State v. Ronald Herndon

NUMBER 13-02-518-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS, Appellant,

v.

RONALD HERNDON, Appellee.

On appeal from County Court at Law No. 4

of Nueces County, Texas

DISSENTING MEMORANDUM OPINION ON REMAND

Before Justices Yañez, Rodriguez, and Wittig ⁽¹⁾

Dissenting Memorandum Opinion by Justice Wittig

I respectfully dissent. In our previous opinion, we relied upon Valle v. State in holding that error was not preserved for appellate review when a defendant did not object to the court reporter's failure to record a bench conference. ⁽²⁾ See Valle v. State, 109 S.W.3d. 500, 508-09 (Tex. Crim. App. 2003) (holding that in order to preserve error, defendant must still object to court reporter's failure to record bench conferences). Because the record below indicated appellee Herndon did not object to the reporter's failure to record the bench conference in question, we held he had not preserved error. See State v. Herndon, 115 S.W.3d 231, 234 (Tex. App.-Corpus Christi 2003), rev'd, 215 S.W.3d 901 (Tex. Crim. App. 2007). The Texas Court of Criminal Appeals reversed, holding we erred because Herndon "did not need to preserve any error for appeal because he was the prevailing party in the trial court." State v. Herndon, 215 S.W.3d 901, 911 (Tex. Crim. App. 2007). On remand, we are to consider the substantive merits of the State's appeal. I would reverse and vacate the order granting a new trial.

The State complained that the trial court erred in granting a new trial. Appellee based his motion for new trial on two grounds. The first concerned comments by the prosecutor made in closing arguments. The second ground was the failure of the court reporter to record a bench conference. I will address the latter issue first.

1. Standard of Review

Unlike cases in which a trial judge grants a new trial "in the interest of justice," in this case, the trial court expressly signed a written order specifying his holding. ⁽³⁾ The trial court's written order stated that a new trial was granted "on the ground that a bench conference was not recorded during the trial." The perennial language concerning the "interest of justice" is nowhere to be found in the order. ⁽⁴⁾ While other arguments were made, the record unequivocally shows the trial court's concern with appellee's argument concerning the lack of a reporter's record of the bench conference. The appellee specifically mentioned and argued the Palmer v. Espey Huston case, and the trial court alluded that he would read it and rule the following week. See Palmer v. Espey Huston & Associates, Inc., 84 S.W.3d 345, 351 (Tex. App.-Corpus Christi 2002, pet. denied).

In the Palmer case, we observed that we may not reverse a case unless the error complained of probably caused the rendition of an improper judgment or prevented an appellant from properly presenting the case to the appellate court. Id.; see Tex. R. App. P. 44.1. As in Palmer, Herndon asserted no actual consequences to the trial court from the failure of the court reporter to record a bench conference. Nor does the record demonstrate that this error probably caused rendition of an improper judgment. The failure of the court reporter to record the single bench conference (compared to four bench conferences in Palmer) did not prevent appellee from properly presenting his case to the trial or appellate court. See Palmer, 84 S.W.3d at 351.

The grounds for which a trial court must grant a new trial are listed in the appellate rules. See Tex. R. App. P. 21.3. None of these requirements are met. However, the trial court may also grant a new trial on other legal grounds. Herndon, 215 S.W.3d at 908. Any error of sufficient magnitude to require reversal on appeal is adequate for granting a new trial. Id. Nevertheless, the trial court does not have authority to grant a new trial unless the proceeding was not in accordance with law. Id. Review of the granting of a new trial is by an abuse of discretion standard. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995) ("It is well established that the granting or denying of a motion for new trial lies within the discretion of the trial court.") (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993)). An appellate court may not substitute its judgment for that of the trial court, but rather should decide whether the trial court's decision was arbitrary or unreasonable. Gonzalez, 855 S.W.2d at 695 n.4. On the other hand, to grant a new trial for other than a valid legal reason is an abuse of discretion. Herndon, 215 S.W.3d at 907.

While refusing to set out bright-line rules for appellate review of a trial court's discretion in granting a new trial, the Herndon court opines that a trial court would not generally abuse its discretion in granting a new trial if the defendant: (1) articulates a valid legal claim; (2) produces evidence or points to evidence in the record to substantiate that claim; and (3) shows prejudice to his substantial rights under the standards of Texas Rule of Appellate Procedure 44.2. ⁽⁵⁾ Herndon, 215 S.W.3d at 909; see Tex. R. App. P. 44.2.

