Affirmed and Majority and Concurring Memorandum Opinions filed September 23, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-01066-CR
NO. 14-02-01067-CR
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DWAYNE ANDRE TYSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause Nos. 906,328 and 906,329
M A J O R I T Y M E M O R A N D U M O P I N I O N
A jury found appellant, Dwayne Tyson, guilty on two counts of aggravated robbery and, after finding true the allegation in an enhancement paragraph that appellant had a prior felony conviction, assessed twenty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant complains that the State=s improper jury argument deprived him of a fair trial, as guaranteed to him by the Sixth Amendment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
During the late afternoon hours of March 20, 2002, appellant entered into Finatra Auto Sales, where owner Anwar Vaid and his father Mohammed Vaid were present. Brandishing two guns and demanding obedience, appellant ordered both men to get on the floor, and threatened to shoot them if they did not stop speaking their native language (Gujarati). After pressingCunsuccessfullyCfor the location of the safe, appellant waited for about ten minutes, again threatening to kill the two men. Appellant took Anwar=s money and cell phone, then pulled the hammer of the gun and again demanded the location of the safe. But Anwar, scared for his life, still insisted that there was no safe. Appellant told the men that he was leaving and that anybody trying to chase him would be killed. After appellant left, Anwar gave chase out of the store and onto a busy city street, but stopped when appellant fired a shot in his direction.
Another couple witnessed this pursuit, and watched as appellant ran to a gas station and pointed a gun at a female who was refueling her car. After appellant got in the car and sped away, the female ran inside the gas station and notified the police. Appellant proceeded to drive recklessly across parking lots and small roads before being struck by a pursuing Houston police officer=s car and finally apprehended. When the police brought appellant back to their store, both Anwar and Mohammed positively identified appellant as the robber.
After the jury found appellant guilty on two counts of aggravated robbery, the case moved to the punishment phase, during which the jury assessed a punishment of twenty-five years= confinement. This appeal followed.
DISCUSSION
I. Improper Jury Argument
In his sole point of error, appellant claims that the prosecutor=s closing argument in the punishment phase was improper because it asked the jurors to consider their own personal feelings as to how they would feel if appellant confronted them on the street. The argument described appellant=s reckless acts and urged the jury to put their family members in the midst of those actions. In this closing argument, the prosecutor appealed to the jury=s sense of family:
I wonder if any of you were out there in that traffic when he was driving around, when he was flying across Gessner to brake, ... What if any of your family was out there?
Directly after this statement, appellant=s counsel voiced his objection: AJudge, I=m going to object. Improper closing.@ The judge overruled this objection and allowed the State to continue with its closing argument.
On appeal, the State contends, as a threshold matter, that appellant waived his right to complain because his trial court objection was too general. That is, that Aimproper closing@ was not specific enough to preserve error for appeal. To support its contention, the State cites several cases in which generally similar language was considered insufficient to preserve error. Hougham v. State, 659 S.W.2d 410 (Tex. Crim. App. 1983); Huggins v. State, 795 S.W.2d 909 (Tex. App.CBeaumont 1990, pet. ref=d); Meek v. State, 628 S.W.2d 543 (Tex. App.CFort Worth 1982, pet. ref=d).
The Texas Court of Criminal Appeals has long held, however, that an objection is sufficient to preserve error when Athe correct ground for exclusion was obvious to the judge and opposing counsel.@[1] Lankston v. State, 827 S.W.2d 907, 908 (Tex. Crim. App. 1992); see also Ex parte Little, 887 S.W.2d 62, 65 (Tex. Crim. App. 1994) (A[A]n objection may be phrased in any manner which sufficiently appraises the trial judge and opposing counsel of the nature of the complaint.@). As such, all a party must do is Alet the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.@ Lankston, 827 S.W.2d at 909.
Here, the objection was lodged at such a timeCimmediately after the prosecutor asked the jurors to consider their familiesCthat the trial judge would know what appellant=s counsel was objecting to and why he was objecting to it. See id. Although it may be a close call, we conclude, given the context, that the basis for the objection was apparent to the judge and opposing counsel. Accordingly, we find that appellant=s objection was sufficient to preserve error on appeal.
Having decided that appellant has preserved error for appeal, we now look to see if the closing argument was, in fact, improper. The purpose of closing argument is to help the jury properly analyze the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted in evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980).
