*1 rеcords of obser- solely of field notes and that, this rec- say cannot
vations. We
ord, its discretion trial court abused daily audits do not
determining that priv- subject to the reports as audit
qualify by the Act.
ilege provided Tex.Rev.Civ. 4447cc, (defining § 4 and de- art.
Stat. report). of audit We
scribing contents did not abuse its hold the trial court
also testimo- ordering the limited
discretion Management employee Ohle-
ny of Waste
macher.
Therefore, deny Manage- Waste of man- petition for writ
ment’s conditional
damus. PHILLIPS, Appellant,
Robert Texas, Appellee. STATE
Nos. 14-02-00193-CR to
14-02-00195-CR. Texas,
Court of (14th Dist.).
Houston
Feb. *4 Houston, for Chagnard,
Belinda Johnson appellant. Houston, Smith, appellee. Ann
Kelly Justice Panel consists Chief and and FOWLER BRISTER Justices EDELMAN. three charged appellant
MAJORITY OPINION ON REHEARING assault of a child. The counts sexual appellant guilty found of all three FOWLER, McKEE Justice. WANDA counts. opinion withdraw our We issued Novem- 20, 2003, following ber substitute the DISCUSSION opinion rehearing. on motion for Appellant appeal. raises nine issues on appellant guilty A found of three issue, In appellant his first contends child, counts of sexual assault of a grant trial court erred when refused to years’ sentenced to ten confine- on a wit- his motion for mistrial based in the Texas Department ment Crimi- of- ness’s comment about extraneous Justice, nal Institutional and a Division third, second, fense. Combined $5,001.00 fine for each count. In nine issues, appellant argues ninth the trial appeal, appellant issues on complains compel court failed to the State to elect (1) by refusing court erred rely upon which transaction it *5 would grant though a mistrial even witness fourth, fifth, seventh, conviction. In the (2) offense, had an mentioned extraneous issues, eighth appellant complains and by requiring spe- not the State to elect a trial erred to court when refused (3) transaction, by cific refusing grant to a grant a mistrial because of the State’s improper jury mistrial on the ar- basis jury arguments. Finally, in improper (4) gument, by refusing to grant a issue, sixth he asserts the trial court erred mistrial because the improperly State grant when it refused to a mistrial because appellant’s commented on right jury to a improperly appel- the State commented on trial. affirm in part We and reverse in jury to a trial. right lant’s offenses, part. For two of the indicted we reverse because we conclude the trial I. IMPROPER COMMENT EX- ON court committed harmful error not re- TRANEOUS OFFENSE quiring the to elect State which offenses it First, appellant argues the trial relying on for conviction. For the by him granting court erred not a mistrial offense, third indicted affirm we because when the mentioned an extra complainant presented specific testimony appellant’s request, neous offense. At only occurrence; count, one on this disregard trial court instructed the required State was not to elect. Nonetheless, the statement. he clаims a mistrial was warranted. We review a trial FACTUAL AND PROCEDURAL court’s denial of a mistrial under an abuse BACKGROUND State, standard. Ladd v. 3 discretion Appellant initially fifteen-year- hired the 547, (Tex.Crim.App.1999), 567 cert. S.W.3d complainant English old to teach him , denied, 1680, 529 120 146 U.S. S.Ct. 1070 help they him with his business. While (2000). L.Ed.2d 487 working together, appellant sexually were complainant; assaulted the this sexual ac- An instruction the trial court tivity continually disregard improper testimony escalated for months. will usu 10, 2000, State, appellant ally Campos On March took the cure error. v. 589 424, complainant they to a hotel room Za (Tex.Crim.App.1979); where S.W.2d 428 (Tex. State, 294, engaged activity. complain- sexual taraus v. 296 S.W.2d 1984, ant eventually App.-Houston pet.). told her mother of the activ- [14th Dist.] ity, police. and her mother notified the the trial court instructs a When jury’s presence, appellant’s disregard, presume jury follows Outside requested a trial trial court’s counsel mistrial. The instructions. See Waldo (Tex.Crim. mistrial, 752-53 court denied the but instructed S.W.2d However, if disregard question the error-is last App.1988). ex tremely prejudicial and cannot be with the last answer.1 minds, trial juror’s drawn from the First, comment we do not find that the should a mistrial. Lusk court declare See obviously to an extraneous offense. refers (Tex.App.-Amar if extraneous But even it did refer 'd). 2002, pet. Accordingly, illo ref a mistri offense, the was inadvertent and remark when is “so appropriate al is the event Moreover, single isolated.2 reference emotionally inflammatory in that curative activity any possible between likely to prevent structions not are complainant’s and the sister was not “so being unfairly prejudiced emotionally inflammatory”3 that the 60; Id. see also against defеndant.” at disregard court’s instruction to did Shepherd v. 915 S.W.2d Lusk, at 60. cure all error. ref'd) (Tex.App.-Fort pet Worth comment, vague nature Given (holding repeated comment on defen the trial court did abuse its discretion testify failure mistri dant’s warranted a mistri- denying appellant’s motion for al). Ladd, We over- al. See Here, questioned the State rule first issue. *6 acts,