2. Court Reporter's Failure to Record

Here, appellee arguably meets the first two criteria by pointing out the court reporter failed to record a bench conference as required by law. Tex. R. App. P. 11(a); Cf. Valle, 109 S.W.3d at 508-509 ("We need not decide whether the current rule requires court reporters to record all bench conferences whether or not such recording is requested; if required, then it was incumbent upon a party to object if the bench conferences was not recorded."). Appellee substantiated his claim in the record. The court reporter admitted the bench conference in question was not recorded. ⁽⁶⁾ However, the State presents a record that shows that Herndon wholly failed to demonstrate to the trial court how any substantial right of the defendant was prejudiced sufficient to justify the granting of a new trial.

The State argues, and I agree, that the trial court did not follow the legal standard regarding the effect of the court reporter's failure to record the bench conference. A failure to record a bench conference does not automatically result in reversible error. Tanguma v. State, 47 S.W.3d. 663, 667 (Tex. App.-Corpus Christi, 2001, pet. ref'd). As the Texas Court of Criminal Appeals notes, the defendant must show prejudice to his substantial rights under the standards of Texas Rule of Appellate Procedure 44.2. Herndon, 215 S.W.3d at 909. Rule 44.2 delineates constitutional error or error affecting a substantial right. See Tex. R. App. P. 44.2. In his brief, appellee does not even suggest constitutional error, nor is any apparent. ⁽⁷⁾ Assuming error, the pertinent inquiry is what substantive right, if any, was affected? After the unrecorded bench conference, the trial court sustained appellee's objection already made on the record. The jury was instructed to disregard the comments of the prosecutor. In sum, appellee's objection was sustained, and the trial judge granted all relief then requested by appellee. Accordingly, I would conclude that the trial court abused its discretion by granting a new trial based upon the court reporter's failure to record a bench conference because there was no demonstration to the trial court that the error, if any, affected the substantial rights of appellee. Herndon, 215 S.W.3d at 909; Palmer, 84 S.W.3d at 351; see United States v. Haber, 251 F.3d 881, 889-90 (10th Cir. 2001).

3. Prosecutor's Comments

As outlined by the majority, the other possible ground for the new trial, in the interest of justice or otherwise, was this statement by the prosecutor in her closing argument:

This Defendant decided what evidence you're going to consider today, but what's on there is pretty incriminating. It shows this Defendant was intoxicated. Also, keep in mind the Defendant admitted to the officer to drinking that night. He admitted that he had been drinking alcohol. And this Defendant didn't present any evidence of who he was drinking with, he didn't--he didn't bring any other witness forward to testify how many drinks he had that night or, you know, what he was doing that night, how long ago-

Defense counsel objected that the prosecutor commented on appellee's failure to testify. ⁽⁸⁾ The trial court promptly instructed the jury to disregard the remark.

The State argues under Patrick that appellee's motion for new trial on this basis was without merit. See Patrick v. State, 906 S.W.2d 481, 490-91(Tex. Crim. App. 1995). I agree. In order to violate appellant's constitutional or statutory rights, the language, viewed from the jury's perspective, "must be manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify." Id. (citing and quoting Banks v. State, 643 S.W.2d 129, 134-35 (Tex. Crim. App.1982)). An indirect or implied allusion to the accused's failure to testify does not violate appellant's rights. Id. "A remark that calls attention to the absence of evidence which only the defendant could supply will result in reversal; however, if the language can reasonably be construed to refer to appellant's failure to produce evidence other than his own testimony, the comment is not improper." Id. Here, the prosecutor manifestly was referring to the other evidence: "And this Defendant didn't present any evidence of who he was drinking with, he didn't--he didn't bring any other witness forward to testify how many drinks he had that night or, you know, what he was doing that night . . . ."

In opening statement, the defense argued Herndon was shooting pool at the Outback Steakhouse and had been drinking. This raised a reasonable inference that he was not shooting pool alone or drinking alone. To this argument, defense counsel added that he (Herndon) would tell the jury that he was not intoxicated. The appellee also complained about the statement of the prosecutor: "Defendant in this case is showing his irresponsibility in refusing to acknowledge that he was intoxicated while driving." The defendant did not immediately object to this comment . He points out the only evidence in the case came from two police officers.

