Casarez v. State

OPINION

WEAVER, Justice.

George Toby Casarez was convicted by a jury of aggravated sexual assault of a child. See Tex.Penal Code Ann. §§ 22.011, 22.021 (Vernon 1989). The jury assessed punishment at twelve years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant brings ten points of error on appeal. We affirm.

By his first point of error, appellant attacks the State’s peremptory strikes of two venirepersons. Appellant claims that such strikes violated the equal protection clause of the Fourteenth Amendment to the United States Constitution because they were made by the State on the basis of the venirepersons’ religious faith, namely their membership in the Pentecostal faith.

This attack springs from occurrences in the trial following appellant’s Batson1 objection. The two jury panel members here in question are black. At the Batson hearing the prosecutor gave racially neutral explanations for striking these two venire-persons. Among the reasons given for striking one member was that she had a brother currently in the Texas penitentiary, she was a postal clerk and she expressed discomfort with the law as it regards sexual assault of a child. Among the reasons given for striking the other member was that his brother had been arrested, he incorrectly completed his juror questionnaire, and the questioning during voir dire left the prosecutor with the impression that he was somewhat slow. The prosecutor also cited as a reason for striking each of the two members that they were Pentecostals. The prosecutor explained that in his experience, Pentecostals often have difficulty assessing punishment. The appellant offered no rebuttal evidence. Following the close of the prosecutor’s testimony, the appellant’s attorney raised the following objection: “I object to the exclusion by the State on peremptory grounds of both Ms. Burton and Mr. Gee because this decision is based in part on an impermissible reason, and that is their membership in the Pentecostal faith.” Appellant’s attorney then argued to the trial court that the Equal Protection Clause of the fourteenth amendment prohibits discrimination on the basis of race or religion, and the reason espoused by the prosecutor constitutes a violation of that amendment. The appellant argued that the State used an impermissible reason for *783striking these venirepersons, their religious faith. Based on that argument he asked the trial court to disqualify the panel and call another one.

The trial court simply denied the Batson challenge without making any reference to appellant’s impermissible religious faith objections. The appellant does not attack the trial court’s Batson ruling on this appeal. Instead, appellant limits his position under point of error one to the argument that the prosecutor’s religious explanation was in and of itself an impermissible reason for exercising the peremptory strikes. Apparently, the appellant would have us apply an expanded version of Batson so as to hold that the religious explanation in this case tainted the jury panel without regards to racial considerations.

Traditional equal protection analysis is not appropriate when applied to peremptory challenges. The Batson decision itself did not apply traditional equal protection analysis; instead, Batson was based on a hybrid form of equal protection because its application was limited “to allegations of impermissible challenge on the basis of race ”. Batson, 476 U.S. at 123, 106 S.Ct. at 1737 (Burger, C.J., dissenting) (emphasis in original). See also Perry v. State, 770 S.W.2d 950, 951-52 (Tex.App. — Fort Worth 1989, no pet.). As Chief Justice Burger noted, “if conventional equal protection principles apply, then presumably defendants could object to exclusions on the basis of not only race, but also sex, age, religious or political affiliation, mental capacity, number of children, living arrangements, and employment in a particular industry or profession.” Batson, 476 U.S. at 124, 106 S.Ct. at 1737 (citations omitted) (emphasis added). According to the Chief Justice, “it is quite probable that every peremptory challenge could be objected to on the basis that, because it excluded a venireman who had some characteristic not shared by the remaining members of the venire, it constituted a ‘classification’ subject to equal protection scrutiny.” Id. 476 U.S. at 124, at 1738.2 The proposition here urged by appellant would, in effect, seriously limit or perhaps do away with peremptory challenges altogether. This we decline to do. The United States Supreme Court refused to do so in the Batson case despite Justice Marshall’s urging that peremptory challenges be eliminated. Batson, 476 U.S. at 101-08, 106 S.Ct. at 1726-29 (Marshall, J., concurring). Instead, the Batson majority recognized the importance of the peremptory challenge and sought to harmonize the conflict between peremptory challenges for which no reason must be stated and its new rule by limiting Bat-son’s holding to instances of peremptory challenges based upon race alone. See id. 476 U.S. at 96, 106 S.Ct. at 1723.

