COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-113-CR
CYNTHIA SUE HARDEE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In seven issues, Appellant Cynthia Sue Hardee appeals her convictions for
theft of property and misapplication of fiduciary property. We affirm.
1
… See Tex. R. App. P. 47.4.
II. Factual and Procedural History
The friends and family of the complainant, Johnny Bryant, describe him
as “slow” and “trusting.” According to the State’s expert, forensic clinical
psychologist Jack Price, Johnny’s full scale IQ is 76, leading Price to classify
Johnny as “borderline intellectual functioning or borderline . . . mentally
retarded.”
Johnny withdrew all of the money he had accumulated over thirty years
as a grocery store stocker from the store’s profit-sharing plan—$111,275.23
after taxes and the early withdrawal penalty.2 He contributed this money to
finance a business with Hardee.
Hardee used $100,000 of the funds to purchase a certificate of deposit,
used the certificate of deposit to take out a $100,000 loan, and placed the
proceeds of the $100,000 loan into a joint checking account under her name
and Johnny’s, which she opened with $10,000 from the $111,275.23.3
Johnny wrote no checks, but Hardee did. As recounted at trial, among
other things, Hardee used the funds in the checking account to pay bills for
herself and her friends; to pay for vision check-ups and new glasses; to treat
2
… Johnny originally had approximately $151,000 in the plan.
3
… $50 of the $111,275 was used to open a savings account and the
remaining $1,225 was taken out as cash.
2
her daughter and niece and Johnny’s daughter to Build-A-Bear parties; to rent
furniture and a big-screen television for her home; to have her hair styled and
her dog groomed; to buy Christmas decorations for herself and her friends; to
buy musical instruments for her family and friends; to send money to her
brother’s prison account; and to tithe a large amount to her church.4 A partial
list of some of Hardee’s expenditures (less benefits received by Johnny),
according to the State’s forensic accountant’s testimony and exhibits at trial,
is as follows:
• Vehicles & Trailers: $26,822.94
• Alpha Excavating: $15,206.00
• Crossroads Baptist Church: $11,627.40
• Wal-Mart: $2,391.22
• The Music Center $1,855.52
• ABC Distributors: $1,344.15
• Doctor Visits: $1,087.59
• Brookshire’s: $994.35
• Credit Card Payment: $700.00
• Lifeway Christian Store: $699.12
4
… The record reflects that she also sold her van to Johnny’s ex-wife and
used Johnny’s funds to purchase another car for herself.
3
• Christie Wethington (scrapbooking): $414.05
• Build-A-Bear $313.41
• Hair Cut: $45.00
• Hollywood Hounds: $35.64
• Blockbuster: $30.03
• Country Candles & Fans: $29.73
• Azle Jr. High (Hardee’s daughter): $20.00
• American Craft Mall: $14.33
Johnny and Hardee never started a business. Within three months, the
funds were gone, 5 and Johnny appeared on his sister’s doorstep with two
garbage bags containing his possessions, homeless. The State charged Hardee
with theft of property valued at $20,000 or more but less than $100,000, and
with misapplication of fiduciary property valued at $20,000 or more but less
than $100,000.6 A jury found Hardee guilty on both counts and assessed
5
… Johnny withdrew his funds from the profit-sharing account in October
2002; the money was gone by January 13, 2003.
6
… See Tex. Penal Code Ann. §§ 31.03, 32.45 (Vernon Supp. 2008).
Both offenses are third-degree felonies. See id. §§ 31.03(e)(5), 32.45(c)(5).
A third-degree felony is punishable by a term of imprisonment of not more than
ten years or less than two years and a fine not to exceed $10,000. Id. § 12.34
(Vernon 2003).
4
punishment at five years’ confinement on each count (to run concurrently) and
a $10,000 fine on each count. This appeal followed.
III. Legal and Factual Sufficiency
In her first two issues, Hardee complains that the evidence is legally and
factually insufficient to support her convictions. Although Hardee purports to
challenge her conviction for misapplication of fiduciary property based on the
legal and factual sufficiency of the evidence on the intent element of that crime,
see Tex. Penal Code Ann. § 32.45(b), she has failed to adequately brief this
portion of her first two points.7 Therefore, we overrule this portion of her first
two points.
A. Standards of Review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the prosecution in
order to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
7
… That is, she has failed to provide any argument or legal authority to
support this portion of her first two points. See Tex. R. App. P. 38.1(i); Tong
v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S.
