Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1/9/2015 11:02:43 AM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-14-0884-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 1/9/2015 11:02:43 AM CHRISTOPHER PRINE CLERK
NO. 01-14-0884-CR NO. 01-14-0884-CR NO. 01-14-0884-CR NO. 01-14-0884-CR IN THE COURT OF APPEALS FIRST JUDICIAL DISTRICT AT HOUSTON, TEXAS ------------------------------------------------------------------------------------------------------
ERIK FORREST FRIEND Appellant, VS.
THE STATE OF TEXAS, Appellee.
----------------------------------------------------------------------------------------------------
ON APPEAL FROM COUNTY COURT AT LAW NO. 3 OF BRAZORIA COUNTY, TEXAS ------------------------------------------------------------------------------------------------------
BRIEF FOR APPELLANT ------------------------------------------------------------------------------------------------------
BRIAN W. WICE BRIAN W. WICE BRIAN W. WICE BRIAN W. WICE The Lyric Centre 440 Louisiana Suite 900 Houston, Texas 77002-1635 (713) 524-9922 PHONE (713) 236-7768 FAX COUNSEL FOR APPELLANT ORAL ARGUMENT REQUESTED ORAL ARGUMENT REQUESTED ORAL ARGUMENT REQUESTED ORAL ARGUMENT REQUESTED *2 IDENTIFICATION OF THE PARTIES IDENTIFICATION OF THE PARTIES IDENTIFICATION OF THE PARTIES IDENTIFICATION OF THE PARTIES
Pursuant to T EX .R.A PP .P.... 38.1(a), a list of the names and addresses of all interested parties is provided below so the members of this
Honorable Court may determine whether they are disqualified to serve or
should recuse themselves from participating in the decision of this case.
Complainant: Complainant: Complainant: Complainant: the State of Texas Appellant or criminal Defendant: Appellant or criminal Defendant: Appellant or criminal Defendant: Appellant or criminal Defendant: Erik Forrest Friend Trial counsel for Appellant: Trial counsel for Appellant: Trial counsel for Appellant: Trial counsel for Appellant: Steve Gonzalez Jed Silverman 1520 Texas 6 1221 Studewood Alvin, Texas 77511 Houston, Texas 77008 Counsel on Appeal for the Appellant: Counsel on Appeal for the Appellant: Counsel on Appeal for the Appellant: Counsel on Appeal for the Appellant: Brian W. Wice 440 Louisiana Suite 900 Houston, Texas 77002-1635 Counsel for the State: Counsel for the State: Counsel for the State: Counsel for the State: Aaron Perry & Rachel Schneider Brazoria County District Attorney’s Office 111 East Locust Fourth Floor Angleton, Texas 77515 Trial Judge: Trial Judge: Trial Judge: Trial Judge: Honorable Jeremy Warren Presiding Judge County Court at Law No. 3 Brazoria County, Texas i
TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF CONTENTS PAGEPAGEPAGEPAGE IDENTIFICATION OF THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . i
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
POINT OF ERROR NUMBER ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The trial court erred in overruling Appellant’s objection to State’s Exhibit No. 2 in violation of Art. 38.22, § 2(b) of the Code of Criminal Procedure, because it failed to show on its face that Appellant knowingly, intelligently, and voluntarily waived all of those rights set out in Art. 38.22, § 2(a)(1-5).
POINT OF ERROR NUMBER TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The trial court erred in overruling Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised his right to silence, in violation of the Fifth Amendment to the United States Constitution.
POINT OF ERROR NUMBER THREE . . . . . . . . . . . . . . . . . . . . . . . . . 6
The trial court erred in overruling Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised his right to silence, in violation of Art. I, § 10 of the Texas Constitution.
ii
POINT OF ERROR NUMBER FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The trial court erred in overruling Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised his right to silence, in violation of Rule 401 of the Rules of Evidence.
POINT OF ERROR NUMBER FIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The trial court erred in overruling Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised his right to silence, in violation of Rule 403 of the Rules of Evidence.
S TATEMENT OF F ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. The Hearing Outside the Jury’s Presence . . . . . . . . . . . 7 B. The Trial Court’s Ruling Admitting State’s Exhibit No. 2 . . . . . . . . . . . . . . . . . . . 9 A RGUMENT AND A UTHORITIES . . . . . . . . . . . . . . . . . . . . . . . 10 A. The Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . 10 B. Art. 38.22, § 2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 C. The Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 17 D. Art. I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 E. Rule 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 F. Rule 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 G. This Constitutional Error was Not Harmless Beyond A Reasonable Doubt Pursuant to Rule 44.2(a) . . . . . . . 26 iii *5 H. Alternatively, this Non-Constitutional Error Violated Appellant’s Substantial Rights Pursuant to Rule 44.2(b) . . . . . . . . . . . . . . . . . . 32 POINT OF ERROR NUMBER SIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
The trial court erred in overruling Appellant’s objection after the prosecutor improperly commented on Appellant’s post-arrest silence during final argument of the guilt-innocence stage of trial, in violation of the Fifth Amendment to the United States Constitution.
POINT OF ERROR NUMBER SEVEN . . . . . . . . . . . . . . . . . . . . . . . . 37
The trial court erred in overruling Appellant’s objection after the prosecutor improperly commented on Appellant’s post-arrest silence during final argument of the guilt-innocence stage of trial, in violation of Art. I, § 10 of the Texas Constitution.
S TATEMENT OF F ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 A RGUMENT AND A UTHORITIES . . . . . . . . . . . . . . . . . . . . . . . 38 A. The Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . 38 B. The Prosecutor’s Improper Comment Violated the Fifth Amendment and Art. I, § 10 . . . . . . . . . . . . . 40 C. The Prosecutor’s Improper Final Argument Was Constitutional Error Requiring Reversal . . . . . . . 42 iv *6 POINT OF ERROR NUMBER EIGHT . . . . . . . . . . . . . . . . . . . . . . . . . 48
The trial court erred in denying Appellant’s motion for mistrial after the prosecutor improperly argued that Appellant had “hired a dream team to sit there with him” during final argument of the guilt- innocence stage of trial, in violation of Art. 38.38 of the Code of Criminal Procedure.
S TATEMENT OF F ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 A RGUMENT AND A UTHORITIES . . . . . . . . . . . . . . . . . . . . . . . 50 A. The Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . 50 B. The Prosecutor’s Final Argument Violated Art. 38.38 . 51 C. This Improper Argument Affected Appellant’s Substantial Rights . . . . . . . . . . . . . . . . . . . 53 1. Severity of the Misconduct . . . . . . . . . . . . . . . . . . . . . . . 54 2. Steps Taken to Cure the Misconduct . . . . . . . . . . . . . . . 54 3. Certainty of Conviction Absent the Error . . . . . . . . . . . 55 4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
v *7 INDEX OF AUTHORITIES INDEX OF AUTHORITIES INDEX OF AUTHORITIES INDEX OF AUTHORITIES PAGEPAGEPAGEPAGE CASES: CASES CASES CASES
Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App. 1973) . . . . . . 39,50
Archie v. State, 340 S.W.3d 734 (Tex.Crim.App. 2011) . . . . . . . . . . . . 54
Barnum v. State, 7 S.W.3d 782
(Tex.App.– Amarillo 1999, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 29,45,54
Bhakta v. State, 981 S.W.2d 293
(Tex.App.– San Antonio 1998, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . 41
Booker v. State, 103 S.W.3d 521
(Tex.App.– Fort Worth 2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . 33
Borjan v. State, 787 S.W.2d 53 (Tex.Crim.App. 1990) . . . . . . . . . . 39,51
Breeding v. State, 809 S.W.2d 661
(Tex.App. – Amarillo 1991, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . 10,11
Brown v. State, 270 S.W.3d 564 (Tex.Crim.App. 2008) . . . . . . . . . 39,50
Brown v. State, 757 S.W.2d 739 (Tex.Crim.App. 1988) . . . . . . . . . . . . 22
Brown v. State, 978 S.W.2d 708
(Tex.App.– Amarillo 1998, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 33,45,54
Bruton v. United States, 391 U.S. 123 (1968) . . . . . . . . . . . . . . . . . . . 22
Buitureida v. State, 684 S.W.2d 133
(Tex.App.– Corpus Christi 1984, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 41
Burnett v. State, 88 S.W.3d 633 (Tex.Crim.App. 2002) . . . . . . . . . . . . 33
vi
Bush v. State, 2014 WL 309780
(Tex.App. – San Antonio 2014, no pet.) . . . . . . . . . . . . . . . . . . . . 56,57
Byas v. State, 906 S.W.2d 86
(Tex.App.– Fort Worth 1995, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . 53
Colorado v. Connelly, 479 U.S. 157 (1986) . . . . . . . . . . . . . . . . . . . . . . 13
Conway v. State, 625 S.W.2d 35
(Tex.App.– Eastland 1981, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . 41
Contreras v. State, 915 S.W.2d 510
(Tex.App.– El Paso 1995, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Cooper v. State, 961 S.W.2d 222
(Tex.App.– Houston [1 st Dist.] 1997, pet. ref’d) 20,21,23,28,29,30,44,47
Crocker v. State, 248 S.W.3d 299
(Tex.App.– Houston [1 st Dist.] 2007, pet. ref’d) . . . . . . . . . . . . . . . . . 42
Cruz v. State, 122 S.W.3d 309
(Tex.App. – Houston [1 st Dist.] 2003, pet. ref’d) . . . . . . . . . . . . . . . . 22
Delane v. State, 369 S.W.3d 412
(Tex.App.– Houston [1 st Dist.] 2012, pet. ref’d) . . . . . . . . . . . . . . 32,34
Dinkins v. State, 894 S.W.2d 330 (Tex.Crim.App. 1995) . . . . . . . . . . . 40
Doyle v. Ohio, 426 U.S. 610 (1976) . . . . . . . . . . . . . . . . . . . . . . . 17,18,40
Garcia v. State, 919 S.W.2d 370 (Tex.Crim.App. 1994) . . . . . . . 15,16,29
Garcia v. State, 880 S.W.2d 497
(Tex.App.– Corpus Christi 1984, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 41
Gigliobianco v. State, 210 S.W.3d 637 (Tex.Crim.App. 2006) . . . . . . . 24
vii
Godfrey v. State, 859 S.W.2d 583
(Tex.App.– Houston [14 th Dist.] 1993, pet. ref’d) . . . . . . . . . . . . . 28,44
Gongora v. Thaler, 710 F.3d 267 (5 th Cir. 2013) . . . . . . . . . . . . . . . 44,46
Gray v. State, 986 S.W.2d 814
(Tex.App.– Beaumont 1999, no pet.) . . . . . . . . . . 19,20,29,30,46,52,56
Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997) . . . . . . . . . . . 11
Hadden v. State, 829 S.W.2d 838
(Tex.App.– Corpus Christi 1992, pet. ref’d) . . . . . . . . . . . . . . . . . 27,43
Hampton v. State, 121 S.W.3d 778
(Tex.App.– Austin 2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Hardie v. State, 807 S.W.2d 319 (Tex.Crim.App. 1991) 18,20,21,23,25,52
Harris v. State, 790 S.W.2d 652 (Tex.Crim.App. 1989) 26,27,31,42,43,47
Harris v. State, 122 S.W.3d 871
(Tex.App.– Fort Worth 2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 39,50
Hebert v. State, 836 S.W.2d 252
(Tex.App.– Houston [1 st Dist.] 1992, pet. ref’d) . . . . . . . . . . . . . . . . . 11
Jamail v. State, 787 S.W.2d 380 (Tex.Crim.App. 1990),
overruled on other grounds,
Hardie v. State, 807 S.W.2d 319 (Tex.Crim.App. 1991) . . . . . . . 23,25
Johnson v. State, 43 S.W.3d 1 (Tex.Crim.App. 2001) . . . . . . . . . . . . . 33
Joseph v. State, 309 S.W.3d 20 (Tex.Crim.App. 2010) . . . . . . . . . . . . . 17
Kalisz v. State, 32 S.W.3d 718
(Tex.App.– Houston [14 th Dist.] 2000, pet. ref’d) . . . . . . . . . . . . . 18,52
viii
Kelly v. State, 321 S.W.3d 583
(Tex.App.– Houston [14 th Dist.] 2010, no pet.) . . . . . . . . . . . . . . . . . 55
King v. State, 953 S.W.2d 266 (Tex.Crim.App. 1997) . . . . . . . . . . 32,53
Lajoie v. State, 237 S.W.3d 345
(Tex.App.– Fort Worth 2007, no pet.) . . . . . . . . . . . . . . . . . . . 23,26,36
Leos v. State, 883 S.W.2d 209 (Tex.Crim.App. 1994) . . . . . . . . . . 27,43
Lopez v. State, 314 S.W.3d 54
(Tex.App.– San Antonio 2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . 15