Subsequent United States Supreme Court cases have also limited Batson’s equal protection safeguards to instances of racial discrimination. See Georgia v. McCollum, — U.S. -, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Hernandez v. New York, — U.S. -, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Justice Powell, the author of the majority opinion in the Batson case, has explained that “[o]ur decision in Batson ... was justified by the compelling need to remove all vestiges of invidious racial discrimination in the selection of jurors, ...” Gray v. Mississippi, 481 U.S. 648, 672, 107 S.Ct. 2045, 2059, 95 L.Ed.2d 622, 642 (1987). Relying upon the “unique history of racial discrimination in this country,” Justice O’Connor has also interpreted Batson narrowly. See Brown v. North Carolina, 479 U.S. 940, 941, 107 S.Ct. 423, 423-24, 93 *784L.Ed.2d 373, 374 (1986) (O’Connor, J., concurring in the denial of certiorari). Justice O’Connor explains that “Batson does not touch, indeed, it clearly reaffirms the ordinary rule that a prosecutor may exercise his peremptory strikes for any reason at all. Batson, in my view, depends upon this Nation’s profound commitment to the ideal of racial equality, ...” Id.3 (citation omitted).

As mentioned above, appellant does not attack the sufficiency of the State’s racially neutral explanations on this appeal, and we are not asked to review the sufficiency of any of the explanations given, including whether any group bias explanation was proper with respect to the two Pentecostals who were struck from the panel. However, we observe that when religious affiliation has been challenged as a pretext to racial discrimination, the courts of our state have repeatedly held religious beliefs to be racially neutral reasons for striking potential jurors. See Earhart v. State, 823 S.W.2d 607, 624-25 (Tex.Crim.App.1991), vacated on other grounds, — U.S. -, 113 S.Ct. 3026, 125 L.Ed.2d 715 (1993); Gerber v. State, 845 S.W.2d 460, 465 (Tex.App. — Houston [1st Dist.] 1993, pet. ref’d); Dixon v. State, 828 S.W.2d 42, 45-46 (Tex.App. — Tyler 1991, pet. ref’d); Salazar v. State, 745 S.W.2d 385, 389 (Tex.App. — Fort Worth 1987), rev’d on other grounds, 795 S.W.2d 187 (Tex.Crim.App.1990); Johnson v. State, 740 S.W.2d 868, 871 (Tex.App.— Houston [14th Dist.] 1987, pet. ref’d, untimely filed). See also United States v. De La Rosa, 911 F.2d 985, 990-91 (5th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991). In those cases, the influence of a person’s religious beliefs upon his or her ability to assess punishment was found to be related to the purpose of the trial, and thus, a racially neutral reason for striking the potential juror. See id. We believe those cases lend support to our holding in this case.

Because we do not find any authority supporting the extension of the Batson holding beyond the boundaries of racial discrimination, and because the United States Supreme Court has repeatedly and consistently limited the holding of Bat-son and its progeny to race, we decline to apply an expanded version of Batson to peremptory challenges made on the basis of a venireperson’s religious affiliation.4 Point of error one is overruled.

Points of error two through seven complain of two statements by the prosecutor allegedly commenting on the appellant’s failure to testify at either the guilt/innocence or punishment phases of the trial. Points of error two, three, and four complain of a comment made during the closing argument of the guilt/innocence stage of trial. Points of error five, six, and seven complain of an objection made during the punishment hearing.

The failure of an accused to testify may not be the subject of comment by the prosecution. Montoya v. State, 744 S.W.2d 15, 34 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1227, 108 S.Ct. 2887, 101 L.Ed.2d 921 (1988). Such comment is in violation of the privilege against self-incrimination contained in article I, section 10 of the Texas Constitution and the express provisions of article 38.08 of the Texas Code of Criminal Procedure. In addition to violating the constitution and laws of Texas, a comment on the defendant’s failure to testify constitutes a violation of the Fifth Amendment to the United States Constitution, which is made applicable to the states by the fourteenth amendment. Griffin v. California, *785380 U.S. 609, 611, 85 S.Ct. 1229, 1231, 14 L.Ed.2d 106, 108 (1965); Montoya, 744 S.W.2d at 34.

Appellant’s accomplice, Joe Mendoza, testified against appellant during the guilt/innocence phase of the trial. Appellant did not testify. In the State’s closing argument at the guilt stage, the following occurred:

[PROSECUTOR]: Do you like Joe? [Appellant’s attorney] asked you if you liked Joe. I trust that you don’t. But do you want to give Toby the benefit of your loathing of Joe? You know a lot more about Joe than you do Toby. Don’t give Toby an unfair advantage—
[APPELLANT’S ATTORNEY]: Your Honor, I object to counsel’s comment as a comment on the failure of the Defendant to testify.
THE COURT: Overruled.

Appellant argues in his brief that this complained-of remark was an indirect comment on the defendant’s failure to testify. According to appellant’s argument, the only way the jury could interpret the comment that they knew more about Joe than they did about appellant was that Joe had testified while appellant had not. The State characterizes the remark as an appropriate response to an attack on the credibility of a State’s witness.