1053 (2001); Mosley v. State, 983 S.W.2d 249, 256 (Tex. Crim. App. 1998)
(op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
5
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the
sole judge of the weight and credibility of the evidence. See Tex. Code Crim.
Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568
(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2008). Thus, when
performing a legal sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1131 (2000). Instead, we “determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict.” Hooper
v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume
that the factfinder resolved any conflicting inferences in favor of the
prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Clayton, 235 S.W.3d at 778.
6
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse
under the second ground, we must determine, with some objective basis in the
record, that the great weight and preponderance of all the evidence, though
legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the
7
factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain
v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record
clearly reveals that a different result is appropriate, we must defer to the jury’s
determination of the weight to be given contradictory testimonial evidence
because resolution of the conflict “often turns on an evaluation of credibility
and demeanor, and those jurors were in attendance when the testimony was
delivered.” Johnson, 23 S.W.3d at 8. Thus, unless we conclude that it is
necessary to correct manifest injustice, we must give due deference to the
factfinder’s determinations, “particularly those determinations concerning the
weight and credibility of the evidence.” Id. at 9. Our deference in this regard
safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704.
B. Effective Consent
Theft occurs when a person “unlawfully appropriates property with intent
to deprive the owner of [the] property,” without the owner’s effective consent.
Tex. Penal Code Ann. § 31.03(a), (b)(1). Consent is not effective if it is given
“by a person who by reason of . . . mental disease or defect . . . is known by
the actor to be unable to make reasonable property dispositions.” Id.
§ 31.01(3)(C).
8
Hardee argues that the evidence is not sufficient to show that Johnny
lacked the ability to give valid consent and to show that she was aware of his
inability, if any, to give valid consent.8
Hardee first directs us to Johnny’s sister’s testimony for the proposition
that it appeared that Johnny consented to every withdrawal, and she claims
that, in the record, the State “acknowledges that [Hardee] obtained consent
from [Johnny] for all transactions.” Johnny’s sister testified as follows with
regard to a conversation she had with Hardee, with Johnny present, when she
learned about the expenditures:
Q. And when you were asked about expenditures and stuff, when
[Hardee] would tell you what they were on and such, Johnny was
agreeing for the most part, wasn’t he?
A. It might appear that way.
Q. Well, he did, didn’t he?
A. It might appear that way, that he was agreeing.
Q. When she said that Johnny wanted this done, Johnny was
saying, “Yeah, I remember that,” things of that nature; is that
correct?
8
… Hardee also states as part of her factual sufficiency point that “[i]n
addition to the question of consent, the evidence in this case is also insufficient
to show that [Hardee] had the requisite intent to deprive [Johnny] of his
property.” However, Hardee has failed to brief this contention, so to the extent
that she has raised this as part of her first issue, we overrule it as inadequately
briefed. See Tex. R. App. P. 38.1(i).
9
A. He made all kinds of comments.
Q. He made what?
A. All kinds of comments.
Q. Well, he never said, “[Hardee] took this money from me,” did
he?
A. On that particular day?
Q. On that tape. 9 Anytime during that meeting.
A. No.
But Johnny’s sister also testified that Johnny went through first grade twice,
had been a special education student, and could not read or do math problems,
and that it had taken their mother four years to teach Johnny to drive, even
when using the same route every day, which could have reasonably allowed the
jury to conclude that any consent Johnny gave was ineffective. And the other
portion of the record Hardee cites to support her proposition that the State
acknowledged that Hardee had consent from Johnny does not do so; instead,
it only establishes the following: that Johnny finished high school with a
“[s]pecial education diploma”; that when his sister asked him about his plans
for businesses, “he just said that it was all being taken care of” and that she
9
… Johnny’s sister recorded the conversation on audiotape. The
audiotape was not admitted into evidence.
10
did not know about any specific businesses before the checks came to light;
and that Johnny had been married twice, had three children from those two
marriages, and was able to support them.10
Hardee acknowledges that the State presented a number of witnesses
who testified that Johnny was “slow,” but she contends that the witnesses she
presented who had dealings with Johnny “never noticed any obvious mental
problems,” supporting her contention that the evidence is insufficient to prove
her awareness of his condition.11 Hardee refers to the testimony of John
Webster, the music minister of Crossroads Baptist Church, who testified that
Johnny did not seem any different to him from anyone else.12 But Webster also
10
… When asked whether Johnny knew how to pay enough money to
assist his ex-wives with his children, his sister replied, “He knew how to hand
somebody some money when they asked for it, if he had it.”