complainant specific she allud- about by appellant. to an offense ed extraneous II. TO ELECT A TRANSAC- FAILING stated, in following: the part, She TION FOR EACH OFFENSE At 14 right. point All some [The State]: nine, two, In issues three and later, later, 16 months 15 months complains that the trial court committed 2001, later, May months around did it error failed to reversible finally you your tell mom? it which transaction the State elect Complainant]: finally my I told [The three rely for each of the upon would my mother sister after confessed As to of thе indict- indicted offenses. two something. offenses, that trial court agree ed we by requiring I will that last not to elect Attorney]: ask erred State [Defense transaction, was jury be and that the error statement be stricken and the of- disregard. May ap- we harmful. As to the third indicted instructed to bench, penetration eomplain- Your Honor? fense—the proach the phrase imply that an instructed State to 3.We do not use this 1. The court also explain again impact confer with its witness and assault on the sister would not testify all; what evidence she c’ould could not only point that at use it make about. exactly given, we do not know no detail was to, referred and it what comment fact, complainant may said the In have type briefly. This is not the mentioned softly that not last comment so could testimony normally would inflame that rеporter heard her. The cotut recorded have prevent following court’s juiy it "something” read that back the word instruction. court, believed the trial while trial court attorney The the word was "him.” defense barely reporter court could admitted hear her.
349 (cid:127) verdicts, is, mouth organ ant’s sexual find to ensure unanimous —we jurors no harmful error. that one agreeing all of the incident, specific which constituted Legal Underlying A. Premises charged the offense the indict Requirement. Election occurred, ment, see Francis v. general rule is “where one (Tex.Crim. act alleged of intercourse is in the indict App.2000); and ment and more than one act of intercourse (cid:127) give the defendant notice of the by is shown the evidence in a sexual as particular offense the State intends trial, sault the State must elect the aсt rely upon prosecution and af- upon rely which would for conviction.” opportunity ford the defendant an (Tex. O’Neal v. O’Neal, defend, see rests, Crim.App.1988). Before the State 772-73. the trial court has discretion in directing also Dix and Dawson, PRACTICE, Texas the State to make an election. See id. Procedure, Criminal Practice and Election “However, once the State its rests case ” Transactions, Acts, Among “Offenses, or chief, in timely by the face of a request Incidents, 30.52-30.60, §§ pp. vol. 664- defendant, the trial court ... must order (2d ed.2001). the State to make its election. Failure to The State admits the trial court erred 772; do so constitutes error.” Id. at see by requiring the State to elect an act also Crosslin v. 90 Tex.Crim. date, and a and we find the trial court did (1921). S.W. instructing err to elect a given Case law has four reasons Having transaction. See id. found that the rule: erred, the trial court our next task is to (cid:127) protect the accused from in- determine whether the error was harmful. offenses, troduction of extraneous see review, problems complicate Two *7 State, 792, Fisher v. 33 Tex. 794 which we in will address turn. (1870); by Complaint Giving B. Not Waived (cid:127) to minimize the risk that the Wanting a Bad Reason for an Election. convict, might choose to not because one or more proved crimes were be- complicating The first fact is yond doubt, a appeal, appellant gives reasonable but be- that on a different all together cause of them wanting convinced reason for the election than he the guilty, trial, the defendant was gave the trial court. At (“The see id. jury may have taken jeopardy advanced double concerns as his account, But, both [offenses] into for an seeking reason election.4 on have considered that appeal, appellant one or the oth- contends that the State’s sufficiently er was not made precluded out to failure to elect him from estab conviction, lishing warrant a but that both an In spite alibi defense. of this together guilt convinced of the of disparity complaint [it] between the at trial defendant....”); the complaint appeal, and the on we hold that Goodbread, jeopardy parte 4. Double concern is not valid rea- duced at trial. Ex 967 859, wanting (Tex.Crim.App.1998). son for an election. If the State does S.W.2d 860-61 elect, So, prosecuting theoretically, pro- not it is barred from in the the defendant is more any scope prosecution multiple future offense within the of the tected offenses fоr indictment for which evidence was intro- if the State does not elect than if it does. 350 complaint case