In order for an indirect comment to violate the right against self-incrimination, the offending language, when viewed from the jury’s standpoint, must be manifestly intended or be of such a character that the jury would necessarily and naturally take it as a comment on the accused’s failure to testify. Montoya, 744 S.W.2d at 35; Banks v. State, 643 S.W.2d 129, 134 (Tex.Crim.App.1982), cert. denied, 464 U.S. 904, 104 S.Ct. 259, 78 L.Ed.2d 244 (1983). It is not sufficient that the language might be construed as an implied or indirect allusion to the defendant’s failure to testify; it must necessarily refer to the accused’s failure to testify. Montoya, 744 S.W.2d at 35. For an indirect comment to constitute reversible error, it must call for a denial of an assertion of fact or contradictory evidence that only the defendant is in a position to offer. Id.; Short v. State, 671 S.W.2d 888, 890 (Tex.Crim.App.1984). On the other hand, language that can reasonably be construed to refer to a failure to present evidence other than from the accused’s own testimony does not amount to a comment on the failure to testify. Swallow v. State, 829 S.W.2d 223, 225 (Tex.Crim.App.1992).

When viewed from the jury’s standpoint, the comment under attack in points of error two, three, and four does not meet the test to qualify as a comment on the appellant’s failure to testify. The appellant’s attorney attacked Joe Mendoza’s credibility during jury argument at the guilt/innocence stage. In response, the State asked the jury to avoid transferring their dislike of Mendoza, a State witness, to the State. Under these circumstances, the comment was not manifestly intended as a comment on appellant’s failure to testify, or of a character that the jury would necessarily and naturally take it as such comment. Points of error two, three, and four are overruled.

During the punishment phase of the trial, the prosecutor argued in her opening statement that probation was equivalent to no punishment at all. During the appellant’s argument, the following exchange occurred:

[APPELLANT’S ATTORNEY]: I don’t think, frequently, much consideration is given to how this whole situation that we’ve come to thus far affects a person who has gone through a trial. Now, please don’t misunderstand what I’m about to say. I’m not suggesting that a person found guilty of the offense that you have convicted Mr. Casarez of shouldn’t go through a trial, but I do ask you to recognize, first off, that just to this point, Mr. Casarez has certainly learned an object lesson, whatever happens.
[PROSECUTOR]: Excuse me. I have an objection. Your Honor, I object to this line of argument. It deprives the State of the right to cross-examine his client, and we strenuously object. He’s trying to put out matters of evidence.
*786THE COURT: Overruled.
[PROSECUTOR]: The second objection, he’s trying to put matters in evidence which are not in evidence. It’s outside the record.
THE COURT: Overruled.
[APPELLANT’S ATTORNEY]: Your Honor, I object to that comment of counsel because he has just made a comment on the failure of Mr. Casarez to testify.
THE COURT: Overruled.

No instruction to disregard was requested.

Appellant characterizes the State’s remark as a direct comment on appellant’s failure to testify. The State responds that its comment was invited by appellant’s jury argument.

The State may answer jury argument made by opposing counsel even when such response requires the prosecutor to comment on the defendant’s failure to testify. Long v. State, 823 S.W.2d 259, 269 (Tex.Crim.App.1991), cert. denied, — U.S. -, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992); Clarke v. State, 785 S.W.2d 860, 870 (Tex.App. — Fort Worth 1990), aff'd, 811 S.W.2d 99 (Tex.Crim.App.1991). When the appellant’s attorney offers evidence during jury argument that only the appellant could provide, the State may properly respond with comments that infringe appellant’s right against self-incrimination. Long, 823 S.W.2d at 269 (appellant’s attorney argued that attorney did not know what appellant’s state of mind was at time of commission of crime); Hall v. State, 492 S.W.2d 512, 513 (Tex.Crim.App.1973) (appellant’s attorney argued that appellant denied being present at scene of crime when record contained no evidence of any admissions by appellant). In the case before us, appellant’s attorney argued that appellant had “learned an object lesson.” The record contains no evidence supporting that statement. Moreover, only appellant could testify as to any lesson that he may have learned. Therefore, the State’s contested statement was invited by the appellant’s jury argument and does not constitute error. Furthermore, even if the State’s objection could be construed as an uninvited comment, we find any error respecting the same to be harmless under the circumstances of this case, and particularly because the appellant did not request that the jury be instructed to disregard the prosecutor’s comment of which he herein complains. See Long, 823 S.W.2d at 269-70. Points of error five, six, and seven are overruled.

