In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00163-CR
______________________________
DEMETRICK CORTEZ CHRISTIAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 36,010-A
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
O P I N I O N
Demetrick Cortez Christian (1) appeals from the denial of a motion to quash an indictment alleging he committed murder in the course of delivering a controlled substance. Section 1.03 of the Texas Penal Code states that Titles 1 through 3 of the Code apply to offenses defined by other laws. Tex. Penal Code Ann. § 1.03 (Vernon 2003). In his sole argument on appeal, Christian contends this Section impliedly bars the use of a violation of a drug offense in the Texas Health and Safety Code as the felony required to prove an element of murder. See Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 2003) (commonly called felony murder). We disagree and affirm the trial court's decision denying the motion to quash.
I. FACTUAL AND PROCEDURAL HISTORY
A. A Drug Deal Gone Bad
Christian admitted to brokering a crack cocaine deal between dealer Brandon Mayfield and Pedro Santos. He brought the dealer to Santos' house to complete delivery of the crack cocaine. According to Christian, Santos' girlfriend, Mary Colbert, opened the door and invited the men inside. Colbert testified she was walking out of the front door on her way to work when two men wearing bandannas over their faces came up behind her with a gun and told her to step back inside. (2)
According to Christian, Santos refused to pay after Mayfield delivered the crack cocaine. This led Mayfield to beat Santos over the head several times with a Glock 40, while Christian held a gun to Colbert's side to keep her at bay. During the bloody beating, which resulted in a "pool of blood" cumulating on the bathroom floor, the gun fell to the ground. Mayfield picked the gun up and cocked it. Fearing for his life, Santos struggled with Mayfield for control of the gun. Amidst the melee, Mayfield was shot, and he promptly fled Santos' home with Christian in tow.
Several Longview police officers were dispatched to the scene. They observed Santos standing on his porch in a pool of blood with a blood-soaked towel on his head. Although Santos was quickly transported to the emergency room, his brain hemorrhaged and he died as a result of the blunt-force injury.
B. Procedural History
Christian was indicted under several counts and convicted only on the charge that he:
did then and there intentionally or knowingly commit or attempt to commit an act clearly dangerous to human life, to-wit: beat Pedro Santos with a firearm, that caused the death of Pedro Santos, and the defendant was then and there in the course of intentionally or knowingly committing a felony, to-wit: delivery of a controlled substance, and the death of Pedro Santos was caused while the defendant was in the course of and in furtherance of the commission or attempt of said felony.
Christian filed a motion to quash this indictment, alleging that this paragraph was "defective in that it fail[ed] to state an offense under the penal code in that Title 5 of the Penal Code do[es] not apply to the Controlled Substances Act." The trial court held a hearing in which Christian's counsel referred to Section 1.03 of the Texas Penal Code and argued "the only three sections of the Penal Code that incorporate other law that create felonies are in Titles 1, 2, and 3." The motion to quash was denied, and Christian was sentenced to twenty-five years' incarceration and a $5,000.00 fine. (3)
II. ANALYSIS
Since the sufficiency of a charging instrument presents a question of law, we review de novo a trial court's decision denying a motion to quash an indictment. State v. Barbernell, 257 S.W.3d 248, 251-52 (Tex. Crim. App. 2008); Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007); Tollett v. State, 219 S.W.3d 593, 596 (Tex. App.--Texarkana 2007, pet. ref'd).
The Texas Penal Code states a person commits an offense if he or she:
commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt . . . he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 2003).
Christian alleges the State failed to "state a criminal offense." Although both murder and delivery of a controlled substance are felonies, Christian argues that Texas precedent and the language of Section 1.03 prohibit the application of the Texas Penal Code to the Texas Health and Safety Code. See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003).
The elemental principle of transferred intent is ingrained in the history of our criminal law. Lomax v. State, 233 S.W.3d 302, 304 (Tex. Crim. App. 2007) (deciding that felony murder statute "dispenses with culpable mental state is consistent with the historical purpose of the felony-murder rule, the very essence of which is to make a person guilty of an 'unintentional' murder when he causes another person's death during the commission of some type of a felony"). Thus, in essence, Christian argues intent to deliver cocaine cannot be transferred to satisfy the requirements of Section 19.02, i.e., there is no underlying offense. To aid our determination in this matter, we will begin by interpreting the plain meaning of the felony murder statute.