Loy v. State, 982 S.W.2d 616
(Tex.App.– Houston [1 st Dist.] 1998, no pet.) . 19,28,29,30,44,47,52,56
Marsh v. State, 115 S.W.3d 709
(Tex.App.– Austin 2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . 28,45
Mayes v. State, 816 S.W.2d 79 (Tex.Crim.App. 1991) . . . . . . . . . . . . . 22
McCarthy v. State, 65 S.W.3d 47 (Tex.Crim.App. 2001) . . . . . . . . . . . 32
McGautha v. California, 402 U.S. 183 (1971) . . . . . . . . . . . . . . . . . . . . 12
McKay v. State, 707 S.W.2d 23 (Tex.Crim.App. 1985) . . . . . . . . . . . . 55
Miranda v. Arizona, 384 U.S. 436 (1966) . . . . . . . . . . . . . 13,14,17,18,40
Montgomery v, State, 810 S.W.2d 372 (Tex.Crim.App. 1991) . . . . 11,24
Moran v. Burbine, 475 U.S. 412 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 14
Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998) . . . . . . . . 53,57
Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App. 2002) . . . . . . . . . . . . 33
ix
Nelms v. State, 834 S.W.2d 110
(Tex.App. – Houston [1 st Dist.] 1992, pet. ref’d) . . . . . . . . . . . . . . . . 34
North Carolina v. Butler, 441 U.S. 369 (1979) . . . . . . . . . . . . . . . . . . . 13
Opp v. State, 36 S.W.3d 158
(Tex.App.– Houston [1 st Dist.] 2000, pet. ref’d) . . . . . . . . . . . . . . . . . 29
Peak v. State, 57 S.W.3d 14
(Tex.App.– Houston 14 th Dist.] 2001, pet. ref’d) . . . . . . . . . . . . . . . . 45
Peters v. State, 31 S.W.3d 704
(Tex.App.– Houston [1 st Dist.] 2000, pet. ref’d) . . . . . . . . . . . . . . . . . 35
Pollard v. State, 255 S.W.3d 184 (Tex.App.– San Antonio, 2008)
aff’d , 277 S.W.3d 25 (Tex.Crim.App. 2009) . . . . . . . . . . . . . . . . . . . . 36
Reese v. State, 33 S.W.3d 238 (Tex.Crim.App. 2000) . . . . . . . . . . . . . 25
Rhyne v. State, 387 S.W.3d 896
(Tex.App.– Fort Worth 2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . 34
Russell v. State, 113 S.W.3d 530
(Tex.App.– Fort Worth 2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . 25
Sanchez v. State, 707 S.W.2d 575 (Tex.Crim.App. 1986) . . . . . . . . . . 21
State v. Kelly, 204 S.W.3d 808 (Tex.Crim.App. 2006) . . . . . . . . . . . . . 11
State v. Mechler, 153 S.W.3d 435 (Tex.Crim.App. 2005) . . . . . . . . . . . 25
Temple v. State, 342 S.W.3d 572
(Tex.App.– Houston [14 th Dist.] 2010
aff’d , 390 S.W.3d 341 (Tex.Crim.App. 2013) . . . . . . . . . . . . . . . . . . . 42
Thompson v. State, 89 S.W.3d 843
(Tex.App.– Houston [1 st Dist.] 2002, pet. ref’d) . . . . . . . . . . . . . . 55,57
x
United States v. Lane, 474 U.S. 438 (1986) . . . . . . . . . . . . . . . . . . . . . 33
United States v. Murrah, 888 F.2d 24 (5 th Cir. 1989) . . . . . . . . . . 39,51
United States v. Walker, 772 F.2d 1172 (5 th Cir. 1985) . . . . . . . . . 11,12
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) . . . . . . . . . . . . . . . . . . 12
Washington v. State, 16 S.W.3d 70
(Tex.App. – Houston [1 st Dist.] 2000, pet. ref’d) . . . . . . . . . . . 39,51,54
Watts v. State, 371 S.W.3d 448
(Tex.App.– Houston [14 th Dist.] 2012, no pet.) . . . . . . . . . . . . . . . . . 57
West v. State, 124 S.W.3d 732
(Tex.App.– Houston [1 st Dist.] 2003, pet. ref’d) . . . . . . . . . . . . . . . . . 36
Willover v. State, 70 S.W.3d 841 (Tex.Crim.App. 2002) . . . . . . . . . . . 10
Wilson v. State, ___ S.W.3d ___, 2014 WL 6601218
(Tex.App. – Houston [1 st Dist] November 20, 2014, pet. filed) . . . . . 47
Wilton v. Seven Falls Co., 515 U.S. 277 (1995) . . . . . . . . . . . . . . . . . . 12
Wyborny v. State, 209 S.W.3d 285
(Tex.App.– Houston [1 st Dist.] 2006, pet. ref’d) . . . . . . . . . . . . . . . . . 40
Young v. State, 137 S.W.3d 65 (Tex.Crim.App. 2004) . . . . . . . . . . . . . 54
York v. State, 2008 WL 2677368
(Tex.Crim.App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
xi
TEXAS CODE OF CRIMINAL PROCEDURE: TEXAS CODE OF CRIMINAL PROCEDURE TEXAS CODE OF CRIMINAL PROCEDURE TEXAS CODE OF CRIMINAL PROCEDURE
Art. 38.22, §2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9,13,14,16
Art. 38.22, §2(b) . . . . . . . . . . . . . . . . . . 4,8,9,12,13,14,15,16,17,26,27,29
Art. 38.38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,51,52,53,55
TEXAS RULES OF APPELLATE PROCEDURE: TEXAS RULES OF APPELLATE PROCEDURE TEXAS RULES OF APPELLATE PROCEDURE TEXAS RULES OF APPELLATE PROCEDURE
Rule 39.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Rule 44.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,26,42
Rule 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,32,33
TEXAS RULES OF EVIDENCE: TEXAS RULES OF EVIDENCE TEXAS RULES OF EVIDENCE TEXAS RULES OF EVIDENCE
Rule 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,8,21,24,32
Rule 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Rule 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,8,24,32,35
UNITED STATES CONSTITUTION: UNITED STATES CONSTITUTION UNITED STATES CONSTITUTION UNITED STATES CONSTITUTION
A MEND . V . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,8,9,17,20,21,26,40,41,42
A MEND . XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
TEXAS CONSTITUTION TEXAS CONSTITUTION TEXAS CONSTITUTION TEXAS CONSTITUTION Art. I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,8,9,20,21,26,40,41,42
MISCELLANEOUS: MISCELLANEOUS MISCELLANEOUS MISCELLANEOUS Weinstein & Berger, W EINSTEIN ’ S F EDERAL E VIDENCE (2 nd ed. 2000) . 22
xii *14 STATEMENT REGARDING ORAL ARGUMENT STATEMENT REGARDING ORAL ARGUMENT STATEMENT REGARDING ORAL ARGUMENT STATEMENT REGARDING ORAL ARGUMENT This case presents important issues regarding the admission of evidence that the accused invoked his constitutional right to silence while
in custody, and the prosecutor’s ability to comment on the invocation of
this right in final argument. Because oral argument would significantly
assist the Court in its decision-making process, argument is warranted in
this matter. SeeSeeSeeSee T EX .R.A PP .P. 39.1.
STATEMENT OF THE CASE STATEMENT OF THE CASE STATEMENT OF THE CASE STATEMENT OF THE CASE Appellant was charged by information with the misdemeanor offense of driving while intoxicated alleged to have been committed on July 4,
2013. (CR 8). Appellant entered a plea of not guilty. [1] (2 RR 7).
On October 16, 2014, the jury found Appellant guilty. (CR 133 ).
That same day, jurors assessed Appellant’s punishment at 30 days in jail
and a $7,500 fine, and ordered both the fine and jail time probated for a
period of 15 months. (CR 145, 149). The trial court’s certification of
appeal, (CR 152), and notice of appeal, (Supp. CR 4), were timely filed.
*15 APPELLANT’S POINTS OF ERROR APPELLANT’S POINTS OF ERROR APPELLANT’S POINTS OF ERROR APPELLANT’S POINTS OF ERROR POINT OF ERROR NUMBER ONE POINT OF ERROR NUMBER ONE POINT OF ERROR NUMBER ONE POINT OF ERROR NUMBER ONE The trial court erred in overruling Appellant’s objection to State’s Exhibit No. 2 in violation of Art. 38.22, § 2(b) of the Code of Criminal Procedure, because it failed to show on its face that Appellant knowingly, intelligently, and voluntarily waived all of those rights set out in Art. 38.22, § 2(a)(1-5). POINT OF ERROR NUMBER TWO POINT OF ERROR NUMBER TWO POINT OF ERROR NUMBER TWO POINT OF ERROR NUMBER TWO The trial court erred in overruling Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised his right to silence, in violation of the Fifth Amendment to the United States Constitution.
POINT OF ERROR NUMBER THREE POINT OF ERROR NUMBER THREE POINT OF ERROR NUMBER THREE POINT OF ERROR NUMBER THREE The trial court erred in overruling Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised his right to silence, in violation of Art. I, § 10 of the Texas Constitution.
POINT OF ERROR NUMBER FOUR POINT OF ERROR NUMBER FOUR POINT OF ERROR NUMBER FOUR POINT OF ERROR NUMBER FOUR The trial court erred in overruling Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised his right to silence, in violation of Rule 401 of the Rules of Evidence.
POINT OF ERROR NUMBER FIVE POINT OF ERROR NUMBER FIVE POINT OF ERROR NUMBER FIVE POINT OF ERROR NUMBER FIVE The trial court erred in overruling Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised his right to silence, in violation of Rule 403 of the Rules of Evidence.
POINT OF ERROR NUMBER SIX POINT OF ERROR NUMBER SIX POINT OF ERROR NUMBER SIX POINT OF ERROR NUMBER SIX The trial court erred in overruling Appellant’s objection after the prosecutor improperly commented on Appellant’s post-arrest silence during final argument of the guilt-innocence stage of trial, in violation of the Fifth Amendment to the United States Constitution.
POINT OF ERROR NUMBER SEVEN POINT OF ERROR NUMBER SEVEN POINT OF ERROR NUMBER SEVEN POINT OF ERROR NUMBER SEVEN The trial court erred in overruling Appellant’s objection after the prosecutor improperly commented on Appellant’s post-arrest silence during final argument of the guilt-innocence stage of trial, in violation of Art. I, § 10 of the Texas Constitution.
POINT OF ERROR NUMBER EIGHT POINT OF ERROR NUMBER EIGHT POINT OF ERROR NUMBER EIGHT POINT OF ERROR NUMBER EIGHT The trial court erred in denying Appellant’s motion for mistrial after the prosecutor improperly argued that Appellant had “hired a dream team to sit there with him” during final argument of the guilt- innocence stage of trial, in violation of Art. 38.38 of the Code of Criminal Procedure.
SUMMARY OF THE ARGUMENT SUMMARY OF THE ARGUMENT SUMMARY OF THE ARGUMENT SUMMARY OF THE ARGUMENT 1-5.1-5.1-5.1-5. The trial court erred in overruling Appellant’s objections to State’s
Exhibit No. 2 because it failed to show on its face, the knowing, intelligent
and voluntary waiver of his constitutional rights required by Art. 38.22,
§ 2(b) of the Code of Criminal Procedure. The exhibit also was subject to
exclusion under the Fifth Amendment to the United States Constitution
and Art. I, § 10 of the Texas Constitution because it improperly directed
the jury’s attention to Appellant’s state and federally-protected rights to
be free from compulsory self-incrimination. Evidence that Appellant
invoked his constitutional right to silence is clearly inadmissible because
the jury may have construed it adversely to him by improperly considering
it as an inference of guilt. The exhibit was also inadmissible in the face of
Appellant’s objection under Rule 401 of the Rules of Evidence because his
exercise of the right to silence carried no probative value and did not make
any fact of consequence to this trial more or less likely. The exhibit was
also subject to exclusion pursuant to Rule 403 of the Rules of Evidence,
because the prejudicial effect of evidence that Appellant invoked his right
to silence clearly outweighed its probative value, if any. The admission of
the exhibit over Appellant’s art. 38.22, § 2(b) and Fifth Amendment and
art. I, § 10 objections was constitutional error that was not harmless
beyond a reasonable doubt. Alternatively, its admission over Appellant’s
rule 401 and 403 objections affected his substantial rights.
6-7.6-7.6-7.6-7. The trial court erred in overruling Appellant’s objection when the
prosecutor improperly commented on his post-arrest silence in summation
at the guilt-innocence stage, in violation of the Fifth Amendment to the
United States Constitution and Art. I, § 10 of the Texas Constitution. The
argument clearly penalized Appellant for exercising his state and federal
constitutional rights to remain silent. Because all of the rule 44.2(a) harm
factors fall on Appellant’s side of the ledger, this constitutional error was
not harmless beyond a reasonable doubt.
8.8.8.8. The trial court erred in denying Appellant’s motion for mistrial after
the prosecutor improperly argued that Appellant had “hired a dream team
to sit there with him” during final argument in the guilt-innocence stage,
in violation of Art. 38.38 of the Code of Criminal Procedure by improperly
alluding to Appellant having hired counsel. Because this argument was
inherently inflammatory, and could not have been cured by an instruction
to disregard, and because the certainty of conviction absent this comment
was minimal, a mistrial was the only remedy to cure this misconduct.
