Affirmed and Majority and Dissenting Opinions filed May 9, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00371-CR
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RAQUEL MELENDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1225398
D I S S E N T I N G O P I N I O N
In her first issue, appellant contends the trial court reversibly erred by overruling the following objections to the State=s jury argument:
Prosecutor: [T]here=s a place where prostitution is alive and well. She=s one of the people who contributes to that. A reason she doesn=t remember this event, think about it, why doesn=t she remember offering to engage in prostitution? It=s because this is something that she does day in and day out.
Appellant: Objection, violation of Rule 404, outside the record.
The Court: Overruled.
Prosecutor: This was not some singular event that she=s going to remember.
Appellant: Objection, outside the record, improper reason to convict.
The Court: Overruled.
Prosecutor: This is not some singular event that she=s going to remember. This is something that happens on a daily basis.
Appellant: Objection, outside the record, violation of 404.
The Court: Overruled.
(emphasis added).
Appellant objected to the State=s argument on two grounds: (1) the argument was outside the record; and (2) the argument violated Texas Rule of Evidence 404 and thus suggested an improper reason to convict appellant. The majority addresses only the first objection.
The majority concludes that the testimony of the State=s only witness, Deputy Kevin Monfort, supports an inference that engaging in sex for pay was common for appellant and thus supports the State=s argument Acircumstantially.@ More specifically, the majority reasons that Deputy Monfort=s testimony supports such an inference because this testimony demonstrates that appellant (1) brought up the subject of sex for pay with Monfort, using what Monfort stated is a slang term for prostitution in sexually-orientated businesses; (2) invited Monfort to a private room to touch him in ways that violated laws; and (3) negotiated a price in a way that indicated she had a clear understanding of how to Aclose the deal.@ The majority concludes it was reasonable to infer that Aappellant had a level of experience and skill in these matters that had been developed through other such instances@ and therefore that she engaged in prostitution on a daily basis.
Was the State=s jury argument improper?
The purpose of closing argument is to facilitate the jury=s proper analysis of the evidence presented at trial so that it may arrive at a just and reasonable conclusion based solely upon the evidence admitted at trial. Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. [Panel Op.] 1980); Jones v. State, 38 S.W.3d 793, 796 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Under our current jurisprudence, a jury argument is permissible only if it falls into one or more of the following categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. See Felder v. State, 848 S.W.2d 85, 94B95 (Tex. Crim. App. 1992); but see Hawkins v. State, 135 S.W.3d 72, 85B87 (Tex. Crim. App. 2004) (Womack, J., concurring) (stating, in three-justice concurring opinion, that jurisprudence requiring closing arguments to fall within one of these four categories is Aobviously untrue,@ Alogically invalid,@ Anonsensical,@ and should be changed).
The argument in question does not fall within the third or fourth categories, and the State does not argue otherwise. The State asserts that its argument constitutes a summation of the evidence; however, as the majority correctly points out, this argument cannot be a summation of the evidence because there was no evidence at trial that appellant engaged in any act of prostitution other than the charged offense, much less any evidence that she engaged in prostitution on a daily basis. Therefore, the main issue is whether the challenged statements are a reasonable deduction from the evidence. See Felder, 848 S.W.2d at 94B95.
In making closing arguments, lawyers are allowed wide latitude in drawing inferences from the evidence; however, the inferences drawn must be reasonable and offered in good faith. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997). On appeal, the State contends that it is reasonable to deduce from the evidence that appellant did not remember Monfort because the event was not unique or unusual for her. The State relies on appellant=s testimony that she had danced for many men and did not remember many of them and on Monfort=s testimony that appellant danced for him and offered him sex for pay on one occasion. Even if it were logical to connect this evidence in this way, it is still not reasonable to conclude that appellant does not remember Monfort because her participation in acts of prostitution is Asomething that happens on a daily basis.@ Monfort testified that appellant engaged in prostitution one time. Appellant testified that she had danced for hundreds of men but never engaged in prostitution. Taking as true Monfort=s testimony that appellant engaged in prostitution once, her testimony that she has danced for hundreds of men does not support a reasonable inference that she has engaged in prostitution with these men or that she engages in prostitution daily. Further, the fact that appellant approached Monfort, used a purported slang term for prostitution, Aplay,@ and appeared to know Ahow to close the deal@ and negotiate a price is not enough to support a reasonable inference that she engaged in acts of prostitution Aon a daily basis.@ The State=s closing argument that appellant did not remember Monfort because prostitution Ais something she does day in and day out@ and Asomething that happens on a daily basis@ injected new and prejudicial Afacts@ and speculation into the record and went beyond a reasonable inference from the evidence presented at trial. See Melton v. State, 713 S.W.2d 107, 114 (Tex. Crim. App. 1986) (stating that closing argument imputing to defendant the commission of many other similar crimes not supported by the evidence is impermissible). Because the State=s argument was improper, the trial court erred in overruling appellant=s objections.
