COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00115-CR
ROBERT GARCIA JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1321858D
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MEMORANDUM OPINION1
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A jury convicted Appellant Robert Garcia Jr. of delivery of a controlled
substance, cocaine, of four grams or more but less than 200 grams, a first
degree felony, and the trial court assessed his punishment at eighteen years’
confinement in the Institutional Division of the Texas Department of Criminal
Justice. See Tex. Health & Safety Code Ann. § 481.112(d) (West 2010). In two
1
See Tex. R. App. P. 47.4.
points, Appellant argues that the trial court erred during final arguments (1) when
it overruled his objection to the prosecutor’s direct comment on his failure to
testify and (2) when it overruled his objection to the prosecutor’s striking at the
defendant over the shoulders of counsel. We affirm.
The Evidence
Robert Walsh, a narcotics detective, purchased cocaine from a person he
met while conducting an undercover “street level” sting operation. Detective
Walsh identified Appellant as the person to whom he gave $250 in exchange for
eight grams of cocaine in a transaction that took place in an Arlington parking lot.
Argument About Which Appellant Complains
Both of Appellant’s points are based on arguments made by the prosecutor
during final arguments. We present first portions of defense counsel’s
arguments:
[DEFENSE COUNSEL]: It is the height of arrogance to bring one
officer with no other form of evidence that was possible to be
brought to you and nothing more and say, this is enough, trust us,
we’re the government.
Thereafter, defense counsel returned to the theme of the State’s relying on a
single witness:
[DEFENSE COUNSEL]: What we do know is that Detective Walsh
makes his living lying, being an actor, misrepresenting, faking what
he looks like, faking his voice, persuading people of things that are
not true. He is trained to persuade you. Trust me, I’m the
government. How arrogant is it that we don’t have to bring you any
other evidence?
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So there’s literally no other evidence before you, including
everything on this rail, for you to consider. I would suggest to you
just the weight of all this makes it impossible to find the case beyond
a reasonable doubt. . . .
It is reasonable to require the government to do its job. It is
reasonable to require the government to bring you different types of
evidence so that you can compare the evidence in reaching your
decision on if they’ve proved their case as to each of those elements
beyond a reasonable doubt.
The failure to provide you with what is routine investigation and
evidence in this case is a failure of the government to prove their
case to you beyond a reasonable doubt. It’s a good thing you’re
here.
Defense counsel closed with these remarks:
[DEFENSE COUNSEL]: It’s not enough. Protect the citizen who’s
accused and protect all of our Constitutional rights. Thank you very
much.
In the prosecutor’s closing arguments, he made the following arguments that
form the bases of Appellant’s complaints:
[PROSECUTOR]: Now, how much is enough? I’ve been doing this
a long time, and I wish just one time I would come in here to try a
case and the Defense would say, you’ve got me.
[DEFENSE COUNSEL]: Objection. This is a comment on failure to
testify. This is also striking at the Defendant over the shoulder of
counsel. This is a totally improper argument.
THE COURT: Overruled.
[PROSECUTOR]: What I’m pointing out, ladies and gentlemen, is
it’s the Defense’s job to point out supposed inconsistencies.
[DEFENSE COUNSEL]: Objection. This is a lessening of the
burden. The Defense, as the Court has told the jury, has no job at
all but to sit and be present.
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[PROSECUTOR]: I’ll withdraw that comment.
THE COURT: All right.
[PROSECUTOR]: But, ladies and gentlemen, you heard what the
arguments were.
[DEFENSE COUNSEL]: Excuse me, Your Honor. Did you, I’m
sorry, sustain my objection?
THE COURT: I did.
[DEFENSE COUNSEL]: So then I must ask for a limiting instruction,
please.
THE COURT: The Court will disregard the last argument of [the
prosecutor].
[DEFENSE COUNSEL]: The jury shall?
THE COURT: The jury shall. I’m sorry.
[DEFENSE COUNSEL]: Yes, sir. Then you know I have to ask for a
mistrial.
THE COURT: That’s denied.
Whether the Prosecutor Commented on Defendant’s Failure to Testify
In Appellant’s first point, he argues that the trial court erred by overruling
his objection to the prosecutors’ direct comment on his failure to testify.
The purpose of closing arguments is to facilitate the jury’s proper analysis
of the evidence so as to arrive at a just and reasonable conclusion based solely
on the evidence. Barnes v. State, 70 S.W.3d 294, 308 (Tex. App.—Fort Worth
2002, pet. ref’d). Permissible jury arguments by the State must fall within one of
four general areas: (1) summation of the evidence; (2) reasonable deduction
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from the evidence; (3) answer to the argument of opposing counsel; or (4) pleas
for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App.
1992), cert. denied, 510 U.S. 829 (1993).