POINT OF ERROR NUMBER ONE POINT OF ERROR NUMBER ONE POINT OF ERROR NUMBER ONE POINT OF ERROR NUMBER ONE The trial court erred in overruling Appellant’s objection to State’s Exhibit No. 2 in violation of Art. 38.22, § 2(b) of the Code of Criminal Procedure, because it failed to show on its face that Appellant knowingly, intelligently, and voluntarily waived all of those rights set out in Art. 38.22, § 2(a)(1-5). POINT OF ERROR NUMBER TWO POINT OF ERROR NUMBER TWO POINT OF ERROR NUMBER TWO POINT OF ERROR NUMBER TWO The trial court erred in overruling Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised his right to silence, in violation of the Fifth Amendment to the United States Constitution.
POINT OF ERROR NUMBER THREE POINT OF ERROR NUMBER THREE POINT OF ERROR NUMBER THREE POINT OF ERROR NUMBER THREE The trial court erred in overruling Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised his right to silence, in violation of Art. I, § 10 of the Texas Constitution.
POINT OF ERROR NUMBER FOUR POINT OF ERROR NUMBER FOUR POINT OF ERROR NUMBER FOUR POINT OF ERROR NUMBER FOUR The trial court erred in overruling Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised his right to silence, in violation of Rule 401 of the Rules of Evidence.
POINT OF ERROR NUMBER FIVE POINT OF ERROR NUMBER FIVE POINT OF ERROR NUMBER FIVE POINT OF ERROR NUMBER FIVE The trial court erred in overruling Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised his right to silence, in violation of Rule 403 of the Rules of Evidence.
STATEMENT OF FACTS STATEMENT OF FACTS STATEMENT OF FACTS STATEMENT OF FACTS A. The Hearing Outside the Jury’s Presence
Department of Public Safety Trooper Joel Gonzalez identified State’s Exhibit No. 2 as a “DWI I NTERVIEW W ITH L EGAL W ARNINGS ,” that he gave
to Appellant while the latter was in custody at the Oyster Creek Jail. (3
RR 203, 211). Gonzalez explained each of the warnings to Appellant, who
stated that he understood them. (3 RR 203). He opined that Appellant
knowingly, intelligently and voluntarily waived his rights, and agreed to
speak to Gonzalez, after Appellant signed the document. (3 RR 203).
Gonzalez admitted that the document did not contain Appellant’s initials indicating he understood each of the five warnings, the document
was filled out in Gonzalez’s handwriting, and their interview was not
recorded, even though Gonzalez had the capability to do so. (3 RR 204-
205). While Appellant answered some of the questions contained on the
document, (3 RR 209), Gonzalez stated that Appellant responded, “not
saying” in response to those questions asking:
C Have you been drinking?
C What [have you been drinking]?
C How much [have you been drinking]?
C Time of last drink?
(3 RR 206-208).
Appellant testified that he did not recall Gonzalez reading him the warnings that appeared at the top of State’s Exhibit No. 2. (3 RR 212).
While Appellant, who was not a lawyer, answered certain questions on the
document, he elected to exercise his right to remain silent, by using the
words “not saying,” and by refusing to answer the four questions having
to do with his consumption of alcohol, set out above. (3 RR 214-215).
When the State offered State’s Exhibit No. 2, Appellant objected to it on the grounds, inter alia , that:
C it failed to show on its face that Appellant knowingly, intelligently,
and voluntarily waived all of those rights as required by Art. 38.22, § 2(a)(1-5), of the Code of Criminal Procedure.
C the portion of the document where he declined to answer questions
about his consumption of alcohol violated his constitutional right to silence in violation of the Fifth Amendment to the United States Constitution and Art. I, § 10 of the Texas Constitution.
C the portion of the document where he declined to answer questions
about his consumption of alcohol was not relevant pursuant to Rule 401 of the Rules of Evidence.
C the portion of the document where he declined to answer questions
about his consumption of alcohol was unfairly prejudicial pursuant to Rule 403 of the Rules of Evidence.
(3 RR 220, 222, 235).
B. The Trial Court’s Ruling Admitting State’s Exhibit No. 2 In overruling Appellant’s objections to State’s Exhibit No. 2, the trial court concluded, inter alia , that:
C it comported with art. 38.22, § 2(b), in that it recited the five rights
set out in § 2(a)(1-5).
C it contained an implicit voluntary, knowing, and intelligent waiver
of Appellant’s art. 38.22, § 2(a)(1-5) rights.
C it did not constitute a comment on Appellant’s invocation of his right
to silence, in violation of the Fifth Amendment to the United States Constitution or Art. I § 10 of the Texas Constitution.
C it was relevant.
C it was not more prejudicial than probative.
(3 RR 236-237).
When the State offered State’s Exhibit No. 2 before the jury, (3 RR 241), the trial court it admitted it over all of Appellant’s objections raised,
and overruled, outside the jury’s presence. (3 RR 241-242).
During the rebuttal portion of his final argument, the prosecutor directed the jury’s attention to the portion of State’s Exhibit No. 2 [2] where
*23 Appellant refused to answer questions as to any alcohol he had consumed
and when he had consumed it, [3] reminding jurors that Appellant:
C “was keeping that evidence from you.”
C “went from [saying that he had] two to three drinks to not saying
anything.”
C was “not saying anything to [those questions] ... [b]ecause he knows
what that is going to come back as.” (5 RR 57-58).
The trial court overruled Appellant’s objections that this argument violated the Fifth Amendment to the United States Constitution and Art.
I, § 10 of the Texas Constitution. (5 RR 58).
ARGUMENT AND AUTHORITIES ARGUMENT AND AUTHORITIES ARGUMENT AND AUTHORITIES ARGUMENT AND AUTHORITIES A. The Standard of Review Appellate review of the trial court’s admission of evidence is limited to whether the trial court has abused its discretion. WWWWillover illover v.v.v.v. StateStateStateState, 70 illover illover
S.W.3d 841, 845 (Tex.Crim.App. 2002). An abuse of discretion occurs
when the trial court acts “arbitrarily and unreasonably, without regard to
any guiding rules and principles.” BBBBreeding reeding v.v.v.v. StateStateStateState, 809 S.W.2d 661, 663 reeding reeding
*24 (Tex.App.– Amarillo 1991, pet. ref’d). Appellate courts give almost total
deference to the trial court’s findings of historical fact supported by the
record and to mixed questions of law and fact that turn on an evaluation
of credibility and demeanor. GGGGuzman uzman v.v.v.v. StaStaStaStatetetete, 955 S.W.2d 85, 89 uzman uzman
(Tex.Crim.App. 1997). Determinations of the law and its application of
the law to the facts that do not turn on an evaluation of credibility and
demeanor are reviewed de novo . IIIIdddd. When the trial court has not made
a finding on a relevant fact, an appellate court can imply the finding that
supports the trial court’s ruling, if it finds some support in the record.
State v. Kelly, 204 S.W.3d 808, 818-819 (Tex.Crim.App. 2006). State v. Kelly State v. Kelly State v. Kelly While the abuse of discretion standard is deferential, it does not insulate the trial court’s decision from reversal. MMMMontgomery ontgomery v.v.v.v. StateStateStateState, ontgomery ontgomery
810 S.W.2d 372, 392 (Tex.Crim.App. 1991)(op. on rehr’g). “Abuse of
discretion does not imply intentional wrong or bad faith, or misconduct,
but means only an erroneous conclusion.” HHHHebert ebert v.v.v.v. StateStateStateState, 836 S.W.2d ebert ebert
252, 255 (Tex.App.–Houston [1 st Dist.] 1992, pet. ref’d). “‘Abuse of
discretion’ is a phrase which sounds worse than it is. The term does not
imply intentional wrong or bad faith, or misconduct, nor any reflection on States v. Walker, 772 F.2d 1172, 1176 n. 9 (5 th Cir.
the judge.” UnitedUnitedUnitedUnited States v. Walker States v. Walker States v. Walker *25 1985). A trial court lacks the discretion to determine what the law is, or
in applying the law to the facts, and has no discretion to misinterpret the
law. WWWWalker alker v.v.v.v. Packer alker alker Packer, 827 S.W.2d 833, 840 (Tex. 1992). “But discretion, Packer Packer
to be worthy of the name, is not unchanneled judgment; it is judgment
guided by reason and kept within bounds. Otherwise, ... it is ‘the law of
tyrants: It is always unknown.’” McGautha McGautha v.v.v.v. California McGautha McGautha California, 402 U.S. 183, California California
285 (1971)(Brennan, J., dissenting ); seeseeseesee alalalalso so so so WWWWiltoniltoniltonilton v.v.v.v. Seven Seven FallsFallsFallsFalls Co.Co.Co.Co., SevenSeven
515 U.S. 277, 289 (1995)(review for abuse of discretion is not “tantamount
to no review at all”).
B. Article 38.22, § 2(b) Art. 38.22, § 2 of the Code of Criminal Procedure provides that: Sec.Sec.Sec.Sec. 2.2.2.2. No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the document that: (a) (a)(a) (a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that:
(1)(1)(1)(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him in court; *26 (2)(2)(2)(2) any statement he makes may be used as evidence against him in court; (3)(3)(3)(3) he has the right to have a lawyer present to advise him prior to and during any questioning; (4)(4)(4)(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and (5)(5)(5)(5) he has the right to terminate the interview at any time; and
(b)(b)(b)(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.
(emphasis added).
The State has the burden of showing that a defendant knowingly, voluntarily, and intelligently waived his constitutional rights, Miranda Miranda v.v.v.v. Miranda Miranda
Arizona, 384 U.S. 436, 444 (1966), and must also demonstrate waiver by Arizona Arizona Arizona
a preponderance of the evidence. CCCColorado olorado v.v.v.v. Connelly Connelly, 479 U.S. 157, 168 olorado olorado Connelly Connelly
(1986). While a waiver need not assume a particular form and, in some
cases, “can be clearly inferred from the action and words of the person
interrogated,” NorthNorthNorthNorth Carolina Carolina v.v.v.v. Butler Carolina Carolina Butler, 441 U.S. 369, 373 (1979), “a valid Butler Butler
waiver will not be presumed simply from the silence of the accused after
warnings are given or simply from the fact that a confession was in fact
eventually obtained.” MMMMiranda iranda v.v.v.v. Arizona iranda iranda Arizona, 384 U.S. at 475. As the Arizona Arizona
Supreme Court concluded in MoranMoranMoranMoran v.v.v.v. Burbine Burbine, 475 U.S. 412, 421 (1986), Burbine Burbine
“Only if the ‘totality of the circumstances surrounding the interrogation’
reveals both an uncoerced choice and the requisite level of comprehension
may a court properly conclude that the Miranda Miranda rights have been waived.” Miranda Miranda
It is uncontradicted that Appellant was in custody when he signed the exhibit, and that it did not contain on its face, the statutorily-required
language that he “knowingly, intelligently, and voluntarily waived the
[Subsection (a)] rights.” (3 RR 226). As the trial court pointed out:
C “38.22, Section 2, requires any written statement to have the
warnings on them and the waiver on the document, not in a separate recording. It’s got to be on the document.” C “[O]n your document, what I see problematic is that you don’t have
‘knowingly, intelligently, voluntarily waive.’” C “That’s the problem that I see is that ‘Section B’ is not on the face of
State’s Exhibit No. 2. It just says the word ‘waive.’” C “I’m not worried about the warnings. I’m worried about the
voluntarily, intelligently and knowingly waiver.” (3 RR 227-228).
That the State failed to shoulder its burden of demonstrating a valid *28 waiver, or to show substantial compliance with the requirements of art.
38.22, § 2(b), is fortified by LopezLopezLopezLopez v.v.v.v. StateStateStateState, 314 S.W.3d 54, 60 (Tex.App. –
San Antonio 2010, pet. ref’d), ironically, one of the cases relied upon by the
State. (3 RR 228-229). In LLLLopezopezopezopez, the trial court admitted a witness list
prepared by the accused while she was in custody, over objection that it
did not contain on its face, the § 2(a)(1-5) warnings. The State claimed
that it had substantially complied with art. 38.22 because the warnings
were orally given to the accused by a deputy, the warnings appeared on
a second statement in which she confessed, and the accused initialed and
signed a rights card prior to writing out the witness list. IIIIdddd. The court of
appeals, however, rejected the State’s substantial compliance argument,
holding that “our research has failed to disclose any [cases], in which oral
warnings or warnings on another document have been held to constitute
substantial compliance.” [4] IdIdIdId.
The trial court’s ruling is also at odds with GGGGarciaarciaarciaarcia v.v.v.v. StateStateStateState, 919 S.W.2d 370, 379 (Tex.Crim.App. 1994), where the document on its face
*29 failed to show a knowing, intelligent, and voluntary waiver of the § 2(a)
warnings, even though the accused initialed each of the warnings. The
court held that because the language of art. 38.22, § 2(b) is clear and
unambiguous, “the Legislature is constitutionally entitled to expect that
[we] will faithfully follow the specific text that was adopted.” IIIIdddd.