Was the trial court=s error harmful?
The next determination is whether the trial court=s error was harmful. Remarks that fall outside the permissible bounds of jury argument are generally nonconstitutional errors. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Therefore, a reviewing court must disregard the error if it does not affect the accused=s substantial rights. Tex. R. App. P. 44.2(b). In other words, if, after reviewing the record as a whole, the reviewing court has fair assurance that the error did not influence the jury or had only a slight effect, appellant=s conviction should not be overturned. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The following three factors are used to analyze the harm associated with improper jury argument: (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct.
Severity of the Misconduct
Because a prosecutor is a public official, the jury may give undue weight to a prosecutor=s allusion to facts outside the record. See Monkhouse v. State, 861 S.W.2d 473, 478 (Tex. App.CTexarkana 1993, no pet.). The State=s argument in this case not only injected new Afacts@ into the record, but it also invited speculation and could have been perceived by the jury as the prosecutor=s inside knowledge that appellant had committed acts of prostitution on many other occasions, even though there was no evidence of any such acts presented at trial.
In addition, the prosecutor=s argument that appellant did not remember the charged act of prostitution because she commits acts of prostitution on a daily basis contravenes the policy expressed in Rule of Evidence 404, which governs the admissibility of character evidence. Rule 404(b) provides that A[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.@ Tex. R. Evid. 404; Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004). The rule prohibits the admission of evidence to prove a person=s character, from which the trier of fact may infer that the person acted in conformity with that character trait on the occasion in question. Johnston, 145 S.W.3d at 219. For example, in a prosecution for injury to a child, the State might wish to offer other instances in which the defendant beat the complainant or another child to prove he is a Achronic child abuser.@ Id. In this scenario, the jury then would be invited to infer that, because the defendant is a chronic child abuser, he abused the complainant on the charged occasion. Id. That is precisely the character‑propensity purpose prohibited by Rule 404(b). Id. For centuries, the law has rejected such evidence because it injects Adangerous baggage of prejudice, distraction from the issues, time consumption, and hazard of surprise.@ Id.
Likewise, in this case in which appellant was being tried for a single act of prostitution, the State could not have offered evidence of other instances, if any, in which appellant offered to engage in sexual conduct for a fee. See id. In Texas, a person can be paid for performing an exotic dance without committing a crime; however, a person cannot be paid a fee for engaging in sexual conduct, as defined by the Penal Code, without committing a crime. See Tex. Pen. Code Ann. '' 43.01, 43.02 (Vernon 2003). Nonetheless, the State=s closing argument invited the jury to equate exotic dancing (a non-criminal act) with prostitution (a criminal act). Appellant admitted that she made her living by engaging in exotic dancing, but the State told the jury that appellant engages in prostitution daily. Appellant objected that the State=s argument violated Rule 404 and that it suggested an improper reason to convict her. The State=s misconduct was severe because the improper argument invited the jury to convict appellant based on her character as a person who, according to the State, engages in prostitution on a daily basis rather than based on the evidence presented at trial. Moreover, the jury had no way to evaluate the accuracy of the State=s assertion that appellant engages in prostitution Aon a daily basis.@ The State=s argument invited the jury to convict on an improper basisCappellant=s alleged action in conformity with her alleged character as a person who engages in prostitution daily. See Melton, 713 S.W.2d at 114.