11
… She also relies on her own testimony that she had no business
experience prior to the partnership with Johnny, apparently to account for the
abysmal failure of their partnership.
12
… Webster testified,
I believe that Johnny did know what he was doing. Johnny
was—you know, every time you saw him when you go into
Brookshires, he was always working. He was always doing things
just like everybody else. He seemed to have the same type of
lifestyle that the rest of us did. He worked, he had a family, he
came to church, he learned, and he always had things to talk
about, and he always had things that he wanted to do. And so I
just considered him to be no different than anyone else.
11
testified that he did not think Johnny ever joined the church, although he “did
attend there for a while.” 13 And he testified that when Johnny asked him to
attend a seminar on how to become a millionaire because Johnny did not want
to go to it alone, he told Johnny that he was not interested.
Hardee also refers to the testimony of Ann Jensen, a Rent-A-Center
employee with a history of renting to Johnny. Jensen testified that she never
had any concerns about renting property to Johnny and that nothing ever
happened to make her think Johnny was incompetent. She acknowledged that
if she had thought he was incompetent, she could not have rented anything to
him. She stated that she had no reason to believe that he could not read the
rental contract, but she also stated that out of all of her customers, “maybe
two percent” read the contract and that she did not think Johnny read it
“[u]nless he took his copy and read it.”
Hardee also refers to the State’s expert witness’s diagnosis of Johnny as
suffering “from a mild defect” to support her effective consent argument. But
the State’s expert witness testified that Johnny had a “moderate defect in
intelligence,” not a “mild” defect, and he testified that based on his evaluation
13
… Elsewhere, the record reflects that Hardee wrote an $11,000 check
to that church out of Johnny’s funds as tithing for “J&Cc Enterprises,” which
she testified stood for Johnny, Cynthia (Hardee), and Candace, Hardee’s
daughter.
12
of Johnny, he concluded that Johnny “is defective or intellectually and
academically impaired,” and that “based on [his] testing and observations of
[Johnny], . . . he is not able to manage his own financial affairs.” He added
that Johnny is easily exploited by others “due to his intellectual defects,” that
Johnny is dependent on others and “needs and wants and seeks out assurance
and guidance from others, and he can be quite easily taken advantage of.”
Hardee contends that the State’s evidence does not support an inference
that Johnny suffers from a defect that leaves him incapable of making a
reasonable disposition of his property, “much less that [she] was fully aware of
such a defect.” And she challenges the credibility of several of the State’s
witnesses: Sean Trotter, who received some of Johnny’s money; Sam Gilley,
who volunteered with Johnny for the Texas Girls Choir;14 and Carol Crumbaker,
an officer manager at the Brookshire’s where Johnny works.15
However, it is the jury’s duty to evaluate the credibility and demeanor of
witnesses and to determine the weight and credibility of the evidence, not ours.
14
… Gilley testified that Johnny could not read the written instructions for
setting up the choir’s equipment and that his impression of Johnny was that he
was slow and “would have a problem with any kind of a complicated
transaction.” He also testified about Johnny’s trusting nature and stated, “I
think I could sell John the Brooklyn Bridge.”
15
… Crumbaker testified that she concluded that Johnny was “mentally
challenged” from her conversations with him and that it would not take very
long for anyone to come to this conclusion.
13
See Johnson, 23 S.W.3d at 8–9. And after reviewing the record, we conclude
that even without the testimony of these witnesses, there was ample evidence
upon which the jury could have concluded that Johnny had a mental defect that
would prevent him from being able to make reasonable property dispositions
and that, beyond a reasonable doubt, Hardee was aware of it. See Tex. Penal
Code Ann. § 31.01(3)(C).
First, in addition to the State’s expert witness’s testimony about Johnny’s
intellectual capacity and the testimony of Johnny’s sister, the jury also heard
Nell Dahl, one of Johnny’s childhood friends, testify that she has known Johnny
for fifty years, that he has been mentally challenged for as long as she has
known him, that he was “special” and different mentally (“back then, we said
mentally retarded”), that he did not read or write, and that it was obvious that
he was mentally challenged.