(emphasis in original)(citation omitted). The court rejected the argument
that the document substantially complied with art. 38.22, § 2(b) because:
The final paragraph on the instant statement is not an express waiver of the rights reflected on the form and the language does not convey the knowing, intelligent waiver required by the statute. Further, the final paragraph does not address each of the rights to be waived under art. 38.22, § 2(b). The instant written statement is clearly more than “technical non-compliance with the statute.” ...
Given that there is no waiver on the face of the documents, we hold the State failed to comply with art. 38.22, § 2(b) and the trial judge erred in admitting the written statement.
IdIdIdId. (emphasis in original)(citations and footnote omitted).
As in GarciaGarciaGarciaGarcia, there was no express waiver on the face of State’s Exhibit No. 2 reflecting a knowing, intelligent and voluntary waiver of the
rights contained in § 2(a), much less the accused’s initials contained on the
written statement in GarciaGarciaGarciaGarcia. Because State’s Exhibit No. 2 suffered from
more than just “technical non-compliance with the statute,” the reasoning
and analysis in GarciaGarciaGarciaGarcia compels the conclusion its admission was error. [5]
C. The Fifth Amendment Almost fifty years ago, in Miranda Miranda v.v.v.v. Arizona Arizona, 384 U.S. 436, 438 n. Arizona Miranda Miranda Arizona 37 (1966), the Supreme Court held that it is “impermissible to penalize an
individual for exercising his Fifth Amendment privilege [6] when he is under
police custodial interrogation. The prosecution may not, therefore, use at
trial the fact that he stood mute or claimed his privilege in the face of
accusation.” A decade later, in DDDDoyleoyleoyleoyle v. Ohio v. Ohio, 426 U.S. 610, 618 (1976), v. Ohio v. Ohio
the Supreme Court extended the protections embodied in Miranda Miranda when Miranda Miranda
it held that the prosecution could not use a defendant’s post-arrest silence
*31 after receiving Miranda Miranda warnings to impeach the defendant, holding that, Miranda Miranda
“[I]t would be fundamentally unfair and a deprivation of due process to
allow the arrested person’s silence to be used to impeach [him].”
Consistent with Miranda Miranda and DoyleDoyleDoyleDoyle, Texas law makes it clear that Miranda Miranda jurors may not hear that the defendant exercised any constitutional right,
whether to counsel or silence in any encounter with police – videotaped or
written – at his trial for the offense of driving while intoxicated. As the
Court of Criminal Appeals concluded in this vein:
We believe that evidence of an accused invoking his or her [constitutional] right[s] ... may indeed be construed adversely to a defendant and may improperly be considered as an inference of guilt. ... Such adverse use of evidence that a defendant invoked a right or privilege which has been granted him, is constitutionally impermissible. ... We therefore hold that evidence of one’s invocation of the right to counsel is inadmissible as evidence of guilt.
Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App. 1991). Hardie v. State Hardie v. State Hardie v. State
The holding in HardieHardieHardieHardie has compelled reversal where, as here, trial courts have erroneously admitted evidence that the defendant has invoked
his constitutional rights to counsel or silence. SSSSeeeeeeee KaliszKaliszKaliszKalisz v.v.v.v. StateStateStateState, 32
S.W.3d 718, 723 (Tex.App.–Houston [14 th Dist.] 2000, pet. ref’d)(“Because
evidence of an accused invoking his constitutional right to counsel may be
construed adversely to a defendant and may improperly be considered as
an inference of guilt, the trial court erred in admitting Officer Anderson’s
query concerning the right to counsel and everything that followed.”);
GrayGrayGrayGray v.v.v.v. StateStateStateState, 986 S.W.2d 814, 815 (Tex.App.– Beaumont 1999, no
pet.)(“In accordance with HardieHardieHardieHardie and its progeny, we hold the trial court
erred in admitting Gray’s invocation of his right to counsel and his right
to terminate the interview.”); LLLLoyoyoyoy v.v.v.v. StateStateStateState, 982 S.W.2d 616, 617
(Tex.App.–Houston [1 st Dist.] 1998, no pet.) (“Appellant clearly invoked his
right to counsel. Evidence showing that was inadmissible.”).
The State asserted that Appellant’s written responses that he was “not saying” whether, what, how much and when he had been drinking
was not a sufficient invocation of his right to silence. [7] (3 RR 235)(“I don’t
read it ... as him not wanting to talk or invoking any of his rights.”). But
the State’s claim that Appellant’s choice of the words “not saying” did not
act as an invocation of his right to silence [8] was expressly rejected by this *33 ooper v.v.v.v. StateStateStateState, 961 S.W.2d 222, 226 (Tex.App.– Houston [1 st Court in CCCCooper ooper ooper
Dist.] 1997, pet. ref’d):
Appellant did, however, invoke his right to terminate the interview when he stated, “I’m not answering any questions,” and he continued to invoke that right throughout the remainder of the interview. Evidence of invoking the right to terminate an interview is inadmissible as evidence of guilt. SSSSeeeeeeee HardieHardieHardieHardie v.v.v.v. StateStateStateState, 807 S.W.2d 319, 322 (Tex.Crim.App. 1991). Although HHHHardieardieardieardie referred specifically to invocation of the right to counsel, we find no reason to differentiate an invocation of the right to terminate.
Because Appellant’s written refusals to answer questions relating to whether, what, how much and when he had been drinking was a sufficient
invocation of his right to silence, the trial court abused its discretion in
overruling Appellant’s objections pursuant to the Fifth Amendment to the
United States Constitution. SSSSeeeeeeee HardieHardieHardieHardie v.v.v.v. StateStateStateState, 807 S.W.2d at 322;
Cooper v. State, 961 S.W.2d at 226; Gray v. State Cooper v. State Cooper v. State Cooper v. State Gray v. State, 986 S.W.2d at 815. Gray v. State Gray v. State
D. Art. I, § 10 In the cases noted above, the erroneous admission of evidence that the accused invoked his right to silence was found to have violated the
Fifth Amendment to the United States Constitution and Art. I, § 10 of the
Texas Constitution. [9] HardieHardieHardieHardie v.v.v.v. StateStateStateState, 807 S.W.2d at 320 (“Appellant
objected by way of ... [his] rights under the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution [and] Article 1, Secs. 10
and 19 of the Texas Constitution...”); CCCCooper ooper v.v.v.v. StateStateStateState, 961 S.W.2d at 224 ooper ooper
(same). Accordingly, admitting that portion of State’s Exhibit No. 2 where
Appellant invoked his constitutional right to silence was also an abuse of
discretion pursuant to Art. I, § 10 of the Texas Constitution, which affords
the same, if not greater, protection than the Fifth Amendment. [10] SSSSanchez anchez anchez anchez
v.v.v.v. State State, 707 S.W.2d 575, 585 (Tex.Crim.App. 1986)Clinton, J., concurring ) State State
(“The constitutional protection provided by [Art. I] § 10 forbids using mere
silence against an accused under arrest...”).
E. Rule 401 T EX .R.E VID . 401 provides that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would
*35 be without [it].” MMMMayesayesayesayes v.v.v.v. StateStateStateState, 816 S.W.2d 79, 84 (Tex.Crim.App. 1991).
In other words, evidence must satisfy two distinct requirements to be
relevant: it must be material and probative. CCCCruzruzruzruz v.v.v.v. StateStateStateState, 122 S.W.3d
309, 312 (Tex.App.– Houston [1 st Dist.] 2003, pet. ref’d). Relevance is not
an inherent characteristic of any item of evidence, but exists as a relation
between an item of evidence and a matter properly provable in a given
case. CCCContreras ontreras v.v.v.v. StateStateStateState, 915 S.W.2d 510, 519 (Tex.App.–El Paso 1995, ontreras ontreras
pet. ref’d). “[F]or an item to alter the probabilities of the existence of the
consequential fact and thus be relevant it must logically increase one’s
knowledge and enhance the likelihood of ascertaining the truth about the
fact.” BrownBrownBrownBrown v.v.v.v. StateStateStateState, 757 S.W.2d 739, 740 (Tex.Crim.App. 1988). “An
important element of a fair trial is that a jury consider only relevant and
competent evidence bearing on the issue of guilt or innocence.” BBBBruton ruton v.v.v.v. rutonruton
UnitedUnitedUnitedUnited States States, 391 U.S. 123, 131 n. 6 (1968). As two distinguished legal States States
commentators have remarked, “Even the most comprehensive evidence
may not be admitted unless its significance can be ascertained.” 2 Jack
B. Weinstein & Margaret A. Berger, WWWW EINSTEIN ’’’’ S FFFF EDERAL EEEE VIDENCE , Sec.
401.04[2][d] (2 nd ed. 2000).
Viewed against this backdrop, the trial court abused its discretion *36 in overruling Appellant’s relevance objection to that portion of this exhibit
where he invoked his constitutional right to silence. It is well settled that
the accused’s invocation of the constitutional right to either silence or to
counsel is inadmissible as evidence of guilt. HHHHardieardieardieardie v.v.v.v. StateStateStateState, 807 S.W.2d
at 321(right to counsel); Cooper Cooper v.v.v.v. StateStateStateState, 961 S.W.2d at 226 (right to Cooper Cooper
terminate interview). Here, evidence that Appellant opted not to answer
questions about the amount and time of his consumption of alcohol was
neither probative nor material, seeseeseesee Jamail Jamail v.v.v.v. StateStateStateState, 787 S.W.2d 380, 383 Jamail Jamail
(Tex.Crim.App. 1990)(per curiam), overruled on other grounds , HardieHardieHardieHardie v.v.v.v.
StateStateStateState,,,, 807 S.W.2d at 322 (defendant’s invocation of his constitutional right
to counsel had no probative value and was inadmissible under Rule 402),
especially since his refusal was written and not oral. CCCCompare ompare Lajoie ompare ompare Lajoie v.v.v.v. Lajoie Lajoie
StateStateStateState, 237 S.W.3d 345, 353 (Tex.App.– Fort Worth 2007, no pet.)(“Here
the evidence of Lajoie asking for an attorney does have some probative
value as evidence of his speech pattern on the night of his arrest.”). The
trial court, accordingly, abused its discretion in overruling Appellant’s
relevancy objection after he invoked his constitutional right not to answer
questions relating to whether, what, how much and when he had been
drinking. SSSSeeeeeeee HardieHardieHardieHardie v.v.v.v. StateStateStateState, 807 S.W.2d at 321; CCCCooper ooper v.v.v.v. StateStateStateState, 961 ooper ooper
*37 S.W.2d at 226.
F. Rule 403 Even if the trial court did not abuse its discretion in holding that evidence that Appellant invoked his right to silent was relevant pursuant
to rule 401, this evidence was nevertheless subject to exclusion pursuant
to T EX .R.E VID . 403. [11] Evidence is unfairly prejudicial when it has “an
undue tendency to suggest that a decision be made on an improper basis.”
MMMMontgomery ontgomery v.v.v.v. StateStateStateState, 810 S.W.2d at 389. When conducting an analysis ontgomery ontgomery under rule 403, the trial court must balance: (1) the inherent probative
value [12] of the proffered evidence along with, (2) the proponent’s need for
the evidence against, (3) any tendency of the evidence to suggest a
decision on an improper basis, (4) any tendency of the evidence to confuse
or distract the jury from the main issues, (5) any tendency of the evidence
to be given undue weight by a jury that has not been equipped to evaluate
the probative value of the evidence, and (6) the likelihood that *38 presentation of the evidence will consume an inordinate amount of time.
StateStateStateState v.v.v.v. Mechler Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App. 2005). In applying Mechler Mechler
these factors, this Court must “do more than decide whether the trial
judge did in fact conduct the required balancing between probative and
prejudicial value; the trial court’s determination must be reasonable in
view of all the relevant facts.” RRRReeseeeseeeseeese v.v.v.v. StateStateStateState, 33 S.W.3d 238, 241
(Tex.Crim.App. 2000).
First, evidence that Appellant invoked his right to silence has no probative value. Jamail Jamail Jamail v. State Jamail v. State, 787 S.W.2d at 383, overruled on other v. State v. State
grounds , HardieHardieHardieHardie v.v.v.v. StateStateStateState,,,, 807 S.W.2d at 322. Second, the State’s need for
this evidence was minimal given the other evidence it elicited regarding
Appellant’s alleged intoxication. SSSSeeeeeeee StateStateStateState v.v.v.v. Mechler Mechler, 153 S.W.3d at 441. Mechler Mechler
Third and fourth, this evidence could have certainly led the jury to convict
Appellant on an improper basis, and it was likely given undue weight by
the jury in deciding Appellant’s guilt, especially in light of the State’s
emphasis on it at trial and during summation. SSSSeeeeeeee Russell Russell v.v.v.v. StateStateStateState, 113 Russell Russell
S.W.3d 530, 545 (Tex.App.– Fort Worth 2003, pet. ref’d). Accordingly, this
Court is constrained to hold that evidence that Appellant invoked his right
to silence by refusing to answer those questions regarding whether, what,
how much and when he had been drinking, was inadmissible because its
probative value was substantially outweighed by the danger of its unfair
prejudice. SSSSeeeeeeee Lajoie Lajoie v.v.v.v. StateStateStateState, 237 S.W.3d at 353 (trial court abused its Lajoie Lajoie
discretion in admitting evidence that defendant invoked a constitutional
right over his rule 403 objection where State’s need for this evidence was
minimal, evidence could have led jury to convict on improper basis, and
evidence had tendency to be given undue weight by jury in determining
if defendant was guilty).