A. The Plain Meaning of the Felony Murder Statute
If the language of a statute is clear and unambiguous, extrinsic aids and rules of statutory construction are inappropriate, and the statute should be given its common everyday meaning. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008); Rodriguez v. State, 953 S.W.2d 342, 353 (Tex. App.--Austin 1997, pet. ref'd). If a word is clearly and unambiguously defined by the Legislature, the definition is binding on the courts. Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 274 (Tex. 1995). "The provisions of [the Penal Code] shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code." Tex. Penal Code Ann. § 1.05 (Vernon 2003).
Section 19.02(b)(3) of the Texas Penal Code allows the transfer of intent of any person who "commits or attempts to commit a felony, other than manslaughter." Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004). The definition of "felony" is "an offense so designated by law or punishable by death or confinement in a penitentiary." Tex. Penal Code Ann. § 1.07(a)(23) (Vernon Supp. 2008). The Code further defines "law" as including "the constitution or a statute of this state or of the United States." Tex. Penal Code Ann. § 1.07(a)(30) (Vernon Supp. 2008). Since the Health and Safety Code is a Texas law that designates delivery of cocaine as a felony, and this felony is not manslaughter, the plain reading of the statute leads us to conclude delivery of a controlled substance can be used to supply the underlying offense in a felony murder charge.
B. Canons of Construction
One familiar canon firmly grounded in Texas jurisprudence is the rule of expressio unius est exclusio alterius, (4) reasoning that a statute's inclusion of a specific limitation excludes all other limitations of that type. United Servs. Auto Ass'n v. Brite, 215 S.W.3d 400, 403 (Tex. 2007); State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238, 241 (1943); Rodriguez, 953 S.W.2d at 354 (citing Guinn v. State, 696 S.W.2d 436, 438 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd)). Here, the felony murder statute exempts only manslaughter as an underlying offense. Application of expressio unius est exclusio alterius suggests that all other felonies can serve as an underlying offense.
Another canon of construction mandates the presumption that the Legislature knew of prior court decisions before enacting or amending a statute. Cases decided before the amendments made to the felony murder statute in 1994, and wherein petitions for discretionary review were refused by the Texas Court of Criminal Appeals, specifically included the application of extra-penal offenses to the felony murder rule. Nevarez v. State, 847 S.W.2d 637, 641, 648 (Tex. App.--El Paso 1993, pet. ref'd) (affirming denial of motion to quash a felony murder indictment with possession of marihuana as underlying offense); Bryant v. State, 793 S.W.2d 59, 60 (Tex. App.--Austin 1990, pet. ref'd) (upholding conviction based on felony murder indictment with possession of marihuana as underlying offense); Stanford v. State, No. 01-87-00899-CR, 1988 WL 113997, at *1-3 (Tex. App.--Houston [1st Dist.] Oct. 27, 1988, pet. ref'd) (mem. op., not designated for publication) (upholding trial court's denial of defendant's motion to quash indictment based on argument that possession and delivery of cocaine could not supply mens rea for felony murder statute). Thus, the Legislature was presumed to know Texas courts were approving the use of offenses in the Texas Health and Safety Code to supply the felony required in the felony murder statute, but did nothing in subsequent amendments which would exhibit disagreement with these holdings. See Davis v. State, Nos. 05-98-02108-CR, 05-98-02109-CR, 2000 WL 768632, at *4 (Tex. App.--Dallas June 15, 2000, pet. ref'd) (mem. op., not designated for publication) (discussing application of felony murder statute to drug sale).
C. Christian's Cited Cases Are Distinguishable
Despite our holding that the plain meaning of the felony murder statute is dispositive of Christian's point of error, we must address the three cases forming the majority of his argument. In each of these cases, the defendant was charged with attempting or conspiring to commit an offense not found in the Texas Penal Code.