During his opening statement, defense counsel stated:

My client had been out to dinner at the Outback Steakhouse. He had gone and shot some pool. He was on his way home. He will tell you he had been drinking, like we talked. He will also tell you, and I think the evidence from the officers is also going to help establish, that he was not intoxicated, okay.

(Emphasis added.) There is no error when a prosecutor's argument responds to a defense argument. Nethery v. State, 692 S.W.2d 686, 703 (Tex. Crim. App. 1985); Long v. State, 823 S.W.2d 259, 269 (Tex. Crim. App. 1991)(the State's argument was invited, but even if it could be construed as an uninvited comment, any error was cured by instruction). To preserve a complaint for appellate review, a defendant must make a timely request, objection, or motion that states the ground for the ruling he seeks. See Tex. R. App. P. 33.1(a). Herndon made no objection to the trial court concerning "his irresponsibility." Because appellee did not alert the trial court to the alleged error, he generally cannot later complain of it on appeal. See Hull v. State, 67 S.W.3d 215, 217-18 (Tex. Crim. App. 2002). However, he did not need to preserve error for appeal because appellee was the prevailing party. Herndon, 215 S.W.3d at 907. A comment on an accused's failure to testify may violate the accused's state and federal constitutional privileges against self-incrimination. Montoya v. State, 744 S.W.2d 15, 34 (Tex. Crim. App. 1987) (op. on reh'g); Campbell v. State, 900 S.W.2d 763, 766 (Tex. App.-Waco 1995, no pet.). The prosecutor's remarks should be reviewed by a three-pronged test: 1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004).

Such a comment may also violate article 38.08 of the code of criminal procedure, which prohibits the State from alluding to or commenting on an accused's failure to testify. See Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2002). "The test employed is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused's failure to testify." Caldwell v. State, 818 S.W.2d 790, 800 (Tex. Crim. App. 1991) (quoting Dickinson v. State, 685 S.W.2d 320, 323 (Tex. Crim. App. 1984)). Review of the argument is from the perspective of the jury. Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992); Williams v. State, 946 S.W.2d 886, 903 (Tex. App.-Waco 1997, no pet.). To be offensive, the argument must be more than "an implied or indirect allusion" to the failure of the accused to testify. Swallow, 829 S.W.2d at 225; Williams, 946 S.W.2d at 903. Argument which is reasonably susceptible to two different interpretations, one of which implicates the accused's failure to testify and one which does not, "would not necessarily and naturally be understood by the jury to refer to Appellant's failure to testify." Caldwell, 818 S.W.2d at 800-01.

More recently, the Court of Criminal Appeals addressed this same issue. It held that to violate the right against self-incrimination, the offending language must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007). It is not sufficient that the language might be construed as an implied or indirect allusion. Id. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. Id. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character. Id. (citing Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001)).

Under these standards, I would hold that the prosecutor's language did not amount to a comment concerning the failure of the accused to testify. Patrick , 906 S.W.2d at 490-91. The first statement by the State concerning appellee's irresponsibility for his action, was both invited and not objected to. Argument by the State referring to a defendant's failure to personally express remorse during trial can constitute an improper comment on the defendant's failure to testify. Cooper v. State, 959 S.W.2d 682, 686 (Tex. App.-Austin 1997, pet. ref'd); see also Swallow, 829 S.W.2d at 225-26. Conversely, argument by the State which refers to the failure of a defendant's witnesses to testify about the defendant's remorse does not comment on the defendant's failure to testify, although it may be otherwise improper. Cooper, 959 S.W.2d at 686; Swallow, 829 S.W.2d at 225 n.2.

The record reflects that the prosecutor first mentioned appellee's irresponsibility, then mentioned that the defendant did not leave the jury with much evidence, and finally, mentioned that the defendant did not present any witnesses or other evidence of who he was drinking with. It was at this point that defense counsel objected, requested an instruction to disregard, and the trial judge immediately and specifically instructed the jury that: "The jury is instructed not to regard the failure of the Defendant to testify as it was instructed in the Charge."

