Opinion issued April 14, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00496-CR
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JESUS ESCOBAR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Case No. 1853071
MEMORANDUM OPINION
A jury convicted Jesus Escobar of delivery of less than one-fourth of an
ounce of marijuana. 1 On appeal, he argues that unobjected-to comments by a
prosecutor during voir dire constitute fundamental error warranting a new trial.
1
TEX. HEALTH & SAFETY CODE ANN. § 481.120 (West 2010).
Alternatively, he contends that his trial counsel’s failure to object constitutes
ineffective assistance of counsel. We affirm.
Background
During voir dire, the prosecutor said:
And the criminal code actually says, “It shall be the primary duty of
all prosecuting attorneys, including any special prosecutors, not to
convict, but to see that justice is done.” And I’m excited about that
because it means that my job is to do the right thing. So when we see
that someone that we believe to be not guilty, we can dismiss that
case. When we believe them to be guilty, then we proceed. I also have
had the opportunity to view our assistant district attorney, Mike
Anderson, in a training session. He said, you know, “I’m so thankful
for this job and this position because I never have to try a case that I
don’t believe in.” And, so, I’m glad to be here today.
Escobar did not object.
The prosecutor subsequently told the venire that the State had the burden to
prove all elements of the offense, that the State’s burden was beyond a reasonable
doubt, and that Escobar was entitled to a fair trial and a presumption of innocence
until proven guilty.
The jury convicted Escobar. He timely appealed.
Improper Comments by the Prosecutor
A. The prosecutor improperly stated his personal belief in Escobar’s guilt.
Escobar contends that the prosecutor’s statement was improper because he
effectively told the venire that he personally believed Escobar to be guilty. We
agree.
2
The prosecutor indicated that he tries defendants if and only if he believes
that they are guilty. He decided to try Escobar. The unavoidable conclusion is that
the prosecutor personally believed that Escobar was guilty. See, e.g., Clayton v.
State, 502 S.W.2d 755, 756 (Tex. Crim. App. 1973) (“The prosecutor’s argument
that he would not prosecute a man he did not know in his heart to be guilty is
improper.”); Williams v. State, 417 S.W.3d 162, 171–72 (Tex. App.—Houston [1st
Dist.] 2013, pet. ref’d) (concluding that prosecutor’s statement that he dismisses
cases when “I don’t think that the defendant’s guilty” was improper); Beltran v.
State, 99 S.W.3d 807, 811 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)
(holding that prosecutor’s statement that “[i]f I believed the man was not guilty I
wouldn’t be here” was improper).
“A prosecutor may not inject personal opinion in statements to the jury.
Such a statement improperly conveys the idea that the prosecutor has a basis for
such an opinion outside the evidence presented at trial.” Williams, 417 S.W.3d at
172. Further, such a statement encourages jurors to conclude that a defendant is
“necessarily guilty because he was being tried.” See Mendoza v. State, 552 S.W.2d
444, 447 (Tex. Crim. App. 1977). Therefore, the prosecutor’s comment, which
conveyed his personal belief in Escobar’s guilt, was improper.
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B. Escobar waived review by failing to object
However, Escobar did not object to the prosecutor’s statements. “Rule 33.1
of the Texas Rules of Appellate Procedure requires that, in general, for a
complaining party to preserve an alleged error for appellate review, the record
must show that the party raised the issue with the trial court in a timely and
specific request, objection, or motion.” McLean v. State, 312 S.W.3d 912, 915
(Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing TEX. R. APP. P. 33.1(a) and
Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007)). “However, Texas
Rule of Evidence 103(d) provides that, ‘In a criminal case, nothing in these rules
precludes taking notice of fundamental errors affecting substantial rights although
they were not brought to the attention of the court.’” Id. (quoting TEX. R. EVID.
103(d)); accord Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000).
We have already concluded that the prosecutor’s remarks were improper.
See Williams, 417 S.W.3d at 172. We must therefore determine if the error was
fundamental. See McLean, 312 S.W.3d at 915. “Fundamental error must be so
egregious it prevents a fair and impartial trial.” Beltran, 99 S.W.3d at 811 (citing
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)).
Escobar cites no case, nor have we found any, holding that a prosecutor’s
statement of personal belief in a defendant’s guilt before a venire was a
fundamental error not requiring an objection. See id. at 811–12. But numerous
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Texas cases suggest that a trial judge’s improper statement to a venire might
constitute fundamental error if it rises to “such a level as to bear on the
presumption of innocence or vitiate the impartiality of the jury.” McLean, 312
S.W.3d at 917; see Blue, 41 S.W.3d at 132. But it is unclear if this rule should also
apply to prosecutors’ voir dire statements. Notably, once voir dire is over and the
jury is impanelled, The Court of Criminal Appeals has held that “a defendant's
failure to object to a jury argument or a defendant's failure to pursue to an adverse
ruling his objection to a jury argument forfeits his right to complain about the
argument on appeal.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996); accord Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004).