The State cannot use closing argument to get evidence before the jury that is outside the record and prejudicial to the accused, but that is precisely what the State did in this case. See Green v. State, 679 S.W.2d 516, 517 (Tex. Crim. App. 1984) (holding that prosecutor=s argument at punishment phase of trial concerning testimony about defendant=s reputation invited jury to speculate, was improper, and was not harmless); Anderson v. State, 633 S.W.2d 851 (Tex. Crim. App. 1982) (stating that A[i]f defendant=s objection to prosecutor=s final argument on ground that argument invited jury to speculate that there was other evidence detrimental to defendant which jury had not heard had been overruled, a reversal would be required@). The Court of Criminal Appeals has cautioned that during jury arguments, prosecutors should refrain from making arguments based upon matters outside the record. Indeed, an argument alluding to information not introduced into evidence is improper and the error is reversible if the argument injects or emphasizes harmful facts outside the record. See Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986) (holding that prosecutor=s jury argument in response to contention by defense attorney that defendant=s life was in jeopardy was so prejudicial as to require new trial); Fuentes v. State, 664 S.W.2d 333, 337B38 (Tex. Crim. App. 1984) (holding that prosecutor=s comments that defense counsel was Ain bad faith like usual@ and that the evidence of police misconduct he was seeking to elicit was Agarbage,@ were manifestly improper, harmful, and prejudicial, and thus constituted reversible error); Daniel v. State, 550 S.W.2d 72, 73 (Tex. Crim. App. 1977) (holding that prosecutor=s argument that officer was shot placed before the jury new and harmful facts that were not supported by evidence, and error was not harmless). The State=s argument in this case was manifestly improper and injected new and harmful Afacts@ into the proceeding. Further, the State=s improper and unsupported statements likely influenced or had more than a slight effect on the jury=s decision to convict.
Measures Adopted to Cure Misconduct
Appellant made three timely objections to the State=s improper argument, all of which the trial court overruled. The trial court did not give a curative instruction. Furthermore, the prosecutor=s making of two more improper statements after the trial court overruled appellant=s first objection may have emphasized these statements to the jury, and the trial court=s overruling of defense counsel=s objections to all three statements may have indicated to the jury that it was permissible to convict on this improper basis. See Good v. State, 723 S.W.2d 734, 738 (Tex. Crim. App. 1986).
Certainty of Conviction Absent Misconduct
The third factorCcertainty of conviction absent the misconductCalso weighs in favor of finding harm. As noted above, Deputy Monfort was the State=s only witness, and no other evidence supported appellant=s conviction. Appellant testified that, although she had danced for many men and did not remember Deputy Monfort, she had not engaged in prostitution with Monfort because she had never engaged in prostitution with anyone. Though there is legally sufficient evidence to support her conviction, the only evidence before the jury was the conflicting testimony of Deputy Monfort and appellant. The evidence of appellant=s guilt was not overwhelming. Although the jury might have convicted appellant absent the State=s impermissible jury argument, it is far from certain that the jury would have done so. In Rodriquez, after appellant had just been convicted of one heroin sale, the prosecutor argued during punishment that appellant had made other heroin sales to many other people. See Rodriguez v. State, 520 S.W.2d 778, 780 (Tex. Crim. App. 1975) (holding that trial court reversibly erred in overruling objection to argument that referred to new and harmful facts neither in evidence nor reasonable inferred from evidence). The prosecutor stated, AHe has touched more lives than a killer could do with the heroin he helps disburse.@ The Court of Criminal Appeals reversed, holding that evidence of one sale, and the small quantity sold, did not support such an inference. Id.
Furthermore, in Melton, the Court of Criminal Appeals held that the State=s closing argument, implying that the defendants had committed 300 other thefts similar to the charged theft, was so prejudicial that it was not cured by the trial court=s instruction to disregard it. See Melton, 713 S.W.2d at 113B14. Here, the trial court did not instruct the jury to disregard; rather, by sustaining three objections to this evidence, the trial court tacitly signaled to the jury that it was proper to convict based on the other alleged acts of prostitution mentioned in the State=s closing argument. If the improper argument in Melton could not survive a harm analysis despite an instruction to disregard, then surely the application of this logic here, where the State=s closing argument was not tempered by an instruction to disregard, should not produce a different result.
Conclusion
The evidence in this case does not support a reasonable inference that appellant engaged in prostitution on a daily basis. The State=s argument was an invitation for the jury to speculate on prejudicial Afacts@ that were not supported by evidence and to convict her on an improper basis. Under these circumstances, the trial court=s error was not harmless. Accordingly, this court should sustain appellant=s first issue and reverse and remand this case for a new trial.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Majority and Dissenting Opinions filed May 9, 2006.
Panel consists of Justices Anderson, Edelman, and Frost. (Edelman, J., majority.)
Publish C Tex. R. App. P. 47.2(b).