G. This Constitutional Error was Not Harmless Beyond a Reasonable Doubt Pursuant to Rule 44.2(a) This Court’s task in determining whether the erroneous admission of evidence in the face of his objections pursuant to art. 38.22, § 2(b), the
Fifth Amendment, and art. I, § 10, was constitutional error reviewed
under T EX .R.A PP .P. 44.2(a), [13] is not at all difficult. In HHHHarrisarrisarrisarris v.v.v.v. StateStateStateState, 790
S.W.2d. 652 , 655 (Tex.Crim.App. 1989), the court held that if the error, as
here, is of a magnitude that disrupted the jury’s orderly evaluation of the
evidence, it could not be considered harmless beyond a reasonable doubt.
*40 These factors include the source and the nature of the error, the weight
a juror likely placed upon the error, whether and to what extent the error
was emphasized by the State, and whether the State would be encouraged
to repeat the error with impunity in the future if a reviewing court
declared it harmless. IdIdIdId.
In conducting this review, this Court must not focus on the propriety of the trial’s outcome but rather upon the integrity of the process leading
to conviction. IIIIdddd. at 597. “The question in our judgment is whether the
jury might have been influenced by an error and not whether in our
judgment the correct result was reached.” LLLLeoseoseoseos v.v.v.v. StateStateStateState, 883 S.W.2d 209,
212 (Tex.Crim.App. 1994). This Court is obligated to review this record
in a neutral, impartial and even-handed manner to determine if this error
contributed to the conviction, a task that requires more than finding the
State’s evidence was overwhelming. SSSSeeeeeeee Hadden Hadden v.v.v.v. StateStateStateState, 829 S.W.2d Hadden Hadden
838, 842 (Tex.App.– Corpus Christi 1992, pet. ref’d).
Here, the source of the error was the State’s offering and the trial court’s admitting evidence obtained in violation of art. 38.22, § 2(b), that
showed Appellant invoked his state and federal constitutional rights to
silence, a factor that falls on Appellant’s side of the ledger. SeeSeeSeeSee Godfrey Godfrey Godfrey Godfrey
*41 v.v.v.v. StateStateStateState, 859 S.W.2d 583, 585 (Tex.App.–Houston [14 th Dist.] 1993, pet.
ref’d)(when officer of the court commits an error, “the error is enhanced.”).
The nature of the error permitted the State to emphasize that Appellant:
(1) “was keeping that evidence from you,” (2) “went from [saying that he
had] two to three drinks to not saying anything,” (3) and was “not saying
anything to [those questions] ... [b]ecause he knows what that is going to
come back as,” (5 RR 57-58), a factor weighing heavily in favor of a finding
of harm. CCCCooper ooper v.v.v.v. StateStateStateState, 961 S.W.2d at 227. The probable collateral ooper ooper
implications of the error was that Appellant was guilty, not because he
was intoxicated, but because he was trying to hide evidence from the jury
by invoking his state and federal constitutional rights to silence. SSSSeeeeeeee LoyLoyLoyLoy
v.v.v.v. StateStateStateState, 982 S.W.2d at 618. Given the State’s emphasis on this error at
trial and during its summation, and the jury’s request to see State’s
Exhibit No. 2, [14] the jury likely placed great weight upon the error, another
factor indicating harm. SSSSeeeeeeee MarshMarshMarshMarsh v.v.v.v. StateStateStateState, 115 S.W.3d 709, 721
(Tex.App.– Austin 2003, pet. ref’d) (“The prosecutor in closing ... stressed
and overemphasized the erroneously admitted ... evidence.”). This tenet *42 is especially true where, as in this case, the State’s emphasis on the error
is among the final plea made to jurors before retiring to decide Appellant’s
guilt or innocence. SSSSeeeeeeee Barnum Barnum v.v.v.v. StateStateStateState, 7 S.W.3d 782, 794 (Tex.App.– Barnum Barnum
Amarillo 1999, pet. ref’d).
Finally, and perhaps most important of all, given the sheer number of cases that have been reversed for this same or similar constitutional
violation, declaring this error harmless would encourage the State to
repeat it with impunity in future cases, as this Court has repeatedly held.
OppOppOppOpp v.v.v.v. StateStateStateState, 36 S.W.3d 158, 161 (Tex.App.– Houston [1 st Dist.] 2000, pet. ref’d)(“[I]f we were to declare this error harmless, we cannot say the State
would not be encouraged to offer this sort of inadmissible evidence in the
future. Even declaring the error harmful and reversing for it, as we did
in Cooper Cooper and LoyLoyLoyLoy, has not prevented its recurrence.”); GrayGrayGrayGray v.v.v.v. StateStateStateState, 986 Cooper Cooper
S.W.2d at 815 (“It is indisputable that this evidence was inadmissible, as
the case law cited herein demonstrates. We are loathe to sanction, much
less encourage, the offering of clearly inadmissible evidence.”). Moreover,
as in GarciaGarciaGarciaGarcia v.v.v.v. StateStateStateState, 919 S.W.2d at 381, where the court concluded that
the erroneous admission of the defendant’s written statement in violation
of art. 38.22, § 2(b) was not harmless beyond a reasonable doubt:
[T]hrough appellant’s motion to suppress the signed written statement and his objections at trial, the prosecutor and the trial judge were well aware of the deficiencies present on the face of appellant’s written statement. Ignoring the deficiencies, the prosecutor offered, and the trial judge admitted, appellant’s signed written statement. Consequently, we believe declaring the error harmless would encourage the State to repeat the error with impunity.
(emphasis added).
While the State will no doubt assert, as it does in every case where
constitutional error has tainted the integrity of the trial, that this error
is dissipated by overwhelming evidence of guilt, this rote rejoinder will not
support the great weight placed upon it. While evidence of Appellant’s
guilt may be legally sufficient, “it is not so overwhelming that the error’s
effect upon the jury’s function in determining the facts dissipated.” GGGGrayrayrayray
v. State, 986 S.W.2d at 816. Aside from the boilerplate facts testified to v. State v. State v. State
by peace officers in every DWI prosecution, [15] there was no blood or breath
test fortifying the State’s claim that Appellant was intoxicated. Moreover, *44 in spite of the relatively brief time spent in trial, the jury deliberated from
10:04 a.m. until 4:14 p.m. before finally returning a verdict, (CR 125, 133),
compelling evidence, as this Court has held, that the State’s proof was
hardly overwhelming. LLLLoyoyoyoy v.v.v.v. StateStateStateState, 982 S.W.2d at 618-619 (“[T]he jury
deliberated on guilt for nearly two hours, possibly indicating it thought
the evidence was close. [16] Knowing this, and that the jury asked for the
videotape [where the defendant invoked his rights], we cannot conclude
with confidence that this error was harmless.”); seeseeseesee alsoalsoalsoalso Cooper Cooper v.v.v.v. StateStateStateState, Cooper Cooper
36 S.W.3d at 160 (rejecting State’s claim that evidence was overwhelming
where defendant drove up behind marked patrol unit at 110 mph, was
weaving and cutting off other traffic, officers chased him for almost three
miles to catch him, and he jumped out of his car and left it in drive).
All of the HarrisHarrisHarrisHarris factors informing this Court’s harm analysis fall on Appellant’s side of the ledger. The State’s likely riposte that the effect of
this error is dissipated by overwhelming evidence of guilt is a non-starter.
The State’s insistence on offering, and the trial court’s decision admitting,
*45 inadmissible evidence that disrupted the jury’s orderly evaluation of the
evidence compels a reversal of Appellant’s conviction.... MMMMcCarthy cCarthy v. State cCarthy cCarthy v. State, v. State v. State
65 S.W.3d 47, 56 (Tex.Crim.App. 2001)(“Although we are slow to overturn
the verdict of a jury, when fundamental constitutional protections are
violated, however innocently, we must uphold the integrity of the law.”).
The judgment of conviction entered below must be reversed and the cause remanded for a new trial.
H. Alternatively, this Non-Constitutional Error Violated Appellant’s Substantial Rights Pursuant to Rule 44.2(b) Alternatively, the erroneous admission of State’s Exhibit No. 2, in which Appellant invoked his right to silence in violation of rules 401 and
403, affected his substantial rights under T EX .R.A PP .P. 44.2(b). [17] Delane Delane Delane Delane
v.v.v.v. StateStateStateState, 369 S.W.3d 412, 423 (Tex.App.– Houston [1 st Dist.] 2012, pet.
ref’d). This rule requires this Court to determine if this error had “a
substantial and injurious effect or influence in determining the jury’s
verdict.” KingKingKingKing v.v.v.v. StateStateStateState, 953 S.W.2d 266, 270 (Tex.Crim.App. 1997). If this
Court has “grave doubt” that the result was free from the substantial
*46 influence of the error, it must treat the error as if it did. UUUUnitednitednitednited States States v.v.v.v. States States
LaneLaneLaneLane, 474 U.S. 438, 449 (1986); Burnett v. State Burnett v. State, 88 S.W.3d 633, 638 Burnett v. State Burnett v. State
(Tex.Crim.App. 2002)(“In cases of grave doubt as to the harmlessness the
[appellant] must win.”); BrownBrownBrownBrown v.v.v.v. StateStateStateState, 978 S.W.2d 708, 716 (Tex.App.–
Amarillo 1998, pet. ref’d)(emphasis in original)(“The determination of
harm is little more than an educated guess. What the jurors actually
thought persuasive or actually considered is seldom, if ever, available to
us. So, we ... assess potentialities.”).
Appellant is not required to prove harm from this error; it is this Court’s duty to review the record and assess harm. JJJJohnson ohnson v.v.v.v. StateStateStateState, 43 ohnson ohnson
S.W.3d 1, 4-6 (Tex.Crim.App. 2001). The proper inquiry is whether the
error substantially swayed or influenced the verdict. BBBBooker ooker v.v.v.v. StateStateStateState, 103 ooker ooker
S.W.3d 521, 538 (Tex.App.– Fort Worth 2003, pet. ref’d). This Court must
consider the erroneous admission of evidence that Appellant invoked his
right to silence in the context of the entire record, and not merely whether
there was sufficient or overwhelming evidence of guilt. MMMMotilla otilla v.v.v.v. StateStateStateState, otillaotilla
78 S.W.3d 352, 355 (Tex.Crim.App. 2002).
In conducting its rule 44.2(b) harm analysis, this Court cannot lose sight of two interrelated considerations. First, if there is any doubt that
this error affected a substantial right, it is dispelled by the prosecutor
directing the jury’s attention to Appellant’s refusal to answer questions as
to any alcohol he had consumed, and when he had consumed it, in his
rebuttal argument, when defense counsel was powerless to respond:
C Appellant “was keeping that evidence from you.”
C Appellant “went from [saying that he had] two to three drinks to not
saying anything.”
C Appellant was “not saying anything to [those questions] ... [b]ecause
he knows what that is going to come back as.” (5 RR 57-58).
This Court has long held that prosecutorial emphasis on erroneously admitted evidence at trial and in final argument, is powerful evidence
that an error affecting a substantial right warrants reversal. SSSSeeeeeeee Delane Delane Delane Delane
v.v.v.v. State State, 369 S.W.3d at 423 (misapplication of rules of evidence affected State State
substantial rights where State emphasized erroneously admitted evidence
during final argument); NelmsNelmsNelmsNelms v.v.v.v. StateStateStateState, 834 S.W.2d 110, 114 (Tex.App. –
Houston [1 st Dist.] 1992, pet. ref’d)(same); sssseeeeeeee alsoalsoalsoalso RhyneRhyneRhyneRhyne v.v.v.v. StateStateStateState, 387
S.W.3d 896, 906 (Tex.App.– Fort Worth 2012, no pet.)(erroneous
admission of breath test result affected substantial rights when State
advised jury in summation that breath-test evidence was “best evidence”
Appellant was intoxicated.”).
Second, that evidence of Appellant’s guilt was not overwhelming compels the conclusion that this error, and the State’s repeated emphasis
on it in final argument, was calculated to make its case significantly more
persuasive and Appellant’s significantly less so, a factor this Court has
relied upon in holding a substantial right has been affected. SSSSeeeeeeee Peters Peters Peters Peters
v.v.v.v. StateStateStateState, 31 S.W.3d 704, 723 (Tex.App.– Houston [1 st Dist.] 2000, pet.
ref’d). As one appellate court has held in a situation akin to this case,
finding the admission of the accused’s invocation of a constitutional right
over his rule 403 objection affected a substantial right:
Here the evidence of guilt was hardly overwhelming. The evidence supporting guilt was Lajoie’s refusal to perform the breath test, his slow speech, and his poor performance on the horizontal gaze nystagmus test. The only evidence that went squarely to whether Lajoie had lost the normal use of his mental faculties by the consumption of alcohol was Officer Nelson’s opinion. ...