Then, Alvie Lee Meredith, Johnny’s co-worker and roommate, also
testified that Johnny was “mentally challenged,” that he was a “very trusting”
person, and that he would be easily taken advantage of. He stated, “Johnny
is the type person, you rob him blind, he’ll help you do it.” Meredith also
testified that while he was Johnny’s roommate, Hardee gave them a 32-inch
television when she replaced it with the big screen television that elsewhere the
record reveals she rented from Rent-A-Center and for which she made at least
14
one payment using Johnny’s funds. He testified that he, Hardee, and Johnny
went to a furniture store and purchased a bed set for Meredith using Johnny’s
funds, that it was Hardee’s idea more than Johnny’s to do so, and that Hardee
got the new mattress out of the set and Meredith received her used one.
Additionally, William Sharp, another of Johnny’s childhood friends,
testified that “you wouldn’t have to be around” Johnny for long to realize he
was slow. He further testified that it would be easy to pick up on Johnny’s
slowness “pretty quick” because of “his actions, the way he carried his self
[sic], his speech.” He also testified that he did not think, as to numerical issues
and financial transactions, that Johnny would be able to distinguish between
a hundred dollars and a thousand dollars, but that Johnny could do tasks
involving repetition. Jack Allen, a former volunteer fireman, testified that
“[t]here’s no question” that Johnny was mentally challenged because he was
slow in thinking and reacting to situations. He stated, “You could talk to him
for just a few minutes, and you realized that he wasn’t as quick witted as what
we’d call normal people.”
Finally, Hardee’s own testimony provided the jury the opportunity to
judge her credibility. She admitted that she signed every check and spent at
least $37,000 of Johnny’s money, but she testified that she did not intend to
steal from Johnny, and that she did not steal from him. She also testified that
15
Johnny was the one who approached her about going into business and wanted
a 50/50 partnership; that she always had Johnny’s consent to write the checks
(alternatively also claiming that some of the money was a loan to her and that
Johnny told her that with a 50/50 partnership, she was to have half of the
money); and that she had no idea that Johnny was not capable of handling his
own money. She specifically testified that she believed Johnny was mentally
competent. The jury was entitled to disbelieve some or all of her testimony.
See Johnson, 23 S.W.3d at 8–9.
Viewing the evidence from numerous witnesses regarding Johnny’s
mental deficiency in the light most favorable to the prosecution, without
reevaluating the weight and credibility of the evidence, we hold that the
evidence of ineffective consent is legally sufficient to uphold Hardee’s theft
conviction. Likewise, viewing the evidence in a neutral light, we cannot say
that the record clearly reveals that a different result is appropriate or is
necessary to correct a manifest injustice. Therefore, we hold that the evidence
is also factually sufficient to uphold Hardee’s theft conviction. We overrule
Hardee’s first two points.
IV. Closing Arguments
In Hardee’s third through seventh points of error, she complains about
various aspects of the State’s closing arguments at the guilt-innocence and
16
punishment phases of trial. We have reordered them based on the order in
which they appear in the record.
A. Standard of Review
To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; or
(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex.
Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493
S.W.2d 230, 231 (Tex. Crim. App. 1973).
Furthermore, if a jury argument exceeds the bounds of proper argument,
the trial court’s erroneous overruling of a defendant’s objection is not reversible
error unless it affected the appellant’s substantial rights. Tex. R. App. P.
44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App. 2000);
Mosley, 983 S.W.2d at 259. In determining whether the appellant’s substantial
rights were affected, we consider (1) the severity of the misconduct (i.e., the
prejudicial effect of the prosecutor’s remarks), (2) curative measures, and (3)
the certainty of, depending on the phase of trial, either the conviction or the
punishment assessed absent the misconduct. Martinez, 17 S.W.3d at 692–93;
Mosley, 983 S.W.2d at 259. We apply the same considerations to whether the
trial court abused its discretion when the trial court sustains an objection and
17
instructs the jury to disregard but denies a defendant’s motion for a mistrial.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Only in
extreme circumstances, when the prejudice caused by the improper argument
is incurable, i.e., “so prejudicial that expenditure of further time and expense
would be wasteful and futile,” will a mistrial be required. Id.; see also Simpson
v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S.
905 (2004).