Appellate courts review an allegedly improper argument in the context of
the entire argument. Mosley v. State, 686 S.W.2d 180, 183 (Tex. Crim. App.
1985). When the complaint is that a prosecutor commented on the defendant’s
failure to testify, we review the language used from the jury’s standpoint. Nowlin
v. State, 507 S.W.2d 534, 536 (Tex. Crim. App. 1974). If the prosecutor’s
comments are not a direct attack on the defendant’s failure to testify, the
language used must be such that the jury would have “necessarily and naturally”
taken it as a comment on the defendant’s election not to testify. Montoya v.
State, 744 S.W.2d 15, 35 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1227
(1988).
The prosecutor’s comment questioning how much was enough was in
response to defense counsel’s closing assertion, “It’s not enough.” It was from
that point that the prosecutor launched into other comments. We hold that the
prosecutor’s arguments were in response to opposing counsel’s arguments. See
Felder, 848 S.W.2d at 94–95.
We also hold the prosecutor’s argument was not a direct comment on
Appellant’s failure to testify. The prosecutor referred to “the Defense” generically
and not to Appellant specifically. His reference to “the Defense” was broad
enough to encompass defense counsel, as distinguished from Appellant or
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defendants generally. Appellant asserts that the prosecutor’s subsequent
comment—“it’s the Defense’s job to point out supposed inconsistencies”—shows
that the prosecutor “stepped in it again.” We disagree. That comment appears
to be in response to defense counsel’s argument that it was “reasonable to
require the government to do its job.” We conclude it was not a comment on
Appellant’s failure to testify.
Finally, we hold it was not manifestly intended or of such a character that
the jury would have necessarily and naturally taken it as a comment on
Appellant’s failure to testify. The implication that the comment referred to the
defendant’s failure to testify must be clear. See Bustamante v. State, 48 S.W.3d
761, 765 (Tex. Crim. App. 2001). That the language might be construed as an
implied or indirect allusion is insufficient. See id. The comment was not
manifestly intended to comment on Appellant’s failure to testify. See id. The
prosecutor was not faulting Appellant for not taking the stand for the purpose of
admitting his guilt. The prosecutor was telling the jury that no matter how strong
a case he presented, in a contested trial, “the Defense” was never going to
concede its case. The jury would not have necessarily and naturally taken the
prosecutor’s argument as a comment on Appellant’s failure to testify. See id.
We overrule Appellant’s first point.
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Whether the Prosecutor Struck at Appellant over the Shoulders of Counsel
In Appellant’s second point, he contends the trial court erred by overruling
his objection that the prosecutor had struck at him over the shoulders of counsel.
The “over-the-shoulders-of-counsel” rule protects the defendant from
improper character attacks on defense counsel. See Coble v. State, 871 S.W.2d
192, 205 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 829 (1994). Character
attacks on defense counsel are improper because they unfairly inflame the jury
against the accused. Wilson v. State, 7 S.W.3d 136, 147 (Tex. Crim. App. 1999).
A prosecutor risks improperly striking at a defendant over the shoulders of
counsel when the prosecutor refers to defense counsel personally and explicitly
impugns defense counsel’s character. Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999); Guy v. State, 160
S.W.3d 606, 617 (Tex. App.—Fort Worth 2005, pet. ref’d). The State may not
accuse defense counsel of bad faith and insincerity. Fuentes v. State, 664
S.W.2d 333, 335 (Tex. Crim. App. [Panel Op.] 1984). We review a trial court’s
ruling on an objection asserting improper jury argument for an abuse of
discretion. Lemon v. State, 298 S.W.3d 705, 707 (Tex. App.—San Antonio 2009,
pet. ref’d).
The prosecutor’s comments were directed at “the Defense” generically and
not at defense counsel personally. His comments, therefore, attenuate any
personal impugning of defense counsel’s character. Nor did the prosecutor
impugn the character of defense counsel generally; rather, the prosecutor was
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trying to drive home the point that in a contested trial, the defense will not
concede its case no matter how strong a case the prosecution brings. To the
extent the prosecutor’s following comment about it being “the Defense’s job to
point out supposed inconsistencies,” that argument broached accusing defense
counsel generally of acting in bad faith and with insincerity; however, as noted
above, this latter comment appears to have been in response to defense
counsel’s argument that the State failed in its job of presenting sufficient
evidence. In any event, the trial court instructed the jury to disregard that
comment. We overrule Appellant’s second point.2
Conclusion
Having overruled both of Appellant’s points, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 29, 2015
2
To the extent Appellant argues, in conjunction with his second point, that
the State injected new facts outside the record, this was not Appellant’s objection
at trial; accordingly, that particular complaint was not preserved for appeal. See
Tex. R. App. P. 33.1(a).
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