After reviewing the whole record, we believe that it is clear that not only was evidence of Lajoie asking for an attorney before the jury, but that the State overtly emphasized and relied on that evidence as proof of his guilt. Therefore, we hold that the error had a substantial and injurious effect or influence in determining the jury’s verdict and, *49 thus, affected Lajoie’s substantial rights. [18]
Lajoie v. State, 237 S.W.3d at 354-355. Lajoie v. State Lajoie v. State Lajoie v. State
On this record, this Court cannot say with fair assurance that the erroneous admission of evidence that Appellant invoked his constitutional
right to silence, and the State’s repeated emphasis on it during trial and
in summation, did not influence jurors, or had but a slight effect on their
verdict. SeeSeeSeeSee e.ge.ge.ge.g., Pollard Pollard v. State Pollard Pollard v. State, 255 S.W.3d 184, 190 (Tex.App.– San v. State v. State
Antonio, 2008), aff’d , 277 S.W.3d 25 (Tex.Crim.App. 2009)(“[W]e conclude
the State’s emphasis of the murder conviction prejudiced the jury’s
decision-making, causing a substantial and injurious effect or influence on
the jury’s verdict...”); WestWestWestWest v.v.v.v. StateStateStateState, 124 S.W.3d 732, 736 (Tex.App.–
Houston [1 st Dist.] 2003, pet. ref’d)(State’s emphasis of error during final
argument was powerful indicia that trial court’s misapplication of rules
of evidence affected defendant’s substantial rights).
The judgment of conviction entered below must be reversed and the cause remanded for a new trial.
*50 POINT OF ERROR NUMBER SIX POINT OF ERROR NUMBER SIX POINT OF ERROR NUMBER SIX POINT OF ERROR NUMBER SIX The trial court erred in overruling Appellant’s objection after the prosecutor improperly commented on Appellant’s post-arrest silence during final argument in the guilt-innocence stage of trial, in violation of the Fifth Amendment to the United States Constitution.
POINT OF ERROR NUMBER SEVEN POINT OF ERROR NUMBER SEVEN POINT OF ERROR NUMBER SEVEN POINT OF ERROR NUMBER SEVEN The trial court erred in overruling Appellant’s objection after the prosecutor improperly commented on Appellant’s post-arrest silence during final argument in the guilt-innocence stage of trial, in violation of Art. I, § 10 of the Texas Constitution.
STATEMENT OF FACTS STATEMENT OF FACTS STATEMENT OF FACTS STATEMENT OF FACTS In the final moments of rebuttal argument, the prosecutor directed the jury’s attention to the fact that Appellant declined to answer questions
about how much he had to drink, even after being apprised of his Miranda Miranda Miranda Miranda
warnings by police:
M R . P ERRY : [Appellant] ponders it and he says, “I am going to keep that evidence. He is keeping evidence from you.
And if you want more evidence of that, then just look at this State’s Exhibit No. 2. He answers all of these questions. His Miranda warnings were read to him. He signed it. There is a signature. ... Have you been drinking?
Now it went from two or three drinks to not saying anything.
M R . S ILVERMAN : We object at this point in time. M R . P ERRY : Not saying anything. ...
T HE C OURT : Hold on. Mr. Perry – M R . P ERRY : Yes, sir.
T HE C OURT : – if he stands up, just like you did, stop talking.
M R . P ERRY : I didn’t hear an objection.
M R . S ILVERMAN : We’re objecting pursuant to the Fifth Amendment of the United States Constitution, Article 1, Section 10 of the Texas Constitution.
T HE C OURT : Still overruled.
M R . P ERRY : Not saying anything to that one. Why not? Because he knows what that is going to come back as.
(5 RR 57-58).
ARGUMENT AND AUTHORITIES ARGUMENT AND AUTHORITIES ARGUMENT AND AUTHORITIES ARGUMENT AND AUTHORITIES A. The Standard of Review “The purpose of closing argument is to facilitate the jury’s proper analysis of the evidence presented at trial in order to arrive at a just and
reasonable conclusion based solely on the evidence.” HHHHarrisarrisarrisarris v.v.v.v. StateStateStateState, 122
S.W.3d 871, 883 (Tex.App.– Fort Worth 2003, pet. ref’d). Permissible jury
argument generally falls within one of four areas: (1) summation of the
evidence; (2) reasonable deductions from the evidence; (3) responses to
argument of opposing counsel; and (4) pleas for law enforcement. BrownBrownBrownBrown
v.v.v.v. StateStateStateState, 270 S.W.3d 564, 570 (Tex.Crim.App. 2008). As the Court of
Criminal Appeals cautioned over forty years ago, “The arguments that go
beyond these areas too often place before the jury unsworn, and most
times believable testimony of the attorney.” AAAAlejandro lejandro v.v.v.v. StateStateStateState, 493 lejandro lejandro
S.W.2d 230, 231 (Tex.Crim.App. 1973).
The law provides for, and presumes a fair trial for the accused, free from improper prosecutorial argument. Borjan Borjan v.v.v.v. StateStateStateState, 787 S.W.2d 53, 56 Borjan Borjan
(Tex.Crim.App. 1990). This Court has made it clear that appellate courts
should not hesitate to reverse when the State has departed from one of the
permissible areas in final argument and engaged in conduct that denies
the accused a fair and impartial trial. Washington Washington v.v.v.v. StateStateStateState, 16 S.W.3d 70, Washington Washington
73 (Tex.App.–Houston [1 st Dist.] 2000, pet. ref’d); seeseeseesee alsoalsoalsoalso UnitedUnitedUnitedUnited States States States States
v.v.v.v. MurrahMurrahMurrahMurrah, 888 F.2d 24, 27 (5 th Cir. 1989)(internal quotation marks
omitted)(“Rules of fair play apply to all counsel and are to be observed by
the prosecution and defense counsel alike. ... If anything, the obligation
of fair play by the lawyer representing the government is accentuated.
Prosecutors do not have a hunting license exempt from the ethical
constraints on advocacy.”).
B. The Prosecutor’s Comment on Appellant’s Post-Arrest Silence Violated the Fifth Amendment and Art. I, § 10 Prosecutorial comment on a defendant’s silence after his arrest and after receiving MMMMiranda iranda warnings violates the Fifth Amendment of the iranda iranda
United States Constitution, DoyleDoyleDoyleDoyle v.v.v.v. OhioOhioOhioOhio, 426 U.S. 610, 619 (1976), and
Art. I, § 10 of the Texas Constitution. WWWWyborny yborny v.v.v.v. StateStateStateState, 209 S.W.3d 285, yborny yborny
291-292 (Tex.App. – Houston [1 st Dist.] 2006, pet. ref’d). Such a comment
on the defendant’s post-arrest silence is tantamount to a comment on his
failure to testify at trial because it seeks to raise an inference of guilt
arising from the invocation of a constitutional right. DDDDinkins inkins v.v.v.v. StateStateStateState, 894 inkins inkins
S.W.2d 330, 356 (Tex.Crim.App. 1995).
The prosecutor’s argument that Appellant was “keeping evidence” from the jury as to whether, what, how much, and when he had consumed
alcohol “because he knows what that is going to come back as” was clearly
and unmistakably calculated to penalize him for his post-arrest silence in
violation of the Fifth Amendment and art. I, § 10. Accordingly, the trial
court erred in overruling Appellant’s objections on both state and federal
grounds to the prosecutor’s improper jury argument. SSSSeeeeeeee Bhakta Bhakta v.v.v.v. StateStateStateState, Bhakta Bhakta
981 S.W.2d 293, 295 (Tex.App.– San Antonio 1998, pet. ref’d)(prosecutor’s
final argument that, “We have already gone over what he didn’t say in his
statement, and coincidentally, that he didn’t say at the scene, and he
didn’t tell any officer...” improperly comment on defendant’s post-arrest
silence); GarciaGarciaGarciaGarcia v.v.v.v. StateStateStateState, 880 S.W.2d 497, 499 (Tex.App.– Corpus Christi
1994, no pet.)(“The prosecutor’s comment in argument is a direct assault
on Garcia’s constitutionally protected right to remain silent after arrest.”);
Buitureida v.v.v.v. StateStateStateState, 684 S.W.2d 133, 141 (Tex.App.– Corpus Christi 1984, Buitureida Buitureida Buitureida
pet. ref’d)(prosecutor improperly commented on defendants’ post-arrest
silence by arguing, “You got a situation where the Defendants would not
talk to the police. They didn’t want to talk to the police.”); Conway v. Conway v. Conway v. Conway v.
StateStateStateState, 625 S.W.2d 35, 38 (Tex.App.– Eastland 1981, pet. ref’d)(“[A]s the
referred to silence was post-arrest, it was not the proper subject of
comment by the District Attorney during ... closing arguments.”).
C. The Prosecutor’s Improper Final Argument was Constitutional Error Requiring Reversal When jury argument falls outside the approved areas, “it will not constitute reversible error unless [it] is extreme or manifestly improper...
or injects new facts harmful to the accused into the trial proceeding.
Temple v.v.v.v. StateStateStateState, 342 S.W.3d 572, 602-603 (Tex.App.– Houston [14 th Dist.] Temple Temple Temple
2010), aff’d , 390 S.W.3d 341 (Tex.Crim.App. 2013). Because this improper
final argument offended Appellant’s privilege against self-incrimination
under the Fifth Amendment to the United States Constitution, and Art.
I, § 10, of the Texas Constitution, it is error of constitutional magnitude
governed by a T EX .R.A PP .P. 44.2(a) [19] harm analysis. CCCCrocker rocker rocker v.v.v.v. StateStateStateState, 248 rocker
S.W.3d 299, 305 (Tex.App.– Houston [1 st Dist.] 2007, pet. ref’d).
In HarrisHarrisHarrisHarris v.v.v.v. StateStateStateState, 790 S.W.2d. 652 , 655 (Tex.Crim.App. 1989), the court held that if the error, as here, is of a magnitude that disrupted the
jury’s orderly evaluation of the evidence, it could not be considered
harmless beyond a reasonable doubt. The factors HarrisHarrisHarrisHarris mandates that
this Court must consider in conducting its harmless error review include
*56 the source and the nature of the error, the weight a juror likely placed
upon the error, whether and to what extent the error was emphasized by
the State, and whether the State would be encouraged to repeat the error
with impunity in the future, if a reviewing court declared it harmless. IIIIdddd.
In conducting this review, this Court must not focus on the propriety of the trial’s outcome, but rather upon the integrity of the process leading
to conviction. IIIIdddd. at 597. “The question in our judgment is whether the
jury might have been influenced by an error and not whether in our
judgment the correct result was reached.” LLLLeoseoseoseos v.v.v.v. StateStateStateState, 883 S.W.2d 209,
212 (Tex.Crim.App. 1994). This Court is obligated to review this record
in a neutral, impartial and even-handed manner to determine if this error
contributed to the conviction, a task that requires more than finding the
State’s evidence was overwhelming. SSSSeeeeeeee Hadden Hadden v.v.v.v. StStStStateateateate, 829 S.W.2d Hadden Hadden
838, 842 (Tex.App.– Corpus Christi 1992, pet. ref’d).
Here, the source of the error was the prosecutor violating one of the most fundamental protections afforded to any citizen accused – the right
not to be penalized for his silence while in the custody of law enforcement.
As the Fifth Circuit remarked in granting federal habeas relief in a death
penalty case where prosecutors improperly commented on the defendant’s
right to silence during final argument, “To conclude otherwise empties all
meaning of this cornerstone of rights upon which the criminal justice
system rests. Its very centrality renders it a primal rule – etched in the
minds of all players in a criminal case.” GGGGongora ongora v.v.v.v. Thaler ongora ongora Thaler, 710 F.3d 267, Thaler Thaler
278 (5 th Cir. 2013); sesesesee also e also GGGGodfrey odfrey v.v.v.v. StateStateStateState, 859 S.W.2d 583, 585 e also e also odfrey odfrey
(Tex.App.–Houston [14 th Dist.] 1993, pet. ref’d)(when officer of the court
commits an error, “the error is enhanced.”).
The nature of the error permitted the prosecutor to emphasize that Appellant: (1) “was keeping that evidence from you,” (2) “went from
[saying that he had] two to three drinks to not saying anything,” (3) and
was “not saying anything to [those questions] ... [b]ecause he knows what
that is going to come back as,” (5 RR 57-58). As this Court has concluded
in a similar case, this factor weighs heavily in favor of a finding of harm.
Cooper v.v.v.v. StateStateStateState, 961 S.W.2d 222, 227 (Tex.App.– Houston [1 st Dist.] 1997, Cooper Cooper Cooper pet. ref’d).