Point of error eight asserts that the trial court erred in denying appellant’s requested jury instruction on mistake of fact. Appellant claims that he reasonably formed a belief that the complainant had consented to the sexual conduct. Appellant asserts that his written statement, which was admitted into evidence, raised the mistake of fact defense on the consent issue. See Woodfox v. State, 779 S.W.2d 434, 435 (Tex.Crim.App.1989).

The complainant was fourteen years old at the time of the sexual assault. Lack of consent is not an element of the offense of aggravated sexual assault of a child. Tex.Penal Code Ann. § 22.021(a)(1)(B) (Vernon 1989); Fancher v. State, 659 S.W.2d 836, 838 (Tex.Crim.App.1983). Nevertheless, the indictment and jury charge in this case both included consent as an essential element of the crime, and thus increased the burden of factual proof on the State. Fancher, 659 S.W.2d at 838.

When the court’s charge requires the jury to find that the assaultive acts of sexual conduct were without the complainant’s consent, an affirmative submission of the issue of mistake of fact as to consent is neither required nor proper. Drakes v. State, 505 S.W.2d 892, 894 (Tex.Crim.App.1974); Leger v. State, 688 S.W.2d 130, 132-33 (Tex.App. — Beaumont 1985, no pet.); Mills v. State, 626 S.W.2d 583, 585 (Tex.App. — Amarillo 1981, pet. ref’d). Therefore, the trial court did not err by refusing to submit appellant’s requested jury instruction.. Point of error eight is overruled.

Point of error nine asserts that the trial court erred by overruling appellant’s objection that the State was striking at the appellant over the shoulder of his counsel. The statement of which appellant com*787plains was made in the form of an objection to the appellant’s closing argument at the guilt/innocence stage of trial:

[APPELLANT’S ATTORNEY]: Let’s talk briefly and finally about Count Two.
[The prosecutorj’s going to tell you that mistake of fact doesn’t apply ... It’s not in the Charge. The Judge has given you the law. You needn’t worry about it. But the Judge tells you and the law tells you that Mr. Casarez to be guilty, must have acted intentionally or knowingly, and those terms are defined.
You’re here to do justice. You determine whether or not your verdict is just under the facts and the evidence.
[PROSECUTOR]: Your Honor, I object insofar as he’s asking the jury to disobey their oath to follow the law and instead substitute their own notions of what justice is.
[APPELLANT’S ATTORNEY]: Your Honor, I object—
THE COURT: Overruled.
[APPELLANT’S ATTORNEY]: And I object because I made no such suggestion and I will make no such suggestion.
THE COURT: The objection has been overruled [appellant’s attorney].
[APPELLANT’S ATTORNEY]: Your Honor, I object to counsel striking at the Defendant over the shoulder of his counsel by suggesting that I have made an improper suggestion to this jury.
THE COURT: Well, it’s overruled.

Proper jury argument falls within one of four distinct categories: (1) summary of the evidence; (2) reasonable deduction from the evidence; (3) in response to argument of opposing counsel; and (4) plea for law enforcement. Long v. State, 823 S.W.2d at 267; Bonner v. State, 820 S.W.2d 25, 27 (Tex.App.—Houston [14th Dist.] 1991, pet. ref’d). If the argument complained of does not fit into one of these four categories, the improper argument will not constitute reversible error unless, in light of the record as a whole, the argument is extreme, manifestly improper, injects new and harmful facts into the case or violates a mandatory statutory provision and is thus so inflammatory that its prejudicial effect cannot reasonably be cured by judicial instruction to disregard the argument. Long, 823 S.W.2d at 267; Bonner, 820 S.W.2d at 28.

The State’s objection falls into the category of responding to the argument of opposing counsel. Furthermore, the statement did not meet any of the criteria of harmful jury argument. Point of error nine is overruled.

Point of error ten alleges that the trial court erred by overruling the appellant’s objection to the State’s argument inviting the jury to speculate on extrinsic offenses. The evidence established that after the complainant escaped from appellant and his accomplice, the two men drove around the neighborhood looking for her. During argument at the punishment phase of trial, the prosecutor made the following comment:

Perhaps, lastly, folks, exercise some reasonable deductions from the evidence that you’ve heard. Now, what if Toby and Joe had caught back up with [the complainant]? You heard about what amounts to a night of terror, and I am not going to try to be dramatic about it. You heard the evidence. You know what happened to her. You heard about how she’s further had nightmares, but concern yourselves, deduce from the evidence what would have happened if they had caught her, what more violations would have occurred to her. What more terror and what more might they have done to make sure she didn’t come back to see you.
[APPELLANT’S ATTORNEY]: Your Honor, I’m going to object to counsel’s asking this jury to speculate on events that did not happen and punish for events that did not happen.
THE COURT: Overruled.