appellant did not waive his constitutional. We find the law from have required Appeals the court should State to the Court of Criminal unclear on issue, for three elect transaction offenses.5 this and the intermediate appellate law, although case on type clear what preserve complaint appel for To is, unconvincing inadequate error it review, late a defendant must make a time to held why as the courts have that the objection, ly request, specif or motion that error is non-constitutional or constitution- ically grounds requested states the for al. Tex.R.App. 33.1(a)(1). ruling. P. “An ob jection may Appeals Two have held that stating legal one not be Courts basis failing require in to support legal theory used a different on error State State, 528, appeal.” v. in Jensen elect is non-constitutional nature. See (Tex. 2002, 681, (Tex.App.-Houston Dist.] 536 72 [14th Cates v. S.W.3d 'd). pet ref App.-Tyler pet.); Wilson (Tex.App.-Waco S.W.3d Although appellant advances a dif 'd). disagree. pet. respectfully ref We wanting ferent an on reason election analysis in on a trial, The Wilson was based appeal legal than he advanced at Appeals decision the Court of Criminal basis for his motion remained same: regarding specificity Garcia v. State he the offenses it wanted State elect Wilson, in an of the date indictment. rely would on for conviction. The trial Garcia, In opportunity court was not denied an to S.W.3d Court failing speci- rule on Criminal held that require whether election. regardless mandatоry, fy precise election was an indictment date O’Neal, 746 charged the stated reason. See which occurred is not offense (“[0]nce at 772 the State rests its case constitutional error. Garcia chief, request by of a timely (Tex.Crim.App.1998). the face Re- defendant, trial ... decision, court must order lying the Wilson court on this election”). fact, the State to make its In an that a failure “concludefd] elect, required for the to be State by the is not error of election Wilson, needs for an defendant to ask elec See constitutional dimension.” tion; why he he it. court, need state wants S.W.3d at 226. Unlike the Wilson wanting id. The reason does issue irrelevant believe Garcia is issue, judge matter. this On now us. before *8 an question; should not have in advanced Garcia Three reasons were right in the of requested type election is specify precise as to to a why failure case, mandatory. an is See id. election not was constitu- date in the indictment Require to An Elec- C. The Failure tional: tion is Constitutional. First, is a material element of time not (at least, usually). an Sec- appellant offense
Having
that
concluded
specifying
of
a
ond,
primary purpose
appeal
can
a new reason on
want
raise
notify
is not to
election,
in the indictment
ing
compli
an
we turn to the next
date
review,
is,
of
offense
cating
the accused of the date
factor of our
that
prosecution
is
or
but rather to show that the
whether the error
constitutional
non-
inabili-
appear
5. Nor
the State
to contend that
issue
trial demonstrates
does
alibi,
argument. The
ty
waived the
State
not waiver.
to establish
appears
argue that
to
to
the failure
raise
error,
by
is not barred
the statute of limita- ure to elect is a constitutional
them,
Third,
cited,
may
description
tions.
it
and its
of
impossible
be
cases
precisely,
certainly
know
or even
indicate that the court believed
approximately,
charged
when the
of-
in
the error was constitutional
nature:
person
liberty
fense occurred.
cannot incur the loss of
“[A]
for an offense
notice and a mean-
without
(internal
Garcia,
Unlike the Cates and Wilson reasonable doubt each of the offenses Appeals, committed, Austin Court of in Gutierrez v. but because it was con right held that guilt the vinced of because of the number of State to elect is alleged underly constitutional nature. incidents. If the reason Gutierrez v. ing requirement unanimity, 8 S.W.3d ap (Tex.App.-Austin pet.). Although pears that the error is constitutional say the Gutierrez court does the fail- nature.6 See Francis v. *9 right
6.