The first case is Moore v. State, 545 S.W.2d 140 (Tex. Crim. App. 1976). In Moore, an appeal was taken from a conviction of attempt to obtain a controlled substance through fraud. Id. at 141. Moore did not violate the Controlled Substances Act in the Texas Health and Safety Code on which the indictment was based because the statute required actual possession of the substance. In order to circumvent this obvious deficiency, the State argued that the Legislature intended for the general criminal attempt provision enumerated in Title 4 of the Texas Penal Code to apply to violations of the Controlled Substances Act. Id. Reasoning that Section 1.03(b) of the Texas Penal Code specifically stated only "Titles 1, 2, and 3 of this code apply to offenses defined by other laws," and aptly noting there was no law that prohibited attempted possession, the Texas Court of Criminal Appeals concluded that the attempt provision in Title 4 of the Penal Code was not meant to combine with the Health and Safety Code to create a new offense. Id. at 142. The court held the indictment did not allege an offense and, therefore, the conviction was void. Id.
This ruling was affirmed in Baker v. State, decided the following year. 547 S.W.2d 627 (Tex. Crim. App. 1977). Baker was charged with conspiracy to sell marihuana. Id. at 628. Once again, the Controlled Substances Act under which Baker was charged required an intentional or knowing delivery of marihuana. Id. The State argued that the Texas Penal Code's general criminal conspiracy statute contained in Title 4 could latch onto the Controlled Substances Act to create a new offense--the conspiracy to sell marihuana. Id. at 629. The court rejected the State's argument, employing the same reasoning as in Moore, and held the criminal conspiracy statute did not apply to the Controlled Substances Act. Id. Consequently, the Texas Court of Criminal Appeals found the underlying conviction was void because the charging instrument did not allege an offense against the laws of the state. Id.
The last case addressed by Christian was State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007). John Colyandro, James Ellis, and Tom Delay were charged with conspiracy to violate certain provisions of the Texas Election Code, including conspiracy to make an unlawful political contribution. Id. None of the provisions of the Texas Election Code with which they were charged made mere conspiracy to violate the Code an offense. As in Baker, the State argued that the general criminal conspiracy statute could tag onto the Texas Election Code to create a new violation. Id. The Texas Court of Criminal Appeals granted review on the State's allegation that the lower court erred in holding that "the criminal conspiracy provisions of section 15.02 of the Texas Penal Code did not apply to the felony offense of making an illegal contribution under the Texas Election Code." Id. at 874.
In Colyandro, the majority reaffirmed and relied on Baker and Moore, which they stated "yielded broad implicit holdings--that the inchoate offenses contained in Title 4 do not apply to offenses defined outside the Penal Code." (5) In other words, the court was bound by the principle of stare decisis and held the conspiracy statute could not apply to the Election Code to create a new offense. Id. at 874-76, 884. The majority also noted that, after Baker and Moore were decided, the Legislature amended many, but not all, extra-penal code provisions to specifically include conspiracy. Based on the rationale that the Legislature had ratified its decision in Baker and Moore, the court determined not to globally apply conspiracy to extra-penal code offenses. Id. at 878. The court upheld the trial court's finding that the indictment failed to allege an offense and its quashing of the "Election Code-based conspiracy charges." Id. at 885. (6)
In contrast with these three cases, Christian was charged with a violation of the Penal Code: murder. Murder is committed if a person:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt , or in immediate flight from the commission or attempt he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
Tex. Penal Code Ann. § 19.02.
The three methods of committing murder set forth in the statute are different manner and means of committing the same offense, not distinct and separate offenses. Gandy v. State, 222 S.W.3d 525, 529 (Tex. App.--Houston [14th Dist.] 2007, pet. ref'd) (citing Aguirre v. State, 732 S.W.2d 320, 325-26 (Tex. Crim. App. 1982) (holding that, where indictment contained two paragraphs, the first alleging murder under Section 19.02(b)(1) and the second alleging murder under Section 19.02(b)(3), the allegations were merely two different manner and means of committing the same offense)).
Christian was convicted for committing the offense of murder by the third manner and means authorized by the statute, usually referred to as the felony murder rule. Therefore, to convict Christian of murder by this manner and means, the State had to present evidence that he committed a felony. This indictment did not authorize a conviction for an offense that did not exist in law, but merely delineated the proof necessary to meet the statute's requirements for this particular manner and means of committing murder. In Baker, Moore, and Colyandro, each of the offenses were created and defined by incorporating provisions from Title 4 (not 1, 2, or 3) of the Penal Code into violations of the law found outside the Penal Code. Here, the offense is promulgated in a well-established provision of the Texas Penal Code, which simply sets forth the methods for proving the statute was violated. We find these cases are distinguishable.