As an exception to the general rule, evidence of extraneous offenses may be admissible to show the context in which the criminal act occurred. Wilkerson v. State, 736 S.W.2d 656, 659-60 (Tex.Crim.App.1987). The reasoning giving rise to this exception provides that the jury is enti-*788tied to know all the relevant facts and circumstances surrounding the charged offense because “an offense is not tried in a vacuum.” Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App.1986). That reasoning further provides that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of the act so that they may realistically evaluate the evidence. Wilkerson, 736 S.W.2d at 660 (quoting Rios v. State, 557 S.W.2d 87 (Tex.Crim.App.1977)).

While the State has wide latitude to draw reasonable inferences from the evidence, Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988), the State may not simply point out the existence of a collateral offense and thereby request additional punishment for that collateral offense. Lomas v. State, 707 S.W.2d 566, 569 (Tex.Crim.App.1986). Instead, under the doctrine of res gestae, the prosecution is entitled to elicit testimony on the facts and circumstances surrounding the commission of the offense and may then ask the jury to consider how these facts and circumstances serve as aggravating or mitigating factors in determining the severity of the punishment to be assessed for the offense charged. Wilkerson v. State, 736 S.W.2d at 659-661; Winkfield v. State, 792 S.W.2d 727, 730 (Tex.App — Corpus Christi 1990, pet. ref'd). In order for such argument to constitute reversible error, the prosecutor must go beyond the bounds of asking the jury to consider the circumstances surrounding the charged offense in fixing punishment. Lomas, 707 S.W.2d at 570; Rushing v. State, 813 S.W.2d 646, 650 (Tex.App. — Houston [14th Dist.] 1991, pet. ref’d). A comment allegedly referring to an extrinsic offense is not objectionable absent a specific request to punish for that extrinsic offense. See Ellis v. State, 726 S.W.2d 39, 47 (Tex.Crim.App.1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1388, 94 L.Ed.2d 702 (1987).

Appellant argues that there was no direct evidence that appellant and his accomplice tried to find the complainant after the assault with the intent to harm her. Appellant’s attorney argued at the close of the guilt/innoeence phase of trial that appellant’s later pursuit of complainant was inconsistent with guilt. The record contains evidence supporting the opposite conclusion, however. The complainant testified that the two men had threatened to kill her that night, and that Joe Mendoza had threatened her with a knife. Mendoza testified that while the two men drove through the neighborhood looking for the complainant, appellant threw the complainant’s clothes out of the car. This conduct aggravates the seriousness of the offense charged because it suggests that appellant had no remorse for his crime and was aware of his own culpability. Therefore, it was reasonable for the State to infer from the evidence that the two men intended to inflict harm upon the complainant had they found her and such jury argument was proper in order to establish the context in which the crime was committed. Moreover, the State did not ask for additional punishment in its argument mentioning appellant’s search for the complainant; instead, the State invited the jury to consider the facts and circumstances surrounding the sexual assault. Thus, the State’s comment did not constitute error. Point of error ten is overruled.

The judgment of the trial court is affirmed.

. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

. The Batson Court did not engage in the traditional equal protection analytical procedure of applying a strict scrutiny test to classifications based upon race to determine whether such classifications were suitably tailored to serve a compelling state interest. Batson, 476 U.S. at 124-25, 106 S.Ct. at 1738. The Chief Justice noted that it would be difficult to apply conventional equal protection analysis to claims of discriminatory peremptory challenges because some claims would be reviewed under the strict scrutiny test, while others would be reviewed under the intermediate test to determine if they were substantially related to a sufficiently important governmental interest or the rational basis test to determine whether they were a rational means to a legitimate end. Id.

. Justice Brennan interprets Batson more broadly, however. According to Justice Brennan, "[t]he State misses the wider significance of Batson: that the broad discretion afforded prosecutors in the exercise of peremptory challenges may not be abused to accomplish any unconstitutional end." Brown v. North Carolina, 479 U.S. 940, 944-45, 107 S.Ct. 423, 426, 93 L.Ed.2d 373, 375 (1986) (Brennan, J„ dissenting in the denial of certiorari).

. We agree with appellant that the equal protection clause would apply to cases in which persons were systematically excluded from petit jury service on the basis of their religious affiliation. See Juarez v. State, 102 Tex.Crim. 297, 277 S.W. 1091 (1925) (equal protection applies to systematic exclusion of Catholics from grand jury service). This appeal fails to raise the issue of such systematic discrimination, however.