B. Guilt-Innocence Phase Objections
1. Points 5 and 6: Mistrial and Enron Reference
In Hardee’s fifth point, she complains that the trial court failed to grant
her motion for mistrial after the prosecution allegedly injected facts outside the
record to indicate that the prosecutor was an expert and that the jury should
follow his recommendations. In her sixth point, she complains that the “trial
court erred in overruling [her] objection to prosecutors comparing the present
case to the infamous Enron case in an attempt to paint [Hardee] with the same
prejudice attached to Enron.”
During closing arguments, defense counsel told the jury that “[t]his case
is a civil case . . . . This is a civil suit that’s being prosecuted in a criminal case
. . . . She should be sued . . . . This thing should be sorted out in the civil
court because that’s exactly what this is.” In response to the “civil suit”
18
argument, the following exchange occurred during the State’s closing
argument:
[PROSECUTOR]: . . . . Okay. Now, mentioned just a couple—oh,
yeah. This is a civil case. He says this is a civil case. In all
cases,—not all. In most cases where people get caught in what we
call white collar crime or nonviolent crime—
[DEFENSE]: Objection, Your Honor, in all cases, other cases. It’s
clearly 401, 403, and 404. It’s also prior extraneous.
THE COURT: Sustained.
[DEFENSE]: Have an instruction the jury disregard that argument?
THE COURT: Jury will disregard the last comment of counsel.
[DEFENSE]: We move for [a] mistrial.
THE COURT: Denied.
[PROSECUTOR]: All right. I’ll mention to you that, shall we say,
that’s an easy out for people who have been caught red-handed,
with their hand in the cookie jar, say, oh, well, this is a civil case,
let’s go to civil court, let’s don’t have any criminal penalties
attached to Enron. No, it’s all civil. That’s a very common, very
common thing.
[DEFENSE]: Objection, Your Honor, same thing [i.e., 401, 403,
404, and prior extraneous].
THE COURT: Sustained.
[DEFENSE]: Have an instruction jury disregard that.
THE COURT: Jury will disregard the last comment of counsel.
[DEFENSE]: And we move for a mistrial.
19
THE COURT: Denied. [Emphasis added.]
When a trial court sustains an objection and instructs the jury to disregard
the State’s argument but denies a defendant’s motion for mistrial, the issue is
whether the trial court abused its discretion in denying the mistrial. Hawkins,
135 S.W.3d at 77. Its resolution depends on whether the court’s instruction
to disregard cured any prejudicial effect. Id. To determine whether the trial
court abused its discretion, we balance (1) the severity of the misconduct
(prejudicial effect), (2) curative measures, and (3) the certainty of conviction
absent the misconduct. Id.; Mosley, 983 S.W.2d at 259.
In the fifth point, the prosecutor was responding to defense counsel’s
argument that Johnny should have sued Hardee and that civil court was more
appropriate under the circumstances. This was a permissible argument in that
it was an answer to the argument of opposing counsel. See Felder, 848
S.W.2d at 94–95. Hardee received an instruction to disregard, and an
instruction to disregard is presumed to cure the harm. Wesbrook v. State, 29
S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001).
It is presumed that the jury will follow a trial court’s instruction to disregard a
comment. Id. at 116. If the instruction cured any harm caused by the
improper argument, a reviewing court should find that the trial court did not err;
almost any improper argument may be cured by an instruction to disregard.
20
Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App.), cert. denied, 516
U.S. 832 (1995); Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.—Fort
Worth 1997, pet. ref’d). Only if the reviewing court determines that the
instruction was ineffective does the court go on to determine whether the error
was harmful. Tex. R. App. P. 44.2.
Given the volume of testimony to support Johnny’s ineffective consent,
previously discussed above, and Hardee’s own admission that she spent at
least $37,000 of Johnny’s money, Hardee’s conviction was certain even absent
the misconduct, if any. Therefore, we hold that the instruction to disregard
cured any harm, and we overrule Hardee’s fifth point.
Furthermore, as demonstrated above, the trial court did not overrule
Hardee’s objection to the statement about Enron; it sustained that objection.
Therefore, Hardee’s sixth point is without merit. Additionally, however, the trial
court granted her an instruction to the jury to disregard the comment, and the
comment was made in the same vein as the prosecutor’s earlier comments
about civil trials in response to defense counsel’s earlier argument. Because
this passing reference, in light of the evidence presented at trial and likelihood
of conviction, could not have led to Hardee’s conviction, we overrule Hardee’s
sixth point.
