Snowden v. State

Full title: RION PHEAL SNOWDEN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 28, 2010

No. 05-09-00652-CR (Tex. App. Jul. 28, 2010)

Opinion

No. 05-09-00652-CR

Opinion Filed July 28, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F09-00559-I.

Before Justices RICHTER, LANG-MIERS, and MYERS.

OPINION

Opinion By Justice RICHTER.

A jury convicted appellant of assault causing bodily injury to a member of his family and/or household, enhanced with a prior conviction of assault of a family member, and assessed punishment at two years' imprisonment. In two issues on appeal, appellant argues the trial court erred in overruling his objection to a comment concerning his failure to testify and the evidence is insufficient to establish his prior conviction. We conclude the trial court erred in overruling the objection. Because we cannot conclude beyond a reasonable doubt that the error did not contribute to appellant's conviction or punishment, we reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.

Background

Lavondra Jennings was almost nine months pregnant with appellant's child when she discovered appellant was cheating on her. An argument ensued while Jennings and appellant were in the car, and appellant cursed at Jennings and punched her in the face. Once the pair arrived home, Jennings took refuge in the bathroom and called 911. Appellant pushed his way in, and punched Jennings all over, including her stomach. After waiving indictment, appellant was tried by information before a jury for the offense of family violence assault, enhanced by a prior conviction for assault of a family member. Appellant did not testify during the guilt-innocence or the punishment phase of trial. The jury found appellant guilty and assessed punishment at two years' imprisonment.

Discussion

Comment on Failure to Testify

In his first issue, appellant complains the State engaged in improper jury argument by commenting on his failure to testify. During the guilt-innocence phase of trial, the State argued:

And he doesn't give two hoots about the mother of his baby or his baby because he looks her in the eye and punches her in her 38-week-old stomach without remorse, just like he is today.

Appellant objected to the argument as a comment on his failure to testify, and the trial court overruled the objection. Appellant now asserts the trial court erred in overruling the objection. We agree. The permissible areas of jury argument are well-established. Proper subjects of jury argument include: summation of the evidence, reasonable deductions from the evidence, an answer to argument by opposing counsel, or a plea for law enforcement. Hughes v. State, 878 S.W.2d 142, 157-58 (Tex. Crim. App. 1992); Norton v. State, 851 S.W.2d 341, 345 (Tex. App.-Dallas 1993, pet. ref'd). A comment on an accused's failure to testify violates the accused's state and federal constitutional privileges against self-incrimination. Moore v. State, 849 S.W.2d 350, 351 (Tex. Crim. App. 1993); Smith v. State, 65 S.W.3d 332, 339 (Tex. App.-Waco 2001, no pet.). In addition, the code of criminal procedure provides that a defendant's failure to testify on his own behalf may not be held against him and that counsel may not allude to the defendant's failure to testify. Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005). To determine whether a comment violates a defendant's right against self-incrimination or article 38.08, we must decide whether the language used was manifestly intended or was of such a character that the jury naturally and necessarily would have considered it to be a comment on the defendant's failure to testify. See Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001); Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999). The offending language must be viewed from the jury's standpoint, and the implication that the comment referred to the accused's failure to testify must be clear. Bustamante, 48 S.W.3d at 765; Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). A mere indirect or implied allusion to the defendant's failure to testify does not violate the accused's right to remain silent. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004); Patrick v. State, 906 S.W.2d 481, 490-91 (Tex. Crim. App. 1995). A statement referencing evidence that can come only from the defendant is, however, a direct comment on the defendant's failure to testify. See Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996); Madden v. State, 799 S.W.2d 683, 700 (Tex. Crim. App. 1990). A comment concerning a defendant's lack of remorse may be a comment on the defendant's failure to testify. See Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). Language that may be construed as a reference to a failure to provide evidence other than from the defendant's testimony does not constitute a comment on the failure to testify. Id. Conversely,"[w]hen no testimony exists concerning the defendant's lack of remorse, a comment on his lack of remorse would naturally and necessarily be one on the defendant's failure to testify because only he can testify as to his own remorse." See Cacy v. State, 901 S.W.2d 691, 704 (Tex. App.-El Paso 1995, pet. ref'd); see also Thomas v. State, 638 S.W.2d 481, 484 (Tex. Crim. App. 1982). Here, the prosecutor's comment cannot be construed as a reference to a failure to provide evidence from a source other than appellant, and there was no other testimony concerning appellant's lack of remorse. The prosecutor's comment called the jury's attention to the absence of evidence only appellant could supply. Therefore, we conclude the prosecutor's comment was an improper comment on appellant's failure to testify, and the trial court erred in overruling the objection. See Sauceda v. State, 859 S.W.2d 469, 475 (Tex. App.-Dallas 1993, pet. ref'd) (concluding argument concerning lack of remorse called jury's attention to absence of testimony only the defendant could supply).We strongly urge the State to refrain from making such improper comments. Having concluded the trial court erred, we must now determine whether the error caused appellant harm. See Lair v. State, 265 S.W.3d 580, 590 (Tex. App.-Houston [1st Dist.] 2008, pet. ref'd).