The holding of Colyandro, which is binding precedent, is that "the inchoate offenses contained in Title 4 do not apply to offenses defined outside the Penal Code." Colyandro, 233 S.W.3d at 874-75. However, in dictum (7) the Texas Court of Criminal Appeals also stated that the Texas Penal Code "directs the export of the provisions contained only in Titles 1, 2, and 3" and "contemporaneously bars the import of extra-penal offenses to offenses in Titles 4 through 11 of the Penal Code." Id. at 884. The dissent pointed out the difficulty of this dictum.
We need not apply this dictum to our case. The Moore, Baker and Colyandro opinions all dealt with fact situations that clearly did not amount to offenses under the extra-penal code sections with which those defendants were charged. In other words, there was no such crime as conspiracy or attempt to violate the Texas Health and Safety Code or the Texas Election Code. In those cases, the State could only survive a motion to quash if it could somehow attach an attempt or conspiracy provision to a statute outside the Texas Penal Code. Basically, the courts had to deal with the issue of whether a creative indictment could create a new offense for which the Legislature did not provide.
Here, the felony offense of murder, contained in the Penal Code, was charged by the indictment. The manner and means of proving this form of murder was by the commission of a felony. This felony offense supplied the intent for felony murder as has historically been understood and applied in this State. No new offense was created in the indictment and no absurd result bars the application of the plain meaning of the statute. For this reaon, we need not venture into Colyandro's dictum. Moreover, we do not think that Colyandro, in its limited ruling, intended to overturn Texas felony murder jurisprudence as commonly understood in the courts of this State.
III. CONCLUSION
We affirm the trial court's judgment denying Christian's motion to quash the indictment.
Jack Carter
Justice
Date Submitted: April 2, 2009
Date Decided: April 24, 2009
Publish
1. The indictment and pleadings in his first trial (ending in mistrial) refer to Demetrick Christian, while all the pleadings in the second trial before us refer to Demectrick Christian.
2. Colbert's version of the story is corroborated by Christian's and Santos' employer, Troy
Morgan.
3. 4. 5. Before enactment of the Texas Penal Code, criminal statutes were scattered throughout
Texas jurisprudence. When the Texas Penal Code was enacted, Titles 1 through 3, which involved
general provisions and principles of criminal responsibility and punishments, were expressly applied
to extra-penal offenses through Section 1.03 as a general framework for all criminal statutes.
6. 7. Dicta is language in an opinion that is unnecessary to the disposition of the case. State v.
Brabson, 976 S.W.2d 182, 186 (Tex. Crim. App. 1998). This Court is duty bound to accept the
guidance of decisions of the Texas Court of Criminal Appeals (even though they are five-four
decisions) unless the language of the decision in question is only dicta and not a part of the ratio
decidendi. Dunkins v. State, 838 S.W.2d 898, 900 n.1 (Tex. App.--Texarkana 1992, pet. ref'd).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00122-CR
______________________________
VANESSA RENEE WREYFORD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Smith County, Texas
Trial Court No. 002-83290-09
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
In a jury trial, in contesting mainly whether Vanessa Renee Wreyford was intoxicated at the time she drove along a public thoroughfare in Smith County,[1] the attorneys got a little testy. In the process, Jacob Putman, Assistant District Attorney, improperly characterized Wreyfords counsel as having lied to the jury and, at a different time, as a snake oil salesman.
Wreyford appeals from her conviction for driving while intoxicated (DWI) and her sentence of ninety days confinement in the Smith County jail. Wreyford alleges that the evidence is legally insufficient[2] to support her conviction and that the trial court erred in overruling objections to the States statements concerning her attorney. Although we condemn the above statements of Putman verbally abusing Wreyfords attorney, we affirm the trial courts judgment, because (1) sufficient evidence supports Wreyfords DWI conviction, and (2) no reversible error appears concerning the States statements.
(1) Sufficient Evidence Supports Wreyfords DWI Conviction
In evaluating Wreyfords legal sufficiency challenge, we review all of the evidence in the light most favorable to the jurys verdict to determine whether any rational jury could have found the essential elements of DWI beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.Texarkana 2010, pet. refd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). During our examination, we give deference to the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 31819).
Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008); Vega v. State, 267 S.W.3d 912, 916 (Tex. Crim. App. 2008). Under a hypothetically correct jury charge, Wreyford committed the offense of DWI if (1) she (2) operated (3) a motor vehicle (4) in a public place (5) while intoxicated. Tex. Penal Code Ann. § 49.04 (Vernon 2003). Intoxicated, the crux of Wreyfords complaint, means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
Tex. Penal Code Ann. § 49.01(2) (Vernon 2003).
Trooper Trevor Phillips was patrolling the highway at 11:00 p.m. when he noticed Wreyfords vehicle was without a front license plate and with a defective license plate light on the very back. He testified she was driving 40 to 45 miles an hour in a 65-mile-per-hour zone. Phillips initiated [his] emergency lights and claimed Wreyford was slow to respond. After initial contact, Wreyford was able to retrieve her license and insurance without difficulty. Yet, because Phillips detected a strong odor of an alcoholic beverage coming from the interior of the vehicle, he asked her to exit the vehicle and determined that the smell of alcohol was coming from her breath and person. Wreyford told Phillips she had one to one and a half beers.
Phillips noticed she wasnt walking a straight line as she walked towards the front portion of [his] vehicle, and decided to administer a series of field sobriety tests. According to Phillips, Wreyford exhibited six out of six clues during the horizontal gaze nystagmus test, including a pronounced lack of smooth pursuit in both eyes. Noting the NHTSA statement that a display of four or more clues indicates a high probability of intoxication, Phillips moved to the walk and turn test. He testified Wreyford failed this test because she couldnt balance during instruction; she also started too soon; she missed heel to toe; she stepped off line; and she turned improperly. Phillips also claimed Wreyford swayed while balancing, . . . put her foot down and . . . used her arms for balance during the one-leg-stand test. Wreyford passed the fourth finger count observation test.
After administering these tests, Phillips concluded with 100 percent assurance that Wreyford was intoxicated. Wreyford refused to provide any type of breath sample. In transit to the jail following her arrest, Wreyford told Phillips she believed she [was] a little intoxicated but didnt deserve to go to jail. Wreyford reportedly used profanity and then began to fall asleep.
After hearing Phillips testimony and watching a video recording of the arrest, the jury found Wreyford guilty. Viewing all of the evidence in a light most favorable to the jury that found Phillips testimony credible, we conclude that a rational jury could find beyond a reasonable doubt that Wreyford did not have the normal use of her physical faculties by reason of the introduction of alcohol. The evidence is legally sufficient to support the jurys verdict.
(2) No Reversible Error Appears Concerning the States Statements
Permissible jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000). Argument that strikes at a defendant over the shoulders of defense counsel is improper. Wilson v. State, 7 S.W.3d 136, 14647 (Tex. Crim. App. 1999); Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). A prosecutor risks 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 counsels character. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Such argument has been repeatedly condemned. Gomez v. State, 704 S.W.2d 770 (Tex. Crim. App. 1985); Fuentes v. State, 664 S.W.2d 333 (Tex. Crim. App. 1984).
Even when an argument exceeds the permissible bounds of these approved areas, it will not be reversible unless the argument is extreme or manifestly improper, violates a mandatory statute, or injects into the trial new facts harmful to the accused. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (citing Todd v. State, 598 S.W.2d 286, 29697 (Tex. Crim. App. 1980)). The prosecutors remarks must have been a willful and calculated effort to deprive a defendant of a fair and impartial trial. Id. (citing Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)). In most instances, the courts instruction to disregard the remarks will cure the error. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994); Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992).
During jury argument at the guilt/innocence phase, Erick Platten, Wreyfords attorney, referred to Phillips and argued:
The evidence as you heard it from this stand. Thats what weve got. You just dont show up and start slinging stuff all over the place and see whats going to catch. Well, Im trained in field sobriety testing, and Ive pulled over so many people and this, that and everything else. I am not saying hes a bad guy or anything like that. He is doing his job. Doing a job that the billboards throughout this state say. You drink. You drive. You go to jail. I am not endorsing alcohol and drunk driving, like I said, but what yall saw was someone that was not driving while intoxicated.