App.1998).
question
The State contends that
a
to unani
The
is therefore whether
right
mous verdict is not
such a
constitutional in nature.
exists under the Texas Constitu
clearly
The United States
tion.
Constitution
does
grant
right
a
not
to a unanimous verdict. See
applicable
text of the Texas Constitu-
404, 410-12,
Apodaca Oregon,
v.
406 U.S.
92
only
petit juries
tion states
that "Grand and
in
1628,
(1972).
S.Ct.
121, right (finding pro to elect was a of constitutional (Tex.Crim.App.2000) possible because it was that six apply analy error and we will the error portions the jury appellant members of convicted used for constitutional error. See Tex. sis R.App. 44.2(a). on one sexual offense and six convicted P. offense).7 If the him of another sexual Using the error constitutional notice, underlying is as
reason
election
review,
un
standard of
we must reverse
O’Neal,
in
the Gu-
agree
stated
with
beyond
doubt
less we find
a reasonable
that
tierrez court
federal case law seems
that
the error did not contribute to the
support
adequate
a conclusion that
notice
elect,
Id. If
fails to
conviction.
the State
meaningful
a
to defend
opportunity
presented clearly indi
the evidencе
but
O’Neal,
are constitutional
nature.8 See
is
specific
cates which
incident
772; Gutierrez,
746
at
8 S.W.3d at
S.W.2d
on,
relying
the error is not harmful. Com
danger
If
748.
the reason is to avoid the
O’Neal,
(finding
pare
at 772-73
on the fre-
that
convicted based
“[b]y
harmless
the close
error was
because
of incidents
than on evi-
quency
rather
case,
act
clear that the
State’s
was
jury beyond a
dence that convinced the
rely
con
upon' which the State would
actu-
reasonable doubt that
defendant
24, 1984”),
that, too,
occurred
offense,
April
viction
ally committed the
would
Wilson,
(finding
at
error was
3 S.W.3d
to be
in nature. As we
seem
constitutional
...
below,
evidence
in more detail
all three rea-
harmful because “the State’s
discuss
result,
particular
for which
points
here.9
a
we conclude
two
incidents
apply
sons
As
right
defendant]
the State
could have found
require
[the
that
Courts,
single indictment
civil cases in the
nine mem-
ent offenses contained in a
District
jury, concurring, may
bers of the
render
charged
disjunctive so that it was
were
in the
V,
§
verdict...."
13.
art
This
part
that one
possible for
Const.,
to believe
Tex.
in a
section does not state that a defendant
part to believe the
offense occurred and for
criminal case is
to a unanimous ver-
entitled
yet still convict.
other offense occurred and
so, however,
limiting
implies
its
dict.
It
it said it
The court reversed because
provision
verdict to
for non-unanimous
jury might
have
"possible" that the
not
been
civil cases.
Francis,
125.
unanimous. See
has also
The Court
Criminal
error, especial-
This sounds like constitutional
right
that there is a
to a
stated
constitutional
opinion
ly
Court
in the
since the
noted earlier
Sеe,
verdict
cases.
unanimous
in criminal
jury ver-
importance of
"the
a unanimous
(Tex.
e.g.,
Molandes
571 S.W.2d
Thus,
reasons for
dict.” Id.
if one of the
Crim.App.1978) (referring to "the constitu
jury, the
unanimous
election is
ensure a
felony
right to a
tional
unanimous verdict
be
would seem to
failure to
election
cases").
stating
expressly
Even
not
constitutional error.
constitutional,
right
Crimi
the Court of
Appeals has cited
above section of the
nal
before the cur-
8. O’Neal was
in 1988
written
support. See
Texas Constitution for
Brown
analysis and therefore
rules for
rent
error
(Tex.Crim.App.
508 S.W.2d
today.
apply
analysis
1974);
used
does
also
see
Midence v.
(Tex.App.-Houston [14th Dist.]