In Blue v. State, a trial judge disclosed to the venire that, to the judge’s
chagrin, the defendant turned down a plea bargain. 41 S.W.3d at 130. A plurality
of the Court of Criminal Appeals reasoned: “A juror who knows at the outset that
the defendant seriously considered entering into a plea agreement no longer begins
with a presumption that the defendant is innocent.” Id. at 132. Further, “[a] juror
who hears the judge say that he would have preferred that the defendant plead
guilty might assume that the judge knows something about the guilt of the
defendant that the juror does not.” Id. Accordingly, the plurality concluded that
“[t]he comments of the trial judge, which tainted appellant’s presumption of
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innocence in front of the venire, were fundamental error of constitutional
dimension and required no objection.” 2 Id.
Escobar argues that (1) Blue, which examined a trial judge’s voir dire
statements, also applies to a prosecutor’s voir dire statements and (2) the
prosecutor’s remarks in this case tainted the presumption of innocence and thus
constitute fundamental error under Blue. He asserts that “an exuberant
prosecutor . . . brought the full force of moral righteousness down on the side of
guilt. . . . [H]e told the jury that it was his . . . duty to see Mr. Escobar found guilty
because he believed in it.” Escobar urges us to conclude that these comments
“irreparably violated the presumption of innocence and tainted the jury with an
inflammatory emotional demonstration.”
The State urges us to consider the entire record. See Mendoza, 552 S.W.2d at
446–47 (considering prosecutor’s voir dire comments in light of entire record). It
notes that “the prosecutor went on to clarify the appellant’s rights and the State’s
burden of proof.” Accordingly, “the prosecutor’s comments in voir dire did not
violate the appellant’s presumption of innocence.” We agree with the State.
2
“Although the lead [plurality] opinion described the fundamental right at issue in
Blue as a defendant’s presumption of innocence, a concurring opinion described
the fundamental right at issue as the right to an impartial trial judge.” Jaenicke v.
State, 109 S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).
Accordingly, the various opinions in Blue are persuasive, but not precedential.
Unkart v. State, 400 S.W.3d 94, 101 (Tex. Crim. App. 2013).
6
The presumption of innocence is not impinged when, in the context of the
entire proceeding, “it is unlikely that potential jurors would have been led to
believe that the district attorney had a basis for his opinion unknown to the venire,
or that appellant was necessarily guilty because he was being tried.” Id. at 447. In
Mendoza, a prosecutor remarked to the venire that he “has the responsibility of
seeing that the individuals who are guilty of criminal offenses are brought to trial,
and hopefully brought to justice.” Id. at 446. “Immediately after these remarks
were made, defense counsel moved that the entire panel be quashed. The motion
was overruled; however, the court did admonish the district attorney to ‘be very
careful what you say.’” Id. at 446–47. Moreover, “the district attorney went on to
clarify the presumption of innocence and the State’s burden of proof.” Id. at 447.
“In light of this clarification and the court’s prompt admonishment, it is unlikely
that potential jurors would have been led to believe that the district attorney had a
basis for his opinion unknown to the venire, or that appellant was necessarily
guilty because he was being tried.” Id. “Since the remarks were general in nature
and made at a stage of the proceedings before the jury was impaneled and evidence
was adduced, dismissal of the venire was not warranted.” Id.
The Fourteenth Court of Appeals has held that there is no fundamental error
when a prosecutor improperly states his personal opinion regarding the guilt of the
defendant, the defendant does not object, and other circumstances negate the harm
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to the defendant. Beltran, 99 S.W.3d at 811–12. In Beltran, the following exchange
occurred between the attorneys and a venireperson:
VENIREPERSON: I have a follow up question. If the investigation
over the last thirteen years has shown that the man was not
guilty would the indictment be eliminated? Would the
indictment be dropped?
STATE: If I believed the man was not guilty I wouldn’t be here. My
job is to see that justice is done and I wouldn’t be sitting here.
DEFENSE COUNSEL: And I can tell you that if I believed he did this
and the State could prove it beyond a reasonable doubt I
wouldn’t be here, either.
Id. at 811. The defendant did not object. On appeal, the Fourteenth Court of
Appeals found no fundamental error. “We agree the prosecutor improperly stated
her personal opinion. Nonetheless, appellant cites no cases in which similar voir
dire statements were held to be fundamental error. Moreover, defense counsel’s
immediate response stating his own opinion negated any harm to appellant.” Id. at
811–12. Accordingly, our sister court upheld the conviction. Id. at 812.
Generally, when a prosecutor improperly tells the venire that he personally
believes the defendant to be guilty, an instruction from the trial court will cure the
harm to the defendant. Williams, 417 S.W.3d at 171–72. In Williams, the following
exchange occurred between a prosecutor and a venireperson:
STATE: My duty is to prove my case. What should I—if I don’t
believe this case—look, I’ll tell you right now. If I don’t believe
this case and I don’t think that the defendant’s guilty, what
should I have already done?
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VENIREPERSON: Not charged him.
