case that was reversed in which, as here, the defense objection to argument was sustained, but no instruction to disregard was requested. To the contrary, the cases it does cite for the general proposition of what constitutes incurable argument held that an instruction to disregard cured any prejudice from inflammatory arguments invoking Adolf Hitler and homosexuality. Several adjectives come to mind to describe the prosecutor’s argument in this case, such as bizarre, incongruous, or curious, but inflammatory, much less extremely inflammatory, does not seem to fit.
To hold that the argument in this case was so inflammatory that it was incapable of being cured by an instruction to disregard derogates the ability of trial courts to formulate instructions to disregard prejudicial matters and the ability of jurors to follow those instructions. As demonstrated, the Panel Opinion jumps from the general proposition, over the very holdings of the cases its cites, to reach its conclusion that the argument here was incurable. This is a reach too far.
Was the Error Constitutional?
Having held that the error here did not have to be preserved by the usual method, the Panel Opinion reviewed the error as constitutional error, even though neither party had done so. There is sometimes a danger when appellate courts stray from the arguments of the parties. It may give the appearance that judicial restraint has been abandoned. Here, appellant’s brief claimed that the argument was improper, not because it violated some constitutional principle, but because it was contrary to black-letter law. The State’s brief also concluded that the error was not constitutional, but other, error.
Nevertheless, the Panel Opinion launched into its own analysis, seizing upon potential exceptions from the only two cases in which the Court of Criminal Appeals has addressed whether argument error is constitutional or other error, in both cases holding that the improper arguments constituted other error. See Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000) (noting that comments upon matters outside the record generally do not raise unique concerns that would require assigning constitutional status); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (noting that, even though of special concern, improper comments on defense counsel’s honesty have never been held to amount to a constitutional violation). The Panel Opinion spends nearly a fourth of its entire length trying to justify why the error in this case is constitutional error, even though the parties analyzed it as other error.
What is disconcerting about the Panel Opinion’s analysis is that it finds constitutional error because the prosecutor argued outside the evidence (allegedly implicating confrontation rights) unfairly (allegedly implicating due-process rights). I suggest that most improper arguments of prosecutors could be described similarly. Thus, contrary to the Court of Criminal Appeals’s opinions in Mosley and Martinez, the Panel Opinion could be used as precedent to find argument error to be constitutional as a general rule, rather than as the rare exception. Once again, the Panel Opinion relies on cases holding the opposite of what the cases cited held as the basis for its decision. The Panel Opinion utilizes slender exceptions, rather than the holdings of the cases on which it relies, to reach its conclusion, another reach too far.
Reversing Without Destroying the Jurisprudence
There is an easier way to accomplish the same result—reversing the case—without doing damage to the jurisprudence in the areas of both preservation of argument error and harmless-error analysis. Appellant raised a second point of error claiming that trial counsel was ineffective for not requesting an instruction to disregard so as to preserve the argument error properly. If a majority of this Court is inflamed by the complained-of portion of the prosecutor’s argument so as to feel it was that argument that caused the jury to assess a maximum sentence in this case, then trial counsel was deficient in his representation for not having requested an instruction to disregard, and appellant was harmed because it was the prosecutor’s remark about something he could not explain that resulted in the maximum sentence.
Conclusion
Because of the many times the prosecutor urged the maximum sentence based on the evidence, I might have disagreed with a Panel Opinion that reversed this case on the basis of ineffective assistance of counsel. I would not have requested en banc consideration of this case over that disagreement on a judgment call, however. Because of the manner in which the Panel Opinion ventured into holdings undermining well-settled principles of preservation and harm, I did request en banc consideration. From the denial of that request, I respectfully dissent.
Tim Taft
Justice
Panel consists of Justices Hedges, Jennings, and Price.
En banc consideration was requested. Tex. R. App. P. 41.2(c).
A majority of the Court voted against en banc consideration of the panel’s decision.
Justice Jennings concurring in the denial of en banc consideration.
Justice Taft, joined by Justice Nuchia, dissenting from the denial of en banc consideration.
Justice Mirabal not participating.
Publish. Tex. R. App. P. 47.