(citing
proposition
pet.)
section 13 for the
apply
Arguably,
here
lack of
does
notice
“[ujnanimous
required in
verdicts are
below
because
never claimed
cаses.”).
guid
felony
clear
criminal
Absent
help
estab-
needed an election to
him in
he
Appeals that
ance from the Court of Criminal
although he
lishing
appeal;
an alibi and on
right
consti
to a unanimous verdict is not
reversal,
points
argues
he
this as
reason for
nature,
authority.
this
tutional
we follow
support
nothing
would
record that
*10
specifics.
claim and he mentions no
7.Although
ultimately
an elec-
Francis
is not
charge
appeal
is-
tion case—the
dealt with
Francis,
is still
In
two differ-
sues—it
useful.
guilty
prove
and innumerable other instances
dence to
that
complainant] generally
complainant
which
de-
went to the motel. Clear tes-
[the
jury
timony
presented
types
scribed for which the
could have
was
that both
of
Thus,
found
guilty”).10
penetration
[the
occurred at the motel.
defendant]
testimony
specific
clear
exists for two
oc-
Offenses,
D.
of the
On Two
Indicted
digital
pen-
currences of
and oral
both
Error was Harmful.
etration, along
testimony—
further
For two of the
digital
offenses'—
date,
vague
vague
often
on the
much less
and oral penetration of the female sexual
describing
they
on
the acts—that
often
organ
clearly do not know the occur
—we
occurred.
rence the
relied on to convict. De
made,
closing arguments
When
were
of
tails
more than a few offenses were
any specific
State did not refer to
incidents
presented.11
testimony
relatively
or
point
offenses. Not once did it
to a
clear about the
type
first time each
oc
place
or
or
date
time
where even one
curred, and that
appel
these occurred at
Instead,
occurred.
spent
offеnse
the State
But,
apartment.
lant’s
after these first
its time
out
pointing
that
de-
instances,
times,
both occurred numerous
fense was unbelievable and that
the de-
always
appellant’s apartment.
General
vilify
strategy
complain-
fense
was to
ly,
specific
given,
dates were
and some
ant.
times the occurrences were not even iden
month;
does,
however,
Thus,
tified
it
appear
both offenses were de
they may
that
weekly,
once;
have occurred
al
in
yet,
scribed
detail more than
it
though
slightly
the record is
completely
unclear even was
unclear to the
which
on this
A
point.12
second date
rely upon
also stands
act the State would
for convic
O’Neal,
out
complainant
because the minor
testi
tion.
at 772-73
Cf.
fied that these two offenses
at a
(finding
occurred
error harmless becаuse the evi
motel;
receipt
clearly
was introduced into evi- dence
indicated which act the State
Q.
now,
Although
10.
the Wilson court concluded the
And
let's move into the summer
harmful,
every-
error was
that decision was made
of 2000 and the fall of 2000. Did
discussed,
using
thing
you’ve
you
told
lesser standard for non-constitution-
Wilson,
yesterday
today,
..
both
al error. See
.
take
The Court of
Criminal
has ac-
that the
have known the specif-
would
knowledged
general statements of re-
ic act on which the
relied.
State
On this
peat
may support
occurrences
a conviction.
assault,
particular act of sexual
the testi-
Rodriguez
mony
of the sexual
revealed the details
act
(Tex.Crim.App.2003). The Court held
performed at a hotel. As to other occur-
“[tjestimony that a defendant delivered co-
rences,
‘maybe
testimony
was
caine
20 or 30
is sufficient to
times’
support
repeated,
any
behavior was
without
detail
delivery
conviction for a
of-
how,
when,
as to
where.
testimony
exactly
fense.” Id. That
“was not
or
This is
evi-
quite
dence of
...
other two
ap-
extraneous offenses and
different from the
acts
pellant’s remedy
than
complainant gave
was
which the
more
one
State
sought
elect the occurrence on which it
detailed account.14
fact,
record,
happened maybe
13.