The State argues, and I agree, that error, if any, ⁽⁹⁾ associated with an improper comment by the prosecutor may be cured by instruction to disregard. See Long, 823 S.W.2d at 269-70. Viewing the record as a whole, this curative instruction applied to both parts of the sequential argument of the prosecutor. A curative instruction is sufficient unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by such an admonishment. Id. But even if the jury could take either of these arguments as comments on Herndon's failure to testify, the trial court instructed the jury to disregard those statements. Herndon presented no evidence to the trial court to rebut the presumption that the jury followed the court's instruction to disregard the State's comments during closing argument. Michaelwicz v. State, 186 S.W.3d 601, 620 (Tex. App.--Austin 2006, pet. ref'd) ("The jury is presumed to follow the trial court's instruction to disregard unless the comment is so prejudicial or extreme that the instruction was incapable of removing the harm."). I would therefore hold that the trial court's instructions to disregard were effective and cured the prejudicial effect, if any, stemming from the State's comments during closing argument. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Based upon my review of the record, I conclude the prosecutor's comments were not so prejudicial that they could not be cured by the prompt and clear admonition by the trial judge to the jury on the defendant's right not to testify. Long, 823 S.W.2d at 269-70.

In sum, the record brought forth by the State demonstrates that it did not violate Herndon's constitutional or statutory rights by argument that manifestly intended to comment of his failure to testify. Patrick, 906 S.W.2d at 490-91. Even if her comments were an indirect or implied allusion to Herndon's not testifying, such a comment does not violate his rights. Banks, 643 S.W.2d at134-35. Further, because the language can be construed to refer to the lack of evidence, the comment is not improper. Patrick, 906 S.W.2d at 490-91. Herndon invited the comments when his counsel stated: "He will tell you he had been drinking . . . [but] that he was not intoxicated." Nethery, 692 S.W.2d at 703. And finally, any associated error was cured by immediate and competent instruction by the trial court. Long, 823 S.W.2d at 269-70. Thus, the trial court abused its discretion by granting a new trial for other than a valid legal reason. Herndon, 215 S.W.3d at 907.

I would reverse and vacate the order of the trial court granting a new trial. The prior judgment of conviction and sentence should be reinstated.

DON WITTIG,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Dissenting Memorandum Opinion on Remand

delivered and filed this 7th day of February, 2008.

1. Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to section 74.003 of the government code. See Tex. Gov't. Code Ann. § 74.003 (Vernon 2005).

2. State v. Herndon, 115 S.W.3d 231, 234 (Tex. App.-Corpus Christi 2003), rev'd, 215 S.W.3d 901 (Tex. Crim. App. 2007).

3. I would not view the trial court order specifying his holding as a summary, discussion or comment on the evidence. See Tex. R. App. P. 21.8(b), effective prior to January 1, 2007.

4. Nevertheless, both the majority and dissent address this issue. The general rule informs that a ruling by the trial court will be upheld if it is correct on any applicable legal theory. See State v. Herndon, 215 S.W.3d 901, 905 n.4 (Tex. Crim. App. 2007).

5. While the majority notes this standard, I do not discern where the opinion applies this required criteria because it seems to find that the State does not provide an appellate record establishing an abuse of discretion. I would hold that the State has shown that the trial court was in error to grant a new trial under any theory submitted by the defendant as discussed infra.

6. There is a partial non-stenographic tape recording of the bench conference but portions of the recording remain inaudible.

7. This court did a detailed analysis of the types of error that may result from a court reporter's failure to record a bench conference. Tanguma v. State, 47 S.W.3d 663, 677 (Tex. App.-Corpus Christi 2001, pet. ref'd). We held that the failure of the court reporter to record any possible challenges for cause made by a defense counsel, does not rise to the level of constitutional error. Id. There, we also discussed that when non-constitutional error is found, the appellate court must disregard any error that does not affect substantial rights. Id. (citing Tex. R. App. P. 44.2). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Id. (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Id. (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Rios v. State, 982 S.W.2d 558, 561 (Tex. App.-San Antonio 1998, pet. ref'd)).

Here, the failure to record a bench conference was not shown to have any influence on the jury. Appellee received all relief he requested. The State and the record demonstrate there was no adverse or injurious affect caused by the court reporter's failure to record the bench conference. Because no substantial rights were affected, any error must be disregarded. Mitten v. State, 228 S.W.3d 693, 694 (Tex. App.-Corpus Christi, 2002, pet. dis'm.); see Tex. R. App. P. 44.2(b).

8. It was at this point the unrecorded bench conference occurred.

9. I would not hold that a prosecutor's remark addressing a defendant's "personal expression of remorse" is synonymous with "showing his irresponsibility." For my purposes, I observe that the trial court's timely and sound admonishment obviated potential error, if any, injected by the State.