The following exchange occurred during the subsequent argument by Assistant District Attorney Putman:
MR. PUTMAN: The walk and turn test. You need two clues to be intoxicated. She had five clues. Now, understandably, you couldnt see them on the video. She misses heel to toe and steps off line. You couldnt see it because the hood of the car was in the way. There is nothing we can do about that. But the trooper was there, and he told you. Trooper Phillips has no reason to lie to you. And make no mistake, Mr. Platten flat out called him a liar. He said, I dont think hes a bad guy. I think he was doing his job. But thats not all he said. He said
MR. PLATTEN: Objection. Striking at the defendant over the shoulder of the attorney, Your Honor.
MR. PUTMAN: Judge, I cant help it if Mr. Platten lied to the jury.
MR. PLATTEN: I did not lie to the jury.
THE COURT: Number one, Mr. Platten, your objection is denied. Number two, your sidebar comment to Mr. Platten just then, Jurors, disregard that. Make your argument to the jury.
At the time of Plattens objection, Putman was, initially, not attacking Platten personally, but was responding to Plattens suggestion that Officer Phillips testimony should not be believed. An answer to the argument of opposing counsel challenging the credibility of a witness is proper fodder for jury argument. See Waites v. State, No. 06-09-00096-CR, 2010 WL 2477783, at *3 (Tex. App.Texarkana June 18, 2010, no pet.) (mem. op., not designated for publication); Blue v. State, No. 14-09-00184-CR, 2010 WL 1655485, at *7 (Tex. App.Houston [14th Dist.] Apr. 27, 2010, no pet.) (mem. op., not designated for publication);[3] Mijores v. State, 11 S.W.3d 253, 256 (Tex. App.Houston [14th Dist.] 1999, no pet.); Giesburg v. State, 945 S.W.2d 120, 126 (Tex. App.Houston [1st Dist.] 1996), affd, 984 S.W.2d 245 (Tex. Crim. App. 1998).
In direct and immediate response to Plattens objection, however, Putman personally and explicitly impugned Plattens character by claiming Platten lied to the jury. Clearly, this was improper.
Both the Texas Supreme Court and the Texas Court of Criminal Appeals have adopted The Texas Lawyers CreedA Mandate for Professionalism in an attempt to eliminate such abusive practices by lawyers. Such abusive practices do a disservice to citizens and demean the legal profession. That Creed mandates that a lawyer will not attribute bad motives or unethical conduct to opposing counsel or make disparaging personal remarks . . . towards opposing counsel. . . . The Texas Lawyers Creed-A Mandate for Professionalism III (10) (adopted by the Supreme Court of Texas and The Texas Court of Criminal Appeals Nov. 7, 1989), reprinted in Texas Rules of Court 80405 (West 2010).
We often hear disparaging comments about lawyers, judges, and the legal system at large. Putmans conduct here encourages and, in part, validates those who would attack our justice system. If those of us in the legal system expect citizens to respect the system and the rule of law, judges and lawyers must act in a professional and respectful manner. In exercising their vital role of advocates in our system, lawyers must behave professionally and ethically. Instead of inculcating public confidence in our legal system, Putmans statements lacked that professionalism and embarrassed the system.
Platten did not, however, object to Putmans accusing him of lying; he simply denied the accusation. Though the statement that Platten lied to the jury constituted a strike at a defendant over the shoulders of defense counsel, the issue is not before us as a ground for reversal. Also, the trial court recognized the improper character of Putmans statement and directed the jury to disregard it. See Tex. R. App. P. 33.1; Mijores, 11 S.W.3d at 256.[4] This improper statement was not preserved for our review, and the trial court provided Wreyford all she could have reasonably asked for, the instruction that the jury disregard it.
Wreyford also argues the trial court erred in failing to sustain objections to Putmans argument during the punishment phase. To place the argument into context, we review the record during Plattens closing argument in the guilt/innocence phase. In closing argument, Platten stated:
[PLATTEN:] I hope I wasnt putting you to sleep when I was asking these questions because that was not my intention. I had to be as thorough as possible about some of these things. Because thats my job. My job is not to stand up here and be a snake oil salesman and try to make something that its not. Thats not what Im doing.
At punishment, the following record was made:
MR. PUTMAN: Mr. Platten told you he wasnt a snake oil salesman. Remember his closing argument?