21
2. Point 4: Unsworn Testimony and Opinion Objections
In Hardee’s fourth point of error, she complains of three statements made
by the State during the guilt-innocence phase closing argument:
a. First Statements 16
[PROSECUTOR]: . . . . But two weeks later, when she starts
spending that money for a purpose other than going into business,
she misapplied it. It’s contrary to an agreement. There doesn’t
have to be a written agreement. Most people go into business and
partnerships on a handshake.
[DEFENSE]: Objection, Your Honor, as to what most people do.
Again, he’s testifying outside the record.
[PROSECUTOR]: Common, everyday knowledge, Your Honor.
THE COURT: Overruled.
[DEFENSE]: Note our exception.
[PROSECUTOR]: Thank you. Now, it didn’t take long for him—for
her to starting [sic] spending the money for her own personal
benefit. Folks, give her the benefit of the doubt. Maybe she didn’t
intend to steal it. I think she had the whole scheme.
[DEFENSE]: Objection, Your Honor, as to what counsel thinks.
[PROSECUTOR]: I think the evidence will show—I’ll rephrase. I
think the evidence will show—
[DEFENSE]: May I have a ruling on my objection, Your Honor?
16
… Hardee lists these as second of her three complained-of sections
under her fourth point.
22
THE COURT: It’s overruled because he didn’t say anything.
[PROSECUTOR]: I think the evidence—
[DEFENSE]: Objection, Your Honor. He says—you know, it’s his
opinion.
[PROSECUTOR]: My opinion of the evidence, Your Honor.
[DEFENSE]: Opinion of the evidence—
THE COURT: Overruled as stated.
[PROSECUTOR]: Now, anything I tell you is what I believe the
evidence shows. Obviously your judgment is 12 times better than
mine, so you call it like you see it, and that’s the important part.
But—
[DEFENSE]: May I have a continuing objection to this, Your Honor?
I object to that last statement again. And could I have a continuing
objection on this line?
THE COURT: Overruled. And your objection is to—
[DEFENSE]: Any references to what his thought and his belief in
what the evidence shows—
THE COURT: That’s granted and overruled.
[DEFENSE]: Continuing objection is granted?
THE COURT: Yes, it’s granted. [Emphasis added.]
23
b. Second Statement17
[PROSECUTOR]: She’s smart enough to handle car deals, put titles
together. She—let me tell you, the woman ain’t no dummy. She
wants you to believe she is. She’s trying to scam you the same
way she scammed Johnny. To make you think, oh, poor Cynthia,
she doesn’t know what she’s doing. She sold cars. Now, when
you sell cars, you got to go out on the lot. You’ve got to meet the
people. You’ve got to talk to them. You’ve got to know what’s on
the car.
[DEFENSE]: Your Honor—
[PROSECUTOR]: Everybody knows that.
[DEFENSE]: Objection, Your Honor. There’s no evidence she ever
sold cars. He’s testifying outside the record.
THE COURT: Overruled. [Emphasis added.]
c. Third Statement
[PROSECUTOR]: . . . . Ladies and gentlemen, 75,239. That’s the
number that has been calculated up through this account. I submit
to you, ladies and gentlemen, even if she didn’t steal it, she darn
sure didn’t apply it consistent with the agreement they had to go
into business. So if she wants to say she didn’t steal it or I didn’t
intend to steal it when I was at the bank, then, guess what, she
formed an intent to misapply it later, and she misapplied it contrary
to the agreement.
A partner is a fiduciary. A commercial bailee is nothing more
than somebody that keeps a property for hire like a parking lot or
a warehouse or something, so that doesn’t really enter into it. It’s
just in the law. So we don’t really have that issue. But what I’m
17
… Hardee lists this as first of her three complained-of sections under her
fourth point.
24
here to tell you, ladies and gentlemen, is whether you find her
guilty of one count or you find her guilty of both counts, you can
do either one, but I submit to you Cynthia Hardee took everything
Johnny Bryant had earned or saved or worked for for 40 years.
And if we don’t protect the weakest amongst our citizens, why do
we have a system. People say why don’t they do something. You
are now the they. And we appreciate your efforts. We will
appreciate your verdict, whatever it is, but I submit to you the
evidence justifies a guilty verdict on both counts. Thank you.
[Emphasis added.]