STATE: We dismiss cases—
Id. at 171. The defendant objected, then unsuccessfully moved for a mistrial. We
concluded that “the prosecutor’s statement to the venire that he would have
dismissed the case against Williams if he believed he was innocent constituted an
improper expression of his personal opinion that Williams was guilty.” Id. at 172.
However, we also held that the trial court did not abuse its discretion in denying a
mistrial because it “made a prompt instruction to disregard the comment and
specifically noted that the comment only constituted the prosecutor’s opinion.
Under similar circumstances, Texas courts have held that a prompt instruction to
disregard cures any resulting harm.” Id.
Here, other actions by the prosecutor cured any harm to the presumption of
innocence. The prosecutor explained to the venire, “This whole process is to
ensure that the defendant gets a fair trial today. And, so, that’s what we’re doing.”
He acknowledged his burden of proof: “And I have some things to prove to you
today. And these are all elements that I have to prove. And if I do not prove all of
them, if there’s even one missing, you have to find the defendant not guilty. I have
to prove that . . . .” He clarified, “Again, I have to prove each and every element
beyond a reasonable doubt. . . . [Y]ou get to decide what reasonable doubt is.”
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The record demonstrates that the prosecutor promptly and thoroughly
explained the presumption of innocence and burden of proof to the venire. Thus,
this case is similar to Mendoza, Beltran, and Williams because these additional
circumstances mitigated any harm from the prosecutor’s error. 3 In light of the
entire record, the prosecutor’s improper statements did not bear on the presumption
of innocence or vitiate the impartiality of the jury. Thus, the statements did not
constitute fundamental error and, accordingly, Escobar forfeited appellate review
of them by failing to timely object.
Ineffective Assistance of Counsel
Escobar contends that, in the alternative, his trial counsel’s failure to object
constitutes ineffective assistance of counsel.
A. Standard of review
“To prove ineffective assistance, a defendant must show, by a
preponderance of the evidence, that (1) counsel’s performance was so deficient
that he was not functioning as acceptable counsel under the Sixth Amendment and
(2) there is a reasonable probability that, but for counsel’s error or omission, the
result of the proceedings would have been different.” Apolinar v. State, 106
S.W.3d 407, 416 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 155 S.W.3d 184
3
Notably, Escobar cites no additional irregularities that could have aggravated the
prosecutor’s error or limited the effectiveness of his mitigating statements. For
example, the jury charge included, as is common practice, instructions on the
presumption of innocence and burden of proof.
10
(Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687–96,
104 S. Ct. 2052, 2064–69 (1984) and Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999)). “Appellant bears the burden of proving by a preponderance of
the evidence that counsel was ineffective.” Thompson, 9 S.W.3d at 813. “When
handed the task of determining the validity of a defendant’s claim of ineffective
assistance of counsel, any judicial review must be highly deferential to trial
counsel and avoid the deleterious effects of hindsight.” Id. (citing Ingham v. State,
679 S.W.2d 503, 509 (Tex. Crim. App. 1984)).
B. Demonstrating ineffective assistance
The State contends that Escobar cannot succeed on the second prong—
prejudice—because, as discussed above, the other circumstances of this case
negate any potential harm. It also contends that Escobar cannot succeed on the first
prong—performance—because the record does not rebut the presumption that trial
counsel acted strategically. We agree on both points.
Escobar provides no argument on prejudicial effect other than the arguments
he relied upon to show an impingement of the presumption of innocence. Because
we have rejected those arguments, we do not find a reasonable probability that, but
for counsel’s error or omission, the result of the proceedings would have been
different.
11
Additionally, Escobar cannot show deficient performance. “Any allegation
of ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at
813. “There is a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance.” Id. “An appellate court should be
especially hesitant to declare counsel ineffective based upon a single alleged
miscalculation during what amounts to otherwise satisfactory representation,
especially when the record provides no discernible explanation of the motivation
behind counsel’s actions—whether those actions were of strategic design or the
result of negligent conduct.” Id. at 814.
Here, the record contains no indication why Escobar’s trial counsel chose
not to object. “We will normally not speculate to find trial counsel ineffective
when the record is silent as to counsel’s reasoning or strategy.” Apolinar, 106
S.W.3d at 416. Further, the rationale, if any, for that decision was not explored at
trial, and the issue was not raised in a motion for new trial. “Trial counsel ‘should
ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective.’” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim.
App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005)). “If trial counsel is not given that opportunity, then the appellate court
should not find deficient performance unless the challenged conduct was ‘so
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outrageous that no competent attorney would have engaged in it.’” Menefield, 363
S.W.3d at 593 (quoting Goodspeed, 187 S.W.3d at 392).
The record is silent on the attorney’s reason for not objecting, and his failure
to object to the prosecutor’s single remark is not so outrageous as to warrant
speculation into the matter. Accordingly, Escobar’s ineffective-assistance-of-
counsel claim fails.
Conclusion
We affirm the judgment of the trial court.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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