The probable collateral implications of the error was the prosecutor arguing that Appellant was guilty, not because he was intoxicated, but
because he was trying to hide evidence from jurors by invoking his state
and federal constitutional rights to silence. SSSSeeeeeeee LoyLoyLoyLoy v.v.v.v. StateStateStateState, 982 S.W.2d
*58 616, 618 (Tex.App.– Houston [1 st Dist.] 1998, pet. ref’d). Given the State’s
emphasis on this error at trial and during its summation, and the jury’s
request to see State’s Exhibit No. 2, [20] the jury likely placed great weight
upon the error, yet another factor indicating harm. SSSSeeeeeeee Marsh v. State Marsh v. State, Marsh v. State Marsh v. State
115 S.W.3d 709, 721 (Tex.App.– Austin 2003, pet. ref’d) (“The prosecutor
in closing ... stressed and overemphasized the erroneously admitted ...
evidence.”). This tenet is especially true when, as here, the argument not
only occurred during rebuttal, when its harmful effect could have been
attenuated by Appellant’s argument, seeseeseesee BrownBrownBrownBrown v.v.v.v. StateStateStateState, 978 S.W.2d 708,
714-715 (Tex.App.– Amarillo 1998, pet. ref’d), but was among the final
plea made to jurors before retiring to decide Appellant’s fate. SSSSeeeeeeee Barnum Barnum Barnum Barnum
v.v.v.v. StateStateStateState, 7 S.W.3d 782, 794 (Tex.App.– Amarillo 1999, pet. ref’d).
Moreover, by overruling Appellant’s objections, the trial court placed its
seal of judicial approval on the State’s improper argument, and magnified
the harm. SeeSeeSeeSee PeakPeakPeakPeak v.v.v.v. StateStateStateState, 57 S.W.3d 14, 20 (Tex.App.– Houston [14 th
Dist.] 2001, pet. ref’d)(“[W]e find that the court’s failure to take curative
measures militates toward a finding of harm, against Appellant.”).
*59 Finally, and perhaps most important of all, the prosecutor violated a fundamental state and federal constitutional right that is “etched in the
minds of all players in a criminal case.” GGGGongora ongora v. Thaler ongora ongora v. Thaler, 710 F.3d at v. Thaler v. Thaler
278. Holding the prosecutor’s improper argument penalizing Appellant for
exercising his fundamental right to silence harmless “will only encourage
prosecutors to repeat the constitutional error with impunity.” Hampton Hampton Hampton Hampton
v. State, 121 S.W.3d 778, 784 (Tex.App.– Austin 2003, pet. ref’d). v. State v. State v. State
As set out above, the State’s predictable rejoinder that overwhelming evidence of Appellant’s guilt dissipates the harmful effect of this error will
not support the great weight placed upon it. While evidence of Appellant’s
guilt may be legally sufficient, “it is not so overwhelming that the error’s
effect upon the jury’s function in determining the facts dissipated.” GrayGrayGrayGray
v.v.v.v. StateStateStateState, 986 S.W.2d 814, 816 (Tex.App.– Beaumont 1999, no pet.) Aside
from the boilerplate facts testified to by peace officers in every DWI
prosecution, [21] there was no blood or breath test fortifying the State’s claim
that Appellant was intoxicated. Moreover, in spite of the relatively brief *60 time spent in trial, the jury deliberated from 10:04 a.m. until 4:14 p.m.
before finally returning a verdict, (CR 125, 133), compelling evidence that
the State’s proof was hardly overwhelming. LLLLoy v. State oy v. State, 982 S.W.2d at oy v. State oy v. State
618-619 (“[T]he jury deliberated on guilt for nearly two hours, possibly
indicating it thought the evidence was close. [22] Knowing this, and that the
jury asked for the videotape [where the defendant invoked his rights], we
cannot conclude with confidence that this error was harmless.”); seeseeseesee alsoalsoalsoalso
Cooper v.v.v.v. StateStateStateState, 36 S.W.3d at 160 (evidence was not overwhelming where Cooper Cooper Cooper
defendant drove up behind marked patrol unit at 110 mph, was weaving
and cutting off other traffic, officers chased him for almost three miles to
catch him, and defendant jumped out of his car and left it in drive).
Viewed through the lens of the HarrisHarrisHarrisHarris factors, this Court cannot hold that this constitutional error was harmless beyond a reasonable doubt.
SeeSeeSeeSee WilsonWilsonWilsonWilson v.v.v.v. StateStateStateState, ___ S.W.3d ___, 2014 WL 6601218 at *5 (Tex.App.–
Houston [1 st Dist.] November 20, 2014, pet. filed)....
The judgment of conviction entered below must be reversed and the cause remanded for a new trial.
*61 POINT OF ERROR NUMBER EIGHT POINT OF ERROR NUMBER EIGHT POINT OF ERROR NUMBER EIGHT POINT OF ERROR NUMBER EIGHT The trial court erred in denying Appellant’s motion for mistrial after the prosecutor improperly argued that Appellant had “hired a dream team to sit there with him” during final argument of the guilt- innocence stage of trial, in violation of Art. 38.38 of the Code of Criminal Procedure.
STATEMENT OF FACTS STATEMENT OF FACTS STATEMENT OF FACTS STATEMENT OF FACTS In the final moments of rebuttal argument, the prosecutor directed the jury’s attention to the fact that Appellant had hired a trio of lawyers
as set forth in the following exchange:
M R . P ERRY : Again, ladies, it comes down to this, you can decide to give [Appellant] a pass because he is sitting there and has hired a dream team to sit there with him.
M R . G ONZALEZ : Objection.
M R . S ILVERMAN : That is so – T HE C OURT : Sustained. Mr. Perry, have a seat. M R . S ILVERMAN : Judge, at this point in time, that’s a comment – I can’t cite the specific code; but this is a direct violation of the law. We ask that the jury be instructed to disregard the last statement of this prosecutor.
T HE C OURT : The jury is instructed to disregard the last statement.
M R . S ILVERMAN : Actually, I move to strike it first. I move to instruct the jury to disregard it.
T HE C OURT : Granted.
M R . S ILVERMAN : And at this point in time, the defense moves for a mistrial.
T HE C OURT : Denied.
M R . P ERRY : Judge, I would ask for two minutes in the interest –
T HE C OURT : No, sir. Have a seat. Thank you. (5 RR 61).
As soon as the jury retired to begin its deliberations, the following colloquy ensued:
T HE C OURT : Mr. Silverman wanted to put something on the record. Go ahead, Mr. Silverman.
M R . S ILVERMAN : Yes, sir. At the conclusion of the State’s closing argument, the prosecutor had, quote, said that [Appellant] had hired this dream team – this dream team, end quote.
This is a direct violation. The statute that I was attempting to articulate was Article 38.38 of the Texas Code of Criminal Procedure that in a criminal case, neither the judge nor the attorney representing the State may comment on the fact that the defendant’s contacted or retained an attorney in this case.
I would re-urge my motion for mistrial pursuant to Article 38.38.
T HE C OURT : Still denied.
(5 RR 62-63).
ARGUMENT AND AUTHORITIES ARGUMENT AND AUTHORITIES ARGUMENT AND AUTHORITIES ARGUMENT AND AUTHORITIES A. The Standard of Review “The purpose of closing argument is to facilitate the jury’s proper analysis of the evidence presented at trial in order to arrive at a just and
reasonable conclusion based solely on the evidence.” HHHHarrisarrisarrisarris v.v.v.v. StateStateStateState, 122
S.W.3d 871, 883 (Tex.App.– Fort Worth 2003, pet. ref’d). Permissible jury
argument generally falls within one of four areas: (1) summation of the
evidence; (2) reasonable deductions from the evidence; (3) responses to
argument of opposing counsel; and (4) pleas for law enforcement. BrownBrownBrownBrown
v.v.v.v. StateStateStateState, 270 S.W.3d 564, 570 (Tex.Crim.App. 2008). As the Court of
Criminal Appeals cautioned over forty years ago, “The arguments that go
beyond these areas too often place before the jury unsworn, and most
times believable testimony of the attorney.” AAAAlejandro lejandro v.v.v.v. StateStateStateState, 493 lejandro lejandro
S.W.2d 230, 231 (Tex.Crim.App. 1973).
The law provides for, and presumes a fair trial for the accused, free *64 from improper prosecutorial argument. Borjan Borjan v.v.v.v. StateStateStateState, 787 S.W.2d 53, 56 Borjan Borjan
(Tex.Crim.App. 1990). This Court has made it clear that appellate courts
should not hesitate to reverse when the State has departed from one of the
permissible areas in final argument and engaged in conduct that denies
the accused a fair and impartial trial. Washington Washington v.v.v.v. StateStateStateState, 16 S.W.3d 70, Washington Washington
73 (Tex.App.–Houston [1 st Dist.] 2000, pet. ref’d); seeseeseesee alsoalsoalsoalso UnitedUnitedUnitedUnited States States States States
v.v.v.v. MurrahMurrahMurrahMurrah, 888 F.2d 24, 27 (5 th Cir. 1989)(internal quotation marks
omitted)(“Rules of fair play apply to all counsel and are to be observed by
the prosecution and defense counsel alike. ... If anything, the obligation
of fair play by the lawyer representing the government is accentuated.
Prosecutors do not have a hunting license exempt from the ethical
constraints on advocacy.”).
B. The Prosecutor’s Final Argument Violated Art. 38.38 Art. 38.38 of the Code of Criminal Procedure mandates that: Evidence that a person has contacted or retained an attorney is not admissible on the issue of whether the person committed a criminal offense. In a criminal case, neither the judge nor the attorney representing the state may comment on the fact that the defendant has contacted or retained an attorney in the case.
The prosecutor’s remark that jurors had to “decide [whether] to give *65 [Appellant] a pass because he is sitting there and has hired a dream team
to sit there with him,” was a clearly improper, full-frontal attack on the
protections embodied in Art. 38.38. By directing the jury’s attention to the
fact that Appellant had hired a defense “dream team” to represent him,
the prosecutor’s remark improperly invited jurors to consider Appellant’s
invocation of his right to counsel as evidence of his guilt. SSSSeeeeeeee HardieHardieHardieHardie v.v.v.v.
StaStaStaStatetetete, 807 S.W.2d 319, 322 (Tex.Crim.App. 1991)(“Such adverse use of
evidence that a defendant invoked a right of privilege which has been
granted him, is constitutionally impermissible.”); KaliKaliKaliKalisz v. State sz v. State, 32 sz v. State sz v. State
S.W.3d 718, 723 (Tex.App.–Houston [14 th Dist.] 2000, pet. ref’d)(“Because
evidence of an accused invoking his constitutional right to counsel may be
construed adversely to a defendant and may improperly be considered as
an inference of guilt, the trial court erred in admitting Officer Anderson’s
query concerning the right to counsel and everything that followed.”);
GrayGrayGrayGray vvvv. State . State, 986 S.W.2d 814, 815 (Tex.App.– Beaumont 1999, no . State . State
pet.)(“In accordance with HardieHardieHardieHardie and its progeny, we hold the trial court
erred in admitting Gray’s invocation of his right to counsel. ...”); LoyLoyLoyLoy v.v.v.v.
StateStateStateState, 982 S.W.2d 616, 617 (Tex.App.–Houston [1 st Dist.] 1998, no pet.)
(“Appellant clearly invoked his right to counsel. Evidence showing that
was inadmissible.”); seeseeseesee alsoalsoalsoalso ByasByasByasByas v.v.v.v. StateStateStateState, 906 S.W.2d 86, 87 (Tex.App.–
Fort Worth 1995, pet. ref’d)(prosecutor’s final argument accusing defense
attorney of being “slick” was manifestly improper). Because the trial court
recognized this violation of Art. 38.38, it properly sustained Appellant’s
objection and instructed the jurors to disregard the improper comment.
C. This Improper Argument Affected Appellant’s Substantial Rights Because the trial court sustained Appellant’s objection, instructed the jury to disregard the argument, but denied his request for a mistrial,
this Court must determine whether the trial court abused its discretion
in denying a mistrial. Because improper final argument of this ilk is not
one of constitutional dimension, MosleyMosleyMosleyMosley v.v.v.v. SSSStatetatetatetate, 983 S.W.2d 249, 259
(Tex.Crim.App. 1998), this Court must decide if it “had a substantial and
injurious effect or influence in determining the jury’s verdict.” KKKKinginginging v.v.v.v.
StateStateStateState, 953 S.W.2d 266, 270 (Tex.Crim.App. 1997). In resolving this issue,
this Court must balance a trio of factors: (1) the severity of the misconduct
(the magnitude of the prejudicial effect of the prosecutor’s remarks), (2)
the measures adopted to cure the misconduct (the efficacy of any
cautionary instruction by the judge), and (3) the certainty of conviction
absent the misconduct (the strength of the evidence supporting the jury’s
verdict). AAAArchie rchie v.v.v.v. StateStateStateState, 340 S.W.3d 734, 739 (Tex.Crim.App. 2011). rchie rchie
“Mistrial is the appropriate remedy when ... the objectionable events ‘are
so emotionally inflammatory that curative instructions are not likely to
prevent the jury from being unfairly prejudiced against the defendant.”
Young v. State, 137 S.W.3d 65, 71 (Tex.Crim.App. 2004). Young v. State Young v. State Young v. State 1. Severity of the Misconduct 1. Severity of the Misconduct 1. Severity of the Misconduct 1. Severity of the Misconduct The prosecutor’s argument improperly directed the jury’s attention to Appellant’s “dream team” of defense lawyers, inviting them to consider
Appellant’s invocation of his right to counsel as evidence of his guilt. The
argument took place during the State’s rebuttal, when its harmful effect
could not have been attenuated by Appellant’s argument, seeseeseesee BrownBrownBrownBrown v.v.v.v.