Hardee argues that the statements in italics above “violated [her] right to
the presumption of innocence and her right to a fair trial,” are harmful, and
require reversal of her convictions.
Hardee’s initial objection was to the statement, “most people got into
business and partnerships on a handshake,” and not to the statement, “she
misapplied it. It’s contrary to an agreement.” That is, her original objection to
the first statement was that the prosecutor was testifying outside the record.
Because the complaint made on appeal must comport with the complaint made
in the trial court, she has forfeited this error, if any. Heidelberg v. State, 144
S.W.3d 535, 537 (Tex. Crim. App. 2004); Bell v. State, 938 S.W.2d 35, 54
(Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997); Rezac v. State,
782 S.W.2d 869, 870 (Tex. Crim. App. 1990). We overrule this portion of
Hardee’s fourth point.
25
Hardee then objected to the second statement in this section, “I think she
had the whole scheme,” and her objection to this statement was that the
prosecutor was expressing an opinion. However, “the prosecutor may argue
his opinions concerning issues in the case so long as the opinions are based on
the evidence in the record and not as constituting unsworn testimony.” Wolfe
v. State, 917 S.W.2d 270, 281 (Tex. Crim. App. 1996); see also Penry v.
State, 903 S.W.2d 715, 756 (Tex. Crim. App.), cert. denied, 516 U.S. 977
(1995); McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985), cert.
denied, 479 U.S. 871 (1986). With regard to the “whole scheme” statement,
the prosecutor was beginning to express an opinion that was not completed
due to the objection; however, having reviewed the record, we conclude that
the opinion reasonably appears to be based upon evidence contained within it.18
Hence no error occurred in overruling this objection, and we overrule this
portion of Hardee’s fourth point.
The prosecutor’s next comment to which Hardee now objects was to the
effect that Hardee was scamming the jury the same as she scammed Johnny.
18
… That is, testimony about how Hardee used Johnny’s money and
Hardee’s own testimony, in which she alternatively claimed that she had
Johnny’s permission to use the money, that some of the money was a loan to
her, and that Johnny told her she was entitled to half of the money, could allow
the reasonable deduction that Hardee’s plan was to take advantage of Johnny
and to use his money for her own benefit.
26
However, the record reflects that Hardee’s actual objection during closing
arguments was that the prosecutor was testifying outside the record again,
complaining that there was no evidence that Hardee ever sold cars. Therefore,
we overrule this portion of Hardee’s fourth point because her complaint on
appeal fails to comport with the error complained of at trial. Heidelberg, 144
S.W.3d at 537; Bell, 938 S.W.2d at 54; Rezac, 782 S.W.2d at 870.
The final statement to which Hardee objects was to the effect that she
had formed an intent to misapply the money and had done so contrary to the
agreement between her and Johnny. However, the only objection that might
apply to this statement would be the running objection to opinion testimony or
testimony outside of the record that defense counsel secured earlier in the
prosecutor’s argument. Because this statement clearly is a reasonable
deduction from the evidence as seen through the eyes of the State and does
not constitute the improper injection of a personal opinion or testimony outside
of the record, assuming that Hardee preserved this error, we overrule the
remainder of her fourth point.
C. Punishment Phase Objections
1. Point 7: Restitution
In Hardee’s seventh point, she complains that the trial court erred by
overruling her objection to a portion of the State’s closing argument regarding
27
Hardee’s ability to pay back Johnny’s losses by injecting harmful, unsworn
testimony.
Although Hardee argues that the statement regarding whether she could
pay Johnny back is “purely speculative,” the issue was raised during the
punishment trial. During the punishment phase, Hardee’s counsel asked
witnesses: “Do you think that resources of the County would be better spent
helping her to get her life back together and pay restitution[?]” and “Do you
think she could live up to and do the conditions of probation, report, pay a fee
each month, pay restitution . . . [?]” [Emphasis added.] During closing
arguments, he told the jury that “[it] could . . . ameliorate some of that
punishment by recommending probation, doing certain things, whatever
condition the Judge wants to put on her, including pay restitution . . . ”; that
the court could set out a restitution plan; and that they should “[t]hink about
the restitution [Johnny] can get from her.” [Emphasis added.]
During closing arguments, the State responded to the foregoing by telling
the jury:
He said, well we can have a restitution plan, and we can maybe
pay back. How much has been paid back in five years? 280
bucks. You’ve heard them say she’s on disability. She can’t work.
