Jackson v. State

HOWELL, Justice,

dissenting.

I respectfully dissent. The majority concedes that the trial court erred in allowing the prosecutor to advise the jury that he would only present evidence which he believed to be true, but the majority has *225dismissed the error as harmless. The majority has not properly applied the applicable rule:

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

Tex.R.App.Proc., R. 81(b)(2) (emphasis added). The majority has not fully quoted the record. In addition to the testimony quoted by the majority, the proceedings continued as follows:

[Prosecution]_ Every lawyer — you know, I’m a prosecutor. I’m a lawyer. I’m bound by the same ethical principles that they are and likewise, we just represent different sides. That’s all.
As our oath as lawyers, part of our oath is to see to it that the truth is shown and especially to a jury and as such, we’re required ethically to present only evidence that we have a good faith belief in, same as with them.
[Defense Counsel]: Excuse me. I’m going to make the same objection, Your Honor, that it’s bolstering; violates due process for the prosecutor to state that he is going to vouch for the confession presented; violates the United States and Texas Constitution^], and is bolstering.
[The Court]: With regard to the objection of bolstering, the Court is going to overrule the objection.
Once again, members of the jury, any lawyer that presents a witness to you is in effect testifying or in a sense is stating to you that they have reason to believe that this person will present to you the truth. In other words, the idea is that lawyers are officers of the Court and they cannot consciously or knowingly or intentionally allow a witness to testify when they know that witness is not going to tell the truth, and that’s all that amounts to when you say you’re vouching for the credibility.
Again, there’s a difference in credibility in a decision telling you what they say is the truth. It’s your job to determine if what they’re saying is true or not true. It’s the lawyers [sic] job to present to you, at least prima facie, say to you: I believe this witness will testify and tell the truth, and that doesn’t make any difference whose side it’s on, be it the Defense lawyer or State’s lawyer because all lawyers are bound not to allow a person to testify when they know that person will not testify as to the truth.

In sum, the prosecutor was allowed to pursue at length the proposition that he would only present the portions of the confession which he believed to be true. Twice, the court rejected defensive objections. In each instance, the court made lengthy comments which could only have served to reinforce the prosecutor’s contentions. This is not the type of error that may be brushed aside under the criminal justice standard of “harmless beyond a reasonable doubt.”

In the case before us, the prosecutor, while attempting to explain why a portion of appellant's confession would not be offered, unequivocally gave his opinion that the offered portions were true. Unless clearly invited, it is improper for the prosecutor to inject his opinion of the evidence or the guilt of the accused. Villalobos v. State, 568 S.W.2d 134 (Tex.Criminal App. 1978); Clayton v. State, 502 S.W.2d 755, 756 (Tex.Crim.App.1973). This rule is grounded on the proposition that “[i]t is particularly improper, even pernicious, for the prosecutor to seek to invoke his personal status as the government’s attorney or the sanction of the government itself as a basis for conviction of a criminal defendant.” United States v. Garza, 608 F.2d 659, 663 (5th Cir.1979). “The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says.” Hall v. United States, 419 F.2d 582, 583-84 (5th Cir.1969).

The majority concedes that Robillard v. State, 641 S.W.2d 910 (Tex.Crim.App.1982), has branded the practice in question as error, but would declare the error to be harmless beyond a reasonable doubt.

*226The majority presents that the error in this case is harmless beyond a reasonable doubt because the court below charged the jury that it was the exclusive judge of the weight and credibility of the evidence. The instruction is classic; it appears in virtually every criminal charge ever written. We must assume that it was given in Robil-lard. It follows that the attempted distinction has no substance. Furthermore, if standard instructions such as the credibility instruction can transform errors of this magnitude into error that is harmless beyond a reasonable doubt, the entire concept of a fair criminal trial has been altered.

The majority has further presented that the language in Robillard was “much stronger,” an extremely subjective evaluation. But, in writing its Robillard decision, the Court of Criminal Appeals did not undertake any such narrow approach. It broadly declared it to be not only error but reversible error for a prosecutor to vouch for the credibility of the evidence. Robil-lard has been recognized but not followed.

If for no other reason, the subjective evaluation of “much stronger” should be rejected because the prosecutor’s comments in the case at hand continued at length. He made not just one single statement vouching for the State’s evidence; as many as a half dozen statements of voucher are discernible. The harmful nature of the remarks was compounded by the trial court. The court did not satisfy itself with a simple overruling of the objections lodged by counsel; it twice entered into an extended dialogue that reinforced the prosecutor’s erroneous remarks. The “much stronger” evaluation will not meet scrutiny.

Finally, the majority would declare the erroneous statements not only harmless, but to be so beyond a reasonable doubt, on the ground that the remarks came during voir dire, whereas in Robillard, the statement came during final argument. Where is the authority for the proposition that a harmful remark made during final argument would be, beyond a reasonable doubt, harmless if it had been made during voir dire? This dissent knows of none and considers that any such authority would be dangerous precedent to establish. Our appellate courts should never communicate to the prosecution side of the bar the notion that objectionable remarks will be held harmless if but made at an early stage of the trial.

Has the majority not overlooked the long-and well-accepted truism that first impressions are lasting impressions? Is the majority so far removed from trial practice and the realities of the courtroom not to know that every good lawyer seeks not only to gain information at voir dire, but also to predispose the jury toward his side of the case? A full reading of the record discloses that this was exactly what this prosecutor was trying to do. He was not attempting to gain information about the jurors and their backgrounds in order to form a basis for challenge, the ostensible primary purpose of voir dire. He was far beyond that; he was attempting to predispose the jurors toward the evidence that the State was planning to offer.

Certainly, it is not inherently wrong for a lawyer to attempt to “sell his case” during the voir dire. However, in the case at hand, the attorney overstepped the bounds of propriety; he “oversold” his case, and for such reason, the case must be tried anew.

But, such is not the point to be made at this juncture. The real point is that lawyers would not exert such efforts in voir dire unless they were satisfied that first impressions are, indeed, lasting impressions. In holding that what transpires in voir dire is, beyond a reasonable doubt, of lesser importance, the majority has pitted itself against the collective wisdom of the trial bar for generations past.

Having rejected Robillard, the majority has presented only one case upon which it places reliance to control its decision, Zaiontz v. State, 700 S.W.2d 303 (Tex.App. —San Antonio 1985, pet. ref’d). The Zaiontz court carefully pointed out that no objection had been lodged in the trial court. In the case at bar, counsel objected and continued to object, all without avail. Further attempts to distinguish Zaiontz would be surplusage. As this dissenter *227reads the majority opinion, the decision contains no guiding authority.

The narrow ground of disagreement between the majority and the dissent is whether the admitted error was harmless and whether it has been established, “beyond a reasonable doubt, that the error made no contribution to the conviction or the punishment.” Tex.R.App.Proc., R. 81(b)(a). I cannot accept that the test has been met. I dissent. The case must be reversed and remanded for new trial.