Asking jurors to consider what a victim experienced during a crime, or the effects of a crime on the victim or the victim=s family members, naturally requires jurors to Aplace themselves in the shoes@ of the victim or the victim=s family. Some appellate courts have, in years past, employed a per se rule against placing the jury in the victim=s shoes, because it involves matters outside the record. Chandler v. State, 689 S.W.2d 332, 334 (Tex. App.CFort Worth 1985, pet. ref=d); Williams v. State, 732 S.W.2d 762, 765 (Tex. App.CBeaumont 1987, no pet.); see also Palermo v. State, 992 S.W.2d 691, 696 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). However, courts have also held strongly to the principle that the prosecutor has the right to personalize, by way of illustration, the circumstances of a crime. Palermo, 992 S.W.2d at 696 (stating the State may Apersonalize the circumstances of a crime, when making a plea for law enforcement@); Barnes v. State, Nos. 14-97-00307-CR, 14-97-00401-CR, 14-97-00404-CR, 1999 WL 672352 at *5 (Tex. App.CHouston [14th Dist.] August 31, 1999, pet. ref=d) (not designated for publication) (stating that A[i]t is proper for a prosecutor to vividly recount the events@). Due to these two seemingly conflicting principles, courts have recently distinguished between a proper and improper jury argument. Palermo, 992 S.W.2d at 696; see also Torres v. State, 92 S.W.3d 911, 920B21 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Indeed, A[t]he distinction between fully appreciating the victim=s pain and suffering, on the one hand, versus how the victim would want the defendant punished, on the other, is a subtle, but important distinction.@ Torres, 92 S.W.3d at 922.
While it may be impossible to articulate a fail-safe test, it does help to consider the characteristics of proper and improper jury argument. A proper jury argument must fit in one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985); Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). Generally, a proper jury argument focuses more on the actions of the defendant and the reactions of the victim, not the jury. See Linder v. State, 828 S.W.2d 290, 303 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d). Put differently, a proper jury argument focuses on the defendant=s moral blameworthiness. See Torres 92 S.W.3d at 921. In Linder, for example, the court found the following argument to be proper:
ACan you imagine what it=s like to know that someone has gone into your home ... Imagine what it=s like and what kind of person it takes to go back and pick up an innocent defenseless woman whose son is sleeping right next to her ... Can you imagine what it was like to be that woman?@
Linder, 828 S.W.2d at 303.
The appellate court noted that each detail was a summation of the evidence of the recordCin particular, the testimony of the complainant. Id. And it focused on the defendant=s blameworthiness. Accordingly, it was a legitimate appeal to the jury to apply their general knowledge and experience to the evidence adduced at trial.
On the other hand, in making an improper argument, the prosecutor goes beyond the record if there is an attempt to entice the jury to render a verdict based on emotion, rather than impartiality. See, e.g., Brandley, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985); Torres, 92 S.W.3d at 922 (holding that the prosecutor=s inflammatory argument was improper because it asked the jury to render a verdict based upon personal passion). The court must therefore determine whether the argument openly pleads with the jury to abandon their objectivity in deciding the case. Torres, 92 S.W.3d at 922. This can be seen in the case of Boyington v. State, 738 S.W.2d 704, 709 (Tex. App.CHouston [1st Dist.] 1985, no pet.), in which the prosecutor implored the jurors to consider their family: ABecause what would you do if this happened to your family? How would you feel if your home was firebombed one night and you saw your children on fire?@ Similarly, in Brandley, the court found this impressionable argument improper: AIt is fair for you to think about the feelings of the father who lost his baby daughter and it is fair for you to think about how you would feel if you lost your children...@ [2] Brandley, 691 S.W.2d at 712.
It is clear that the prosecutors in both Brandley and Boyington focused less on the defendant=s actions, and more on the jury themselves. In doing so, each prosecutor Adirectly and explicitly urged the jury to punish the defendant as if he had actually attacked them and their families.@ Linder, 828 S.W.2d at 303. And neither argument focused on the defendant=s blameworthiness, but rather attempted to emotionally charge the jury to render a revenge-based verdictCas if the victim were a family member. In short, these arguments asked the jurors to abandon their objectivity and did not ask them to be impartial.