MR. PLATTEN: Objection to striking at the defendant over the shoulder of the attorney.
THE COURT: Denied.
MR. PUTMAN: Thats exactly what he said is he wasnt a snake oil salesman. I disagree. She got up here and said
MR. PLATTEN: Objection for name calling.
THE COURT: Denied.
MR. PUTMAN: She got up here and told you her family is sick. She has responsibilities. Please dont punish me.
(Emphasis added.)
The objection for name calling was an objection to striking at the defendant over the shoulder of the attorney. Tex. R. App. P. 33.1(a)(1)(A). The objection was made in response to another personal attack on Plattenthat he was a snake oil salesman. This remark, too, was improper.[5] Wilson, 7 S.W.3d at 147; Mosley, 983 S.W.2d at 259 (argument suggesting counsel wanted to divert jury from truth was assumed inappropriate). The trial court should have sustained that objection. But, we do not believe that error was reversible.
Because comments striking at the defendant over the shoulder of counsel have never been held to amount to a constitutional violation, but instead constitute other errors within the purview of Rule 44.2(b), we must follow the rule that [a]ny other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. Mosley, 983 S.W.2d at 259; see Tex. R. App. P. 44.2(b); George v. State, 117 S.W.3d 285, 289 (Tex. App.Texarkana 2003, pet. refd). In making this determination, we weigh the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutors remarks), any measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley, 983 S.W.2d at 25960; Hawkins v. State, 135 S.W.3d 72, 7576 (Tex. Crim. App. 2004).
In Mosley, the prosecutors jury argument contained a rather specific claim that defense counsel was attempting to divert the jury from the truth:
There is only one route to the truth. It is by traveling on the main road. That will take you to your proper destination. But you must stay on the main road. The defense has attempted to get you off the main road, to divert you. They dont want you to stay on the main road because they know where that will take you. . . . They want you to take a side road, a series of side roads, rabbit trails, and a rabbit trail that will lead you to a dead-end. The truth is not there.
Mosley, 983 S.W.2d at 258. Mosley referred to federal caselaw[6] in deciding these comments were mildly inappropriate, did not directly accuse the defense attorneys of lying, did not suggest that any evidence was manufactured, and did not inject new facts into evidence. Id. at 260. The appellate court stated, At most, the comments indicate that the defense may be attempting to distort the jurys view of the evidence through clever argument. Id. While it did not condone the prosecutors actions, the court found the severity of the misconduct small. Id.
Here, while we condemn Putmans accusation and there were no measures taken to ameliorate it, the evidence of Wreyfords intoxication, the main contested fact issue, is pretty strong. We conclude that the conduct had no or little effect. See id. at 25960. We hold that there is no reversible error here.
We affirm the trial courts judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: February 9, 2011
Date Decided: February 16, 2011
Do Not Publish
[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Govt Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[2]Wreyford also argues the evidence was factually insufficient to support her conviction. Recently, a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review established by Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court applies in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Id. Therefore, we will not address the challenge to the factual sufficiency of the evidence.
[3]Although these unpublished cases have no precedential value, we may take guidance from them as an aid in developing reasoning that may be employed. Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.Amarillo 2003, pet. refd).
[4]Even if Wreyford had objected to the comment that Platten lied to the jury, she failed to preserve error by failing to request a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993) (to preserve jury argument error for appellate review, defendant must (1) object, (2) request an instruction to disregard, and (3) move for mistrial).
[5]Our previous comments, in condemnation of Putmans liar accusation, apply here as well.
[6]Mosley cited to the following cases in support of its holding: United States v. Millar, 79 F.3d 338, 34344 (2nd Cir. 1996) (comments that defense of case was hog wash, that defense counsel had created smoke screen, and trying to confuse jury and lead them astray clearly did not rise to the level of severity to require reversal); United States v. Palmer, 37 F.3d 1080, 1086 (5th Cir. 1994) (comment that defense attorney wanted to confuse jury and throw up a smoke screen did not require reversal); United States v. Ortiz-Arrigoitia, 996 F.2d 436, 440 (1st Cir. 1993) (prosecutors statements to jury that defense attorneys want like to scramble your heads, confuse you and wanted to confuse your head not so prejudicial to require reversal).