COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00051-CR
ALLEN LEE POLK APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1422278D
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MEMORANDUM OPINION1
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In one issue, Appellant Allen Polk appeals his conviction for theft of
property with a value of less than $1,500. See Act of June 20, 2015, 84th Leg.,
R.S., ch. 1251, § 10, 2015 Tex. Gen. Laws 4208, 4212 (amended 2015)(current
version at Tex. Penal Code Ann. § 31.03(a), (e)(4)(D) (West Supp. 2016)). We
affirm.
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See Tex. R. App. P. 47.4.
Background
On July 16, 2015, Officer Wesley Jackson of the Grand Prairie Police
Department was dispatched to a Valero gas station near a Kroger grocery store 2
on a call reporting a disturbance and a suspect involved in a theft. The
dispatcher described the suspect as a black male wearing a white shirt and red
shorts. When Officer Jackson arrived at the Valero, two other police officers
were already inside the gas station and one of the officers conveyed that there
was a man in the bathroom fitting the description given by the dispatcher.
Appellant subsequently exited the bathroom wearing red shorts and holding a
white shirt and a plastic grocery bag in his hand.
Appellant told the officers that he was waiting for a ride and that he had
found the grocery bag in a dumpster behind the nearby Kroger. When the
officers asked Appellant what was in the bag, he opened it up revealing
unopened packages of makeup inside the bag. Because Kroger inventory-
control labels were still affixed to each of the makeup products, one of the
officers, Roy Morin, took the bag to the Kroger store to inquire as to whether the
makeup had been stolen. When Officer Morin arrived at Kroger, he spoke with
the store manager, Evan Welsh, who confirmed that the makeup had come from
Kroger. Officer Morin then watched a video recording from one of Kroger’s
2
Officer Jackson estimated that the Valero was 100 yards away from the
Kroger.
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surveillance cameras that depicted Appellant walking into Kroger earlier that day
and then leaving without making any purchases.3
From this, the officers determined that the makeup had been stolen and
arrested Appellant. Once Appellant was in custody and taken to the police
department, Detective Jeff Erwin interviewed him.4 Initially, Appellant said he did
not remember going inside Kroger and reiterated that he had picked up the bag
of makeup from the dumpster. Later in the video, Appellant confessed that he
had walked down the makeup aisle, grabbed makeup, and put it in his pockets
with a plan to resell it for cash later on the black market.
Welsh, the store manager, testified that Kroger does not throw away the
type of merchandise that was recovered from Appellant. He also testified that, at
the time it was stolen, the makeup taken by Appellant was still part of their “active
inventory” to be sold, and that even if that makeup was discontinued or otherwise
removed from sale, they would not dispose of it in the dumpster behind the store.
Instead, the items would have been salvaged or donated.
During its initial closing argument, the State reminded the jury that
everybody that is accused in this country of a crime has a right to a
jury trial, a right to an impartial jury of one’s peers to look at the
evidence and make sure that [the State does its] job and that
3
Officer Morin admitted at trial that the surveillance video did not show
Appellant putting any makeup in his pockets or in a bag. There were no
surveillance cameras in the makeup department of the store.
4
A video recording of the interview was admitted into evidence and played
for the jury.
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somebody is not convicted for something that they didn’t do. But
that’s a right that someone has, to have this jury trial.
In his argument, Appellant’s counsel argued that Appellant’s confession was a
false one, perhaps coerced by Detective Erwin, and was not voluntarily made. In
rebuttal, the State reiterated, “Every individual is entitled to a jury trial, every
single person. We hold these rights very dearly. If you want a jury trial, if you’re
accused of something and you want a jury trial, you get it.” But the State later
stated, “This is a man that’s been previously convicted of two felony thefts. He
ain’t no rookie. And he told them, I did it. Now he wants a trial. Now he wants to
walk in here and say it’s a false confession, didn’t mean it.” At that point,
Appellant’s counsel objected on the basis that this was an improper comment on
Appellant’s invocation of his right to a jury trial. His objection was overruled.
The jury found Appellant guilty and sentenced him to seven years’
confinement.
Discussion
In his sole issue, Appellant contends that the trial court erred in overruling
his objection to the prosecutor’s comment during closing argument. Appellant
argues on appeal, as he did before the trial court, that this statement was an
improper comment on Appellant’s exercise of his right to a jury trial.
To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; or
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(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim.
App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d
230, 231 (Tex. Crim. App. 1973). Arguments that suggest that a defendant
should be punished or penalized for exercising his right to a trial by jury are
impermissible. Carlock v. State, 8 S.W.3d 717, 724 (Tex. App.—Waco 1999,
pet. ref’d).