StateStateStateState, 978 S.W.2d 708, 714-715 (Tex.App.– Amarillo 1998, pet. ref’d), and
was a final plea made to jurors before retiring to deliberate. SSSSeeeeeeee Barnum Barnum Barnum Barnum
v.v.v.v. StateStateStateState, 7 S.W.3d 782, 794 (Tex.App.– Amarillo 1999, pet. ref’d). This
factor, therefore, weighs in favor of a finding of harm. SeeSeeSeeSee Washington Washington v.v.v.v. Washington Washington
StateStateStateState, 16 S.W.3d 70, 74 (Tex.App.– Houston [1 st Dist.] 2000).
2. Steps Taken to Cure the Misconduct 2. Steps Taken to Cure the Misconduct 2. Steps Taken to Cure the Misconduct 2. Steps Taken to Cure the Misconduct Ordinarily, injury from improper jury argument is obviated when the court instructs jurors to disregard, unless it is so inflammatory that
its prejudicial effect cannot reasonably be cured by an instruction. MMMMcKay cKay cKay cKay
v.v.v.v. StateStateStateState, 707 S.W.2d 23, 37 (Tex.Crim.App. 1985). But this remark was,
by its very nature, inflammatory, and injected new facts harmful to
Appellant into the trial. SSSSeeeeeeee Thompson Thompson v.v.v.v. StatStatStatStateeee, 89 S.W.3d 843, 851 Thompson Thompson
(Tex.App.– Houston [1 st Dist.] 2002, pet. ref’d)(because “argument was, by
its very nature, inflammatory ... an instruction from the trial court to the
jury to disregard such comment would have had no curative effect.”). Not
only did the remark violate Art. 38.38, a mandatory statute, its not-so-
subtle invitation to the jury to consider the “dream team” as evidence of
Appellant’s guilt, violated his constitutional right not to be penalized for
retaining counsel. Accordingly, the trial court’s instruction to disregard
was insufficient to cure the error. SSSSeeeeeeee KellyKellyKellyKelly v.v.v.v. StateStateStateState, 321 S.W.3d 583, 597
(Tex.App.– Houston [14 th Dist.] 2010, no pet.)(“The argument was clearly
inflammatory. The argument occurred late in the State’s final closing
argument and likely left a strong impression on the jury. Thus, the
prejudicial effect of the ... argument was severe.”).
3. Certainty of Conviction Absent the Error 3. Certainty of Conviction Absent the Error 3. Certainty of Conviction Absent the Error 3. Certainty of Conviction Absent the Error While the State will undoubtedly argue that Appellant’s conviction was certain absent the prosecutor’s improper and inflammatory remark,
this rote response is unavailing. While evidence of Appellant’s guilt may
be legally sufficient, “it is not so overwhelming that the error’s effect upon
the jury’s function in determining the facts dissipated.” GGGGrayrayrayray v.v.v.v. StateStateStateState,
986 S.W.2d at 816. Aside from the boilerplate facts testified to by peace
officers in every DWI prosecution, [23] there was no blood or breath test
fortifying the State’s claim that Appellant was intoxicated. In spite of the
relatively brief time spent in trial, the jury deliberated from 10:04 a.m.
until 4:14 p.m. before returning a guilty verdict, (CR 125, 133), compelling
evidence, as this Court held in a similar case, that the State’s proof was
less than overwhelming. LLLLoyoyoyoy v.v.v.v. StateStateStateState, 982 S.W.2d at 618-619 (“[T]he jury
deliberated on guilt for nearly two hours, possibly indicating it thought
the evidence was close.” [24] ). This factor weighs in favor of finding that the
prosecutor’s improper remark affected Appellant’s substantial rights. SSSSeeeeeeee
Bush v. State, 2014 WL 309780 at *6 (Tex.App.– San Antonio 2014, no Bush v. State Bush v. State Bush v. State *70 pet.)(not designated for publication)(“Bush’s evidence of guilt was not ‘very
strong’ and the certainty of conviction was not ‘high’ despite the improper
statement by the prosecutor.”); YYYYorkorkorkork v.v.v.v. StateStateStateState, 2008 WL 2677368 at *11
(Tex.Crim.App. 2008)(not designated for publication)(“The certainty of a
conviction absent the improper argument is extremely speculative.”);
WattsWattsWattsWatts v.v.v.v. StateStateStateState, 371 S.W.3d 448, 460 (Tex.App.– Houston [14 th Dist.] 2012,
no pet.)(“Absent the prejudice from an improper argument, we cannot say
that appellant’s conviction ... was in any way certain.”).
4. Conclusion 4. Conclusion 4. Conclusion 4. Conclusion As all three MosleyMosleyMosleyMosley factors weigh in favor of a finding of harm, this Court has no fair assurance the improper argument did not influence, or
had only a slight effect on the jury’s verdict. SSSSeeeeeeee BushBushBushBush v.v.v.v. StateStateStateState, 2014 WL
309780 at *7 (“[B]ecause all three prongs of the harm analysis weighed in
Bush’s favor, and against the State, we conclude that Bush showed her
substantial rights were affected.”). The trial court, therefore, abused its
discretion in denying Appellant’s motion for mistrial. SSSSeeeeeeee Thompson Thompson v.v.v.v. Thompson Thompson
StateStateStateState, 89 S.W.3d at 851.
The judgment of conviction entered below must be reversed and the cause remanded for a new trial.
CONCLUSION AND PRAYER CONCLUSION AND PRAYER CONCLUSION AND PRAYER CONCLUSION AND PRAYER Appellant respectfully prays that this Honorable Court sustain the appellate contentions here advanced, reverse the judgment of conviction
entered below, and remand the cause for a new trial.
RESPECTFULLY SUBMITTED, /s/ Brian W. Wice Brian W. Wice Brian W. Wice Brian W. Wice ______________________________ BRIAN W. WICE BRIAN W. WICE BRIAN W. WICE BRIAN W. WICE The Lyric Centre 440 Louisiana Suite 900 Houston, Texas 77002-1635 (713) 524-9922 PHONE (713) 236-7768 FAX TBA NO. 21417800 COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT ERIK FORREST FRIEND CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE Pursuant to TTTT EX .R.A.R.A.R.A.R.A PP .P. .P. 9.5(d), I certify that a copy of this brief .P..P.
was served upon opposing counsel, David Bosserman, Appellate Section,
Brazoria County District Attorney’s Office, 111 Locust, Angleton, Texas,
77515, by e-filing on January 9, 2015.
/s/ Brian W. Wice Brian W. Wice Brian W. Wice Brian W. Wice _______________________________ BRIAN W. WICE BRIAN W. WICE BRIAN W. WICE BRIAN W. WICE *72 CERTIFICATE OF COMPLIANCE CERTIFICATE OF COMPLIANCE CERTIFICATE OF COMPLIANCE CERTIFICATE OF COMPLIANCE Pursuant to TTTT EX .R.A.R.A.R.A.R.A PP .P. .P. 9.4(1)(i)(1), I certify that this document .P..P.
complies with the type-volume limitations of TTTT EX .R.A.R.A.R.A.R.A PP .P.P.P.P. 9.4(i)(2)(D):
1. Exclusive of the exempted portions set out in TTTT EX .R.A.R.A.R.A.R.A PP .P.P.P.P. 9.4(i)(1),
this document contains 11,722 words.
2. This document was prepared in proportionally spaced typeface using
Word Perfect 8.0 in Century 14 for text and Times New Roman 12 for
footnotes.
/s/ Brian W. Wice Brian W. Wice Brian W. Wice Brian W. Wice _______________________________ ________________________ ________________________ ________________________ BRIAN W. WICE BRIAN W. WICE BRIAN W. WICE BRIAN W. WICE
[1] Appellant rejected the State’s offer that he plead guilty to the offense of reckless driving, in exchange for a $200 fine. (2 RR 36-37).
[2] During its deliberations, the jury asked to see “the Troopers [sic] report that shows the responses that [Appellant] gave written by Trooper Gonzales [sic].” (CR 139).
[3] This improper final argument comprises Appellant’s Points of Error Nos. 6 & 7, infra .
[4] Although the court held that the admission of the witness list was harmless and did not affect the defendant’s substantial rights because, “Neither the witness list nor testimony about [it] played a major role in the State’s case, id ., for those reasons recounted below, the same cannot be said of the role that State’s Exhibit No. 2 played in the State’s case.
[5] The trial court found that the warnings on State’s Exhibit No. 2 substantially complied with art. 38.22, §2(b), relying on Joseph v. State , 309 S.W.3d 20 (Tex.Crim.App. 2010). (3 RR 236). In Joseph , the defendant continued to make inculpatory statements even after he was apprised of his Miranda rights, and “urged that the detective stay to listen to his explanation” about his version of events. Id . 22-23, 26. By contrast in this case, Appellant made it clear to Gonzalez that he was not going to answer questions that might incriminate him, compelling evidence that he had invoked his constitutional right to silence, and that the trial court’s conclusion that he had purportedly waived this right was clearly erroneous. See id. at 29 (Cochran. J., concurring )(“The prosecution’s burden is great” when the [accused’s waiver of his right to silence] is not express.”)(citation omitted).
[6] The Fifth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides in pertinent part that, “No person ... shall be compelled in any criminal case to be a witness against himself.”
[7] See 3 RR 207-208 (Gonzalez refusing to agree with defense counsel that Appellant’s written responses were tantamount to him invoking his right to silence.).
[8] See 3 RR 214-215 (Appellant’s choice of the words “not saying” was his way of exercising his right to remain silent as a layman.).
[9] Art. I, § 10 of the Texas Constitution provides, in pertinent part, that, “In all criminal prosecutions the accused ... shall not be compelled to give evidence against himself.”
[10] Art. I, § 10 of the Texas Constitution provides greater protection than the Fifth Amendment in cases where the State seeks to comment on, or impeach the accused with, his post- arrest silence. Sanchez v. State , 707 S.W.2d at 580.
[11] “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”
[12] See Gigliobianco v. State , 210 S.W.3d 637, 641 (Tex.Crim.App. 2006)(“probative value means more than simply relevance.”).
[13] Constitutional Error . “If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”
[14] (“[W]e would like the Troopers [sic] report that shows the responses that [Appellant] gave written by Trooper Gonzalez [sic].” (CR 139).
[15] The State argued that Appellant failing the horizontal gaze nystagmus test administered by Trooper Gonzalez was compelling evidence of his intoxication. (5 RR 50, 53). Notably, Dr. Juliet Farmer, Appellant’s optometrist, testified that because of his amblyopia, Appellant’s eyes did not track normally, resulting in a latent horizontal nystagmus, that would account for Gonzalez’s testimony that he detected horizontal gaze nystagmus in Appellant’s eyes. (4 RR 251-252, 259).
[16] Unlike the facts in this case, the defendant in Loy was speeding, swerved, and screeched to a halt, ignored multiple requests to exit his vehicle, had such difficulty standing that an officer was called in to keep the defendant from falling, and gave the officers a cup of toilet water instead of a urine sample. Id . at 618.
[17] Other Errors : “Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”
[18] Because the court sustained Lajoie’s claim that the trial court erred in admitting evidence that he invoked his right to counsel, it did not reach his claim that the trial court erred in admitting evidence that he invoked his right to remain silent. Id . at 355 n. 3.
[19] Constitutional Error . “If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”
[20] (“[W]e would like the Troopers [sic] report that shows the responses that [Appellant] gave written by Trooper Gonzales [sic].” (CR 139).
[21] The State argued that Appellant failing the horizontal gaze nystagmus test administered by Trooper Gonzalez was compelling evidence of his intoxication. (5 RR 50, 53). Notably, Dr. Juliet Farmer, Appellant’s optometrist, testified that because of his amblyopia, Appellant’s eyes did not track normally, resulting in a latent horizontal nystagmus, that would account for Gonzalez’s testimony that he detected horizontal gaze nystagmus in Appellant’s eyes. (4 RR 251-252, 259).
[22] The defendant in Loy was speeding, swerved, and screeched to a halt, ignored multiple requests to exit his vehicle, had such difficulty standing that an officer had to keep him from falling, and gave the officers a cup of toilet water instead of a urine sample. Id . at 618.
[23] The State argued that Appellant failing the horizontal gaze nystagmus test administered by Trooper Gonzalez was compelling evidence of his intoxication. (5 RR 50, 53). Notably, Dr. Juliet Farmer, Appellant’s optometrist, testified that because of his amblyopia, Appellant’s eyes did not track normally, resulting in a latent horizontal nystagmus, that would account for Gonzalez’s testimony that he detected horizontal gaze nystagmus in Appellant’s eyes. (4 RR 251-252, 259).
[24] Unlike the facts in this case, the defendant in Loy was speeding, swerved, and screeched to a halt, ignored multiple requests to exit his vehicle, had such difficulty standing that an officer was called in to keep the defendant from falling, and gave the officers a cup of toilet water instead of a urine sample. Id . at 618.