Here, the prosecutor has walked the path of Boyington and Brandley. She has asked the jury to consider AWhat if your family is out there,@ and AI wonder if any of you were out there.@ This is far from the evidence adduced at trial, and is not a mere summary of the evidence. It could be argued as a plea for law enforcement, but much like Brandley, it goes too far. It asks the jury to consider their own families, not those of the victims. It asks them to punish this defendant for any harm that he could have caused to them, rather than the harm he did in fact cause. And, most importantly, it does not focus on the defendant=s moral blameworthiness, but rather on the jury=s emotions. In short, it asks the jury to abandon its objectivity in making its decision. See Brandley, 691 S.W.2d at 712. As such, we find the argument to be improper. However, even though we find the argument to be improper, we must still examine the error=s effect and determine whether the appellant was denied a fair trial.
II. Standard of Harm
When reviewing alleged error in a jury argument, the appellate court must analyze the statement in light of the entire argument and not through isolated instances. Drew v. State, 743 S.W.2d 207, 220 (Tex. Crim. App. 1987). Because comments upon matters outside the record, even though outside the permissible areas of jury argument, do not appear to raise any unique concerns that would require us to assign constitutional status, we will apply the standard of harm for nonconstitutional errors. See Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). And any nonconstitutional error Athat does not affect substantial rights must be disregarded.@ Tex. R. App. P. 44.2(b). In Martinez, the court prescribed three factors to consider when determining if a substantial right was effected: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor=s comments), (2) measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. Id. (citing Mosely v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070, 119 S. Ct. 1466, 143 L. Ed. 2d 550 (1999)). Because the argument occurred during the punishment phase, the third factor is modified to include Athe certainty of >the punishment assessed.=@ Id. at 693.
The first factor is concerned with the severity of the misconduct. In this case, it seems that the comment was not a personal attack on the defendant, but rather was intended to be a plea for law enforcement. See Martinez, 17 S.W.3d at 693. Instead of dwelling on that particular line of argument, the prosecutor briefly made the comment after describing the violent nature of appellant=s acts. By asking the jury to think of their families, on the road at the same time as the defendant, the prosecutor was simply trying to stress the importance that innocent people be free from harm. As such, the comment is, at most, mildly improper. The prosecutor=s main pointCthat innocent people could be harmedCis an entirely legitimate point to make. See id. at 693.
Turning to the second factor, we look to whether the court provided any cautionary instruction, and the effectiveness of the instruction. See id. at 692. Here, the court did not instruct the jury at all after overruling appellant=s objection to the jury argument. However, the prosecutor did nothing to emphasize the erroneous aspects of this ruling. And we believe the prosecutor=s inaction nullified any harm which might have occurred because of the court=s failure to take curative measures. Therefore, the court=s failure to provide a cautionary instruction carries little weight in our analysis.
The third factorCevidence presented at the punishment phase, including the punishment assessedCweighs heavily in the State=s favor. See id. After the jury returned a guilty verdict on two counts of aggravated robbery, the case entered the punishment stage, in which the jury found the enhancement paragraph to be Atrue.@ As to the robbery of Finatra Auto Sales, appellant expressed remorse and explained that another man approached him with the idea of the robbery, and that it essentially took place as the witnesses had described. Appellant also testified about his drug addiction, and stipulated to a prior conviction for felony possession of a controlled substance. Additionally, the State introduced new evidence of three unsolved robberies in which appellant was a suspect. Appellant denied any involvement in these three cases, but each of the three victims in these robberies identified him as the assailant. Given the overwhelming evidence against appellant, appellant=s own confirmation of that evidence, as well as the evidence of other crimes, the prosecutor=s comments were relatively mild. Furthermore, the comments constituted only a small portion of the closing argumentCin 12 pages of argument, the improper argument took up less than one-fourth of one page. The jury assessed a sentence of 25 years, which is on the low end of the punishment range (5B99 years) for this offense. See Torres, 92 S.W.3d at 924.
After carefully considering these three factors, as well as appellant=s failure to address the issue of harmful error, we conclude that the State=s argument did not affect appellant=s substantial rights. While we acknowledge that the jury argument was improper, we find that, considering the evidence supporting appellant=s sentence, the error associated with that argument was harmless. Therefore, we overrule appellant=s sole point of error.
The trial judgment is affirmed.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Opinion filed September 23, 2003.
Panel consists of Chief Justice Brister and Justices Hudson and Fowler. (Hudson, J. Concurring).
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Indeed, the cases that seem to take a more Aslavish and unforgiving approach, _ have dwindled in importance as they have in frequency.@ Lankston, 827 S.W.2d at 908.
[2] The court in Brandley found this improper, but nonetheless found the error harmless since the trial court gave a timely instruction to disregard. Brandley, 691 S.W.2d at 713.