Escobar, Jesus
PD-0642-15
| Tex. App. | Jul 1, 2015Background
- Jesús Escobar, a 48‑year‑old with no criminal history, was convicted by a jury for delivery of less than one‑fourth ounce of marijuana after an undercover buy‑bust; sentenced to 120 days in jail.
- During voir dire the prosecutor told the venire he only tries cases he believes in and invoked a high‑profile ADA (Mike Anderson) as someone who “never ha[s] to try a case that I don't believe in,” implying personal belief in guilt.
- Escobar did not object at trial to the prosecutor’s voir dire remarks; the prosecutor later explained burden of proof, presumption of innocence, and right to a fair trial during voir dire.
- On appeal the First Court of Appeals agreed the voir dire comment was improper but held Escobar waived review by failing to object and that the error was not fundamental given the remainder of the record.
- The court also rejected Escobar’s ineffective‑assistance claim, concluding the record did not show deficient performance or prejudice from counsel’s failure to object.
Issues
| Issue | Plaintiff's Argument (Escobar) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether prosecutor’s voir dire statement conveying personal belief in defendant’s guilt was improper fundamental (no objection) | The comment improperly injected the prosecutor’s personal belief and moral righteousness, tainting presumption of innocence and, given venire views favoring marijuana legalization and invocation of a sympathetic ADA, amounted to fundamental error | The remark was improper but cured by subsequent explanations of burden of proof, presumption of innocence, and the whole record; thus not fundamental and review was waived for lack of objection | Court: Statement was improper but not fundamental error; Escobar forfeited appellate review by not objecting |
| Whether voir dire impropriety required trial court to quash venire or require other remedial action | The remarks prejudiced jury selection and required reversal | The context (prompt clarifications, admonitions in precedent) negated harm; no reversal warranted | Court: No reversal; error cured by context and explanations |
| Whether trial counsel’s failure to object constituted ineffective assistance of counsel | Failure to object was deficient and prejudicial because the impropriety was fundamental | Record shows strategic reasons could explain no objection; Escobar cannot show prejudice as error was not fundamental | Court: Ineffective‑assistance claim rejected for lack of record showing deficient performance or prejudice |
| Whether Blue and related authorities compel treating prosecutor voir‑dire statements as automatic fundamental error | Prosecutor’s voir‑dire is indistinguishable from judge’s comments in Blue and should be treated the same | Blue is limited and context matters; many cases hold cure is possible and objection required to preserve error | Court: Blue not controlling; context and corrective statements defeat fundamental‑error claim |
Key Cases Cited
- Fowler v. State, 500 S.W.2d 643 (Tex. Crim. App. 1973) (prosecutor may not state personal belief in defendant’s guilt)
- Clayton v. State, 502 S.W.2d 755 (Tex. Crim. App. 1973) (improper for prosecutor to say he would not prosecute someone he did not know in his heart to be guilty)
- Mendoza v. State, 552 S.W.2d 444 (Tex. Crim. App. 1977) (voir dire remarks by prosecutor examined in light of subsequent clarifications; cure possible)
- Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (trial judge’s voir dire comments can be fundamental error when they taint presumption of innocence)
- Williams v. State, 417 S.W.3d 162 (Tex. App.—Houston [1st Dist.] 2013) (prosecutor’s personal‑belief voir‑dire comment improper but curable with prompt instruction/clarification)
- Beltran v. State, 99 S.W.3d 807 (Tex. App.—Houston [14th Dist.] 2003) (no fundamental error where defense counsel’s immediate response mitigated prosecutor’s improper voir‑dire remark)
- Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996) (failure to object to jury argument generally forfeits appellate complaint)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
- Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App. 2012) (appellate courts should not find counsel ineffective without opportunity for trial counsel to explain strategy)