In
on this
a traditional harm
20 or 30 times" was suffi-
analysis
essentially impossible. Appellant
cient,
O’Neal,
conflicts with
dоes claim that the failure to elect denied him
holding
required
when
that no election
appellate
sufficiency
effective
review of the
given
were
but other-
details of one offense
evidence; however,
he does not raise
testimony
wise the
that it occurred
showed
claim, and,
separate sufficiency
impor-
more
basis,”
regular
"on a
355 Thus, reasoning prosecutor we follow the a makes un When failing O’Neal and hold that error in to accusations of invited and unsubstantiated require the State to elect is harmless when improper conduct directed toward a defen there is testimony detailed as to one occur attorney, attempt prejudice dant’s in an general, very rence and vague unspe defendant, jury against courts re testimony cific as to other occurrences. striking fer to this as a defendant over the Because the State focused its attention on shoulders of his counsel. See Gomez v. occurrence, particular one it would have (Tex.Crim. State, 770, 704 S.W.2d been clear to both and the seen, App.1985). example, This can be relying that the on that occur prosecutor argues when the that defense rence to convict. Error as to the third evidence, counsel has manufactured sub offense was therefore harmless. perjury, accepted money, orned stolen or represented Washington criminals. v. III. IMPROPER JURY ARGUMENTS State, 110, (Tex.App.-Waco 822 S.W.2d 119 Next, appellant complains that 1991), grounds, rev’d on other 856 S.W.2d court erred in not granting a mistrial (Tex.Crim.App.1993); 184 see also Wilson arguments prosecutor based on made State, 57, (Tex.Crim.App. 58 S.W.2d in his closing. any The trial court cured 1996) (finding the statement “[defense error as to two of improper arguments you guilty wishes ... turn a counsel] by instructing disregard them. man ... free because he doesn’t have the arguments improper, The last two were obligation justice see is done” was any and before the without instruc- State, improper); Anderson v. 525 S.W.2d tion, but we find the error harmless. 20, 21-22 (Tex.Crim.App.1975) (finding the State struck over the shoulders of the Proper jury argument must (1) fall within one defense when the State accused the de of four areas: summa (2) evidence; attorneys lying). Generally, tion of the fense a reasonable deduc (3) evidence; tion from the to op answer trial court cures error from an im (4) posing arguments; plea counsel’s or proper jury argument when instructs for law Brandley enforcement. disregard the сomment. See 699, 712 (Tex.Crim.App.1985). Wilkerson v. S.W.2d Improper closing arguments include refer (Tex.Crim.App.1994).
ences to facts
evidence or incorrect
Appellant
following
contends the
com-
statements of law. Parks v.
by
ments
him
State struck at
over the
(Tex.App.-Corpus
Christi
shoulders
his counsel:
ref'd).
1992, pet.
improper jury
For an
argument
reversal,
going
very long,
1. “I am not
to talk
mandate
it must be
extreme,
statute,
I’ll
mandatory
basically
you
violate
or
leave
with a
inject new facts
couple things
you
into the record. Brand
I would ask
ley, 691
good
good
712-13.
think about
heart —
Yet, O’Neal,
"maybe
rences.” id.
court held
20 or 30 occurrences” is sufficient
election,
testimony
only requires
that the offense occurred “on a
itself
convict and
case,
regular
testimony
basis” would not confuse the defen-
but in another
that the offense
regular
apparently
dant about which offense the State
cho-
occurred
had
"on
basis”
prosecute
presented
enough
sen to
because it
details
not detailed
an election
argued only
coupled
testimony
one offense and
that of-
with detailed
of one
91;
closing argument.
Rodriguez,
fense in
746 S.W.2d at
incident. See
104 S.W.3d at
Thus,
case,
O’Neal,
testimony
772-73.
in one
heartedly
they get
jury
talk
in-
up
while
and
ments
which
received an
minutes,
disregard,
you
to
30
and
struction to
last two
about
First,
jury
that is this.
there
hours
statements for which the
did not.
are
needless, miserable,
hours of
and
Arguments
A.
an
to
Instruction
and
hopeless
pathetic pecking at
Disregard.
State’s case.”
instances,
In most
an instruc
know,
do I
You
if a
“Where
start?
an
disregard
improper jury argu
tion to
caught
trap
steps
man is
in a
he
any
v.
ment will cure
error. Wesbrook
it,
coming....
may
didn’t see it
He
State,
(Tex.Crim.App.