What are the chances realistically, folks, of Johnny Bryant ever
getting paid back by Cynthia Hardee? I say they come under the
heading of slim and none.
28
The jury had previously heard evidence that Hardee was unable to work
because of a disability, that Johnny’s money had partly been used to pay her
bills, that she was constantly behind on her bills including at the time of trial,
that she had returned a few items that could be sold and had refused to return
other items, and that it was Hardee’s husband who had given Johnny’s sister
$280. Therefore, the State’s argument was permissible as a reasonable
deduction from the evidence, i.e., that Hardee would be unable to repay any
significant restitution, and as an answer to the argument of opposing counsel.
See Felder, 848 S.W.2d at 94–95. We overrule Hardee’s seventh point.
2. Point 3: Community Expectations
In Hardee’s third point of error, she complains that the trial court erred by
overruling her objection to the italicized portion of the following exchange:
[PROSECUTOR]: . . . . But my question is, where does the
conduct of a person who steals everything a mentally challenged
person has and has ever accrued in a savings plan fall on that range
of punishment [between stealing $75,000 from a large company
such as General Motors, which might not notice it in its bottom
line, and a “mom-and-pop” pizza place that could significantly
impact its ability to do business]? I submit to you a fair
consideration of those facts would indicate that it’s obviously at
the upper end. And here again, not because it’s [Hardee]. It could
be anybody else. And we don’t want this to happen again. We
want people to read in the media. We want people to hear about
it on television. We want people to know.
29
[DEFENSE]: Objection. This is not a proper plea for law
enforcement and arguing that they should consider community
standards or actions or what’s in the paper, Your Honor.
THE COURT: Overruled.
[DEFENSE]: That’s improper. May I have a continuing objection on
that?
THE COURT: Granted. [Emphasis added.]
Hardee argues that the State’s comments “constituted an improper plea
for law enforcement because the jurors were asked to consider community
standards when assessing punishment” and that the “extremely prejudicial
nature of this type of argument” requires our reversal of the jury verdict.
Hardee asserts and the State acknowledges that it is improper for the
State to argue “that the community or any particular segment of the community
expects or demands either a guilty verdict or a particular punishment.” Borjan
v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990). Put another way, “a jury
argument referring to the expectations or demands of the community for a
particular result constitutes reversible error . . . .” Bothwell v. State, 500
S.W.2d 128, 130 (Tex. Crim. App. 1973). In Cortez v. State, the court of
criminal appeals gives numerous examples of improper jury argument based on
community expectations and sums up the impropriety as follows: “[These]
above arguments have been disapproved by this Court because the effect of the
30
language used was to ask the jury to convict or punish the defendant upon
public sentiment or desire rather than upon the evidence that the jury had
received.” 19 683 S.W.2d 419, 421 (Tex. Crim. App. 1984). The impropriety
is not in asking the jury to be the voice of the community but in asking the jury
to lend its ear to the community. Id. This impropriety is also distinguishable
from proper pleas for law enforcement, including the relationship between the
jury’s verdict and the deterrence of crime in general. Borjan, 787 S.W.2d at
55.
The prosecutor’s argument in this case, basically that the State wanted
the community to hear about this verdict so that this behavior would not occur
again, is not an argument calling upon the jury for a punishment because the
19
… These examples include:
The people of De Soto are asking the jury to convict this defendant.
The people of this community expect you to put this man
away . . . . I tell you, the people of Matagorda and Jackson
counties are expecting you to do your duty in this case and assess
the defendant’s punishment at death. . . . Look at this
courtroom—it is crowded with Polk County people, demanding the
death penalty . . . . The people are present in this courtroom to
see that this defendant gets punished . . . . The will and wish of
every law abiding citizen of Commanche County wants a verdict of
death . . . . The people of Nueces County expect you to put this
man away . . . . The jury ought to convict the defendant because
the people of Denison desire it.
Cortez, 683 S.W.2d at 421 (citations omitted).
31
community demands it. It is closer to asking the jury to be the voice of the
community, rather than asking it to lend its ear, or to a proper plea for law
enforcement. Therefore, we hold that the trial court did not err by overruling
Hardee’s objection, and we overrule her third point.
V. Conclusion
Having overruled all of Hardee’s points, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 18, 2009
32