The State argues that the prosecutor’s statements were not improper but
were made in response to Appellant’s assertions that he had falsely confessed to
Detective Erwin. Specifically, the State points to the following excerpt of
Appellant’s counsel’s closing argument:
And how do we know that the second half of the interview,
confession is a made-up tale by Mr. Polk telling Officer Erwin what
he wants to hear because he understands the system, and because
he was promised that things would go easier on him if he did? He
talks about candy bars and putting soap on a counter—or on the
counter. Well, that’s not in the video so we know that didn’t happen.
That’s what tells you this is a made-up story that Mr. Polk made to
satisfy him to help it go a little easier on him.
At the end, what was the last question Mr. Polk asked? They got me
on camera taking this makeup? Officer Erwin said, Yeah. Well, we
know that’s not true. You saw the video. That’s just plainly not true.
Not true.
Why would somebody confess to something that they didn’t do?
Because he knows the system. He knows he’s a black man, he’s
got prior thefts, he’s in possession of now what he knows is stolen
property that he got out of the Dumpster. He knows what’s going to
happen. He doesn’t have a chance. So he tells the man what he
wants to hear so it might go a little easier on him.
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While the prosecutor’s statements may straddle the line of permissible
argument, they do not rise to the level of an improper comment in these
circumstances. First, the State was entitled to respond to Appellant’s arguments
that his confession was false. See Felder, 848 S.W.2d at 94–95. Second, while
the prosecutor touched upon Appellant’s invocation of his right to a jury trial by
saying, “Now he wants a trial,” the prosecutor’s argument stopped short of
suggesting that he should be penalized for doing so. “When a comment is made
by a prosecutor regarding a defendant’s election to proceed with a jury trial, the
concern of the court centers around whether the prosecutor had, in effect, asked
the jury to punish or otherwise penalize the defendant for exercising his right to a
trial by jury.” Carlock, 8 S.W.3d at 724.
Perhaps the most commonly-cited example of a case in which a
prosecutor’s statements were found to have improperly commented on the
defendant’s exercise of his right to a jury trial is Villarreal v. State, 860 S.W.2d
647, 649 (Tex. App.—Waco 1993, no pet.). In Villarreal, a prosecution for
aggravated sexual assault, the prosecutor stated during closing argument, “This
man [the defendant] made a conscious decision to rape a ten-year-old child. But
he didn’t do it just once. He forced her to have to come into this courtroom in
front of a bunch of strangers.” Id. In that case, the Waco court held that the
prosecutor’s comments implied that the defendant should be penalized for
exercising his right to a jury trial by “equat[ing] the fulfillment of [the responsibility
to testify as a witness] with being subject to [a] rape,” describing that argument
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as “the type of argument that should be considered extreme and manifestly
improper and thus so inflammatory that its prejudicial effect could not reasonably
be removed from the minds of the jurors by the instruction given.” Id. Thus, the
court held that the trial court had erred in denying the defendant’s motion for
mistrial, and the trial court’s judgment as to punishment was reversed. Id.
Similarly, in Wages v. State, 703 S.W.2d 736, 741 (Tex. App.—Houston [14th
Dist.] 1985, pet. dism’d), the prosecutor’s statements to the jury were held to be
improper when he stated, “You didn’t ask to spend four days down here at the
courthouse this week. You didn’t get a subpoena to come down and be a juror. I
didn’t ask to be here. The judge didn’t ask to be here. [The defendant] has
brought us all here today and for the last four days.”
Comparatively, in the case of Head v. State, No. 03-10-00414-CR, 2013
WL 1831576, at *7 (Tex. App.—Austin Apr. 24, 2013, no pet.) (mem. op., not
designated for publication), the prosecutor’s statements regarding a witness’s
decision to plead guilty to related charges and not “mak[e] someone go through a
jury trial” were not improper because they were made in rebuttal to the
defendant’s argument that the witness could not be trusted because he had
received some sort of deal in exchange for testifying.
In the context present here, the prosecutor’s statements did not constitute
an improper comment on Appellant’s exercise of his right to a jury trial.
Appellant’s counsel argued that Appellant’s confession to Officer Erwin was a
false confession, made only in the hope that Officer Erwin would take it easy on
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him. The State was permitted to respond to that argument and did so when the
prosecutor simply argued that Appellant had confessed and then changed his
story at trial. We therefore overrule Appellant’s sole issue on appeal.
Conclusion
Having overruled Appellant’s sole issue, we affirm the judgment of the trial
court.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 3, 2016
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