115
tree,
cry,
bark and
on the
chew
chew
2000).
flagrant
Only offensive or
error
off,
paw
through
his own
chew
mandate reversal after a trial court’s
will
chain,
any-
whatever. He will do
instruction to
Id. at 116.
disregard.
a
thing.
may
And it
be
crude com-
Here,
ap
the trial court
sustained
quickly
parison
you
but if
think hard about
objections and
pellant’s two
instructed
it,
it,
good and
about
it’s not
hard
jury
disregard
to
State’s comments.
you
here.
unlike this case that
have
error,
Although
not so
comments were
you do
you’re caught
Because when
highly inflammatory
a
could
everything
your power
get
to
out.
ignore them.
v.
Garcia
943 S.W.2d
your lawyers
per-
have
make
You
(Tex.App.-Fort
Worth
me, you
and
get up
sonal attacks on
(holding
assessing
that when
the cu
pet.)
objec-
speaking
make ten-minute
statement,
a
rative effect of
the correct
tions, you-—”
inquiry is whether or not
statement
got
get
again
3. “—she’s
when she
to
inflammatory
so
than an instruction
up
They
nailed her
came
here.
disregard
prejudicial
could not cure its
cross,
whore,
they
on a
called her
effect).
the record shows no evi
Since
they
they
girl,
called
a dream
her
contrary,
assume the
dence
we
a
called her
liar.”
trial
instruction to dis
followed the
court’s
ability to
4. “Armed with that awesome
regard. See
Gardner
you
do?
right
going
do
what are
denied,
675, 696
cert.
(Tex.Crim.App.1987),
you
the most
going
Are
validate
905, 108
U.S.
S.Ct.
98 L.Ed.2d
lame, ridiculous, self-serving, pathet-
(1987). Therefore,
trial court cured
him,
guy
ic
while
story from
who
error,
these two is
and we overrule
guts
have the
he testified did not
by appellant.
sues
you
you going
Are
eye?
look
Arguments
Instruc-
B.
without
15,16 year
girl,
a
she’s
believe
old
Disregard.
tion to
now,
courаge
who
has
to a
get
come in here and
nail[ed]
the State’s last
We now address
gutted for no
cross and
reason.”
an in
two comments that did
receive
Practically
objected
disregard.
speak
Appellant’s attorney properly
struction
a
ing,
precise
The
court
it is
to articulate
impossible
to all four statements.
prosecutor
objection
first
rule to determine when
appellant’s
to the
sustained
statements,
counsel’s shoul
striking
to dis-
over the defense
two
instructed
making proper
and
he is
regard,
denied the motions for mistri-
ders
and
However,
parts
find that
argument.
al.
trial court
overruled
up
her
arguments
the State’s
objections to the last two statements. We
—“nailed
cross,”
cross,”
“called
to a
separately the first two state-
“nail[ed]
will discuss
improper
probably
strength
supporting
her whore”—were
of the evidence
conviction).
at appellant
did strike
over his counsel’s
Mosley, 983
at 259.
is,
That
shoulders.
the comments were
Thus,
severity
we look first at the
of the
targeted
handling
defense counsel’s
id. at 259. As we stated
comments. See
case,
and were made toward defense
earlier, calling
complainant
a “whore”
personally.
Mosley
counsel
“nailing
stating
that the defendant was
*14
249,
(Tex.Crim.App.1998).
983 S.W.2d
improper
her to a cross” are
statements.
trial
by overruling
court erred
the
inflammatory;
we find somewhat
“Whore”
objections
appellant’s
to these
argu-
two
“nailing
to a cross”
in-
her
is rather
ments.
flammatory
capable
and the most
of incit-
That means we must deter
ing
moderately
emotion. We find them
mine whether the trial court’s error war
extreme.
Tex.R.App.
rants reversal. See
P. 44.2.
Second,
triаl court
appel-
the
overruled
The Texas Court of
Criminal
objections,
lant’s
so it did not cure the
rulings
characterized erroneous
regarding
State’s misconduct.
But it
See id.
did
improper jury argument as non-constitu
their
in-
impact
by
minimize
somewhat
tional or “other
error” within Rule
structing
jurors
at the time of the
44.2(b).15
259;
Mosley, 983
at
S.W.2d
Or
objection to decide the case on the evi-
State,
600,
(Tex.
tiz v.
999 S.W.2d
they
dence
heard
the witness stand.
App.-Houston
pet.).
[14th
Dist.]
Finally,
certainty
we must look at the
of
44.2(b) requires
Rule
us to examine the
conviction
appellant’s
absent the miscon-
error in relation to the
proceeding
entire
A good
duct. See id.
deal of evidence
to determine
it
whether
had a “substantial
in
appellant
sexually
showed that
did
fact
injurious
effect or
influence
deter
complainant.
receipt
assault the
A motеl
mining
jury’s
King
verdict.” See
v.
appellant spent
day
confirmed
with
State,
(Tex.Crim.App.
complainant
sexually
where he
assaulted
1997); Ortiz, 999
at
In
other
A telephone
her.
conversation between
words, if we are assured the error did not
appellant and
complainant
was record-
jury,
influence the
slight
or
had a
by police,
appellant
ed
in which
admitted
effect, we must affirm the trial court. See
and,
teaching
complainant
about
sex
Johnson v.
which,
response
query
to her
about
(Tex.Crim.App.1998).
threesome,
they
would have another
In Mosley, the court relied on the fol-
they
said
would talk about “The
lowing
analyze
three factors to
the harm
Three Musketeers” later. Doctors testi-
associated with improper jury argument
physical
fied about the
linking
evidence
and to determine whether reversal was
appellant.
assault to
(1)
required:
severity
of the miscon-
(the
Thus,
magnitude
duct
of
we find
comments to be error.
prejudicial
ef-
(2)
But,
remarks);
prosecutor’s
though improper,
though
fect of the
even
even
adopted
poor advocacy, they
measures
are not
inflammato-
cure the misconduct
so
(the efficacy
ry
cautionary
instruction
as to
reversal. And even
(3)
judge);
certainty
though
judge
trial
did not sustain the
(the objection
conviction absent
the misconduct
he should have—when
—which
3;
improper jury arguments
15. Some
could be
S.W.2d at 606 n.
Ortiz
prosecu-
Thompson
(Tex.App.-
considered constitutional error if the
charged assuring IMPROPER COM- IY. ALLEGED not used of proof offense evidence be as MENT TO TRI- ON RIGHT JURY assuring a conviction be guilt, and that AL Al- jury on verdict. based a unanimous two, three, ap- though and nine of issues Finally, appellant complains also all error to the pellant’s assign brief his improperly commented on require the State to make court’s failure to jury trial. right argued, The State provide the cor- required election and following: part, charge, in the responding instructions Now, go to it. It’s [State]: let’s back collectively that claim these three issues and they up like nailed to a cross her rights fair only his appellant was denied her and put a crown of thorns on head opportunity of notice the offense and peck let the birds at her. And it’s defend, of extraneous limitation on the use re- get that cases don’t wonder these evidence, appellate and effective offense ported. only had to It’s she sufficiency of evidence. review the and over over get victimized over any Although issues allude none of these by him— unanimous way appellant’s right objection, Despite timely analysis verdict, majority’s harm trial court allowed the statement. on largely reversal is based resulting discussion, from a denial arising harm potentiаlly As our earlier evidenced these im I believe right. Because part probably this comment appel should instead be decided based but it was not a comment on issues proper, violat- rights they contend were Taylor trial. See which right lant’s therefrom, I do arising any harm (Tex.App.-Tex ed 'd). sustaining of majority’s agree That pet. arkana ref violation objection comment. those issues on unasserted appellant made right to a unanimous verdict. appellant’s final issue. overrule We I Nor do believe that a violation of that always
right presumed upon can be a fail- incidents, among
ure to elect multiple as where, majority suggests, even as
here, there is no difference in the credibili-
ty incidents, of the evidence of the various jurors
such would have had rea-
son differ on whether a defendant was
guilty of one versus another.
Lynn GOETZ, Appellant, Rae Levit
Joseph GOETZ, Appellee. Samuel
No. 14-02-01164-CV. Texas,
Court of (14th Dist.).
Houston
Feb. Jr., Pasadena, Mahoney, P.
Walter appellants. Lord, Trusch,
Beverly Norma Levine Bavousett, RandaU B. A. Wilhite Steve Houston, appellees.
Panel consists of H. Justices RICHARD EDELMAN, FROST, and GUZMAN. OPINION EDELMAN, RICHARD H. Justice. case, Lynn In this divorce appeals Goetz (the portions of the divorce decree “de- cree”) grounds on the court