Harm

Because the error offends appellant's privilege against self-incrimination under the U.S. and Texas constitutions, it is of constitutional magnitude. See Brown v. State, 92 S.W.3d 655, 665 (Tex. App.-Dallas), aff'd, 122 S.W.3d 794 (Tex. Crim. App. 2003). And because the error is one in the trial process itself, a Rule 44.2(a) analysis is required. Thompson v. State, 89 S.W.3d 843, 851-52 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). Under this standard, we must reverse unless we can conclude beyond a reasonable doubt that the error did not contribute to the defendant's conviction or punishment. See Tex. R. App. P. 44.2(a). In conducting our analysis, we apply the standard of review for constitutional errors set forth in Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989). When applying the harmless error rules, a reviewing court should not focus on the propriety of the outcome at trial. Id. "Instead, an appellate court should be concerned with the integrity of the process leading to the conviction." Id. The court should examine (1) the source of the error, (2) the nature of the error, (3) whether or to what extent it was emphasized by the State, (4) its probable collateral implications, (5) the weight a juror would probably place upon the error, and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. See id. In summary, the reviewing court should ask "whether the error at issue might possibly have prejudiced the jurors' decision-making; it should ask not whether the jury reached the correct result, but rather whether the jurors were able properly to apply law to facts in order to reach a verdict." Id. Turning to the first factor in the Harris analysis, we note that the State was the source of the error here. As noted above, during closing arguments, the prosecutor improperly commented on appellant's failure to testify. Relying on Caldwell v. State, 818 S.W.2d 790, 800 (Tex. Crim. App. 1991), overruled on other gr., Castillo v. State, 913 S.W.2d 529, 530 (Tex. Crim. App. 1995) and Vera v. State, No. 01-98-00436-CR, 1999 Tex. App. WL 250851 (Tex. App.-Houston [1st Dist.] April 29, 1999, no pet.) (not designated for publication), the State argues appellant's actions demonstrate his lack of conscience and remorse. In essence, the State seeks to have us infer a lack of remorse from the commission of the crime itself. According to the State, because appellant's actions evidence a lack of remorse, the jury could have interpreted the prosecutor's comment as a reference to this evidence. The cases upon which the State relies, however, are distinguishable from the facts in this case. In Caldwell, there was testimony from numerous witnesses concerning the defendant's lack of remorse and his actions after the crime, and the court concluded the prosecutor's ambiguous statement could reasonably be construed to allude to this testimony. Caldwell, 818 S.W.2d at 800. Similarly, in Vera, there was testimony from other witnesses that the defendant had bragged about the crime and did not care. Vera, 1999 Tex. App. WL 250851 at * 5-6. There is no such evidence in the instant case. Instead, the only evidence is that of the crime itself. Although appellant's actions are reprehensible, it does not necessarily follow that the commission of the crime itself demonstrates a lack of remorse. Only appellant could have offered testimony concerning contrition. See Swallow, 829 S.W.2d at 225. Therefore, we reject the State's characterization of the prosecutor's argument as a proper comment on the evidence. Next we consider the nature of the error. The prosecutor's comment was a direct comment on appellant's failure to testify, and violates mandatory constitutional and statutory protections. See U. S. Const. amend. IV; Tex. Const. art 1 § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005). There is nothing in the record to indicate intentional misconduct or ill will on the part of the State. But in consideration of the third factor, whether or to what extent the error was emphasized by the State, we note that during the punishment argument, the prosecutor underscored the error when he asserted that appellant "doesn't care" at least four times. Thus, the absence of intentional misconduct is offset by the fact that the error was repeated and emphasized by the State. Under the fourth and fifth factors of the Harris test, we consider the probable implications of the error and the weight a juror would probably place upon the error. See Harris, 790 S.W.2d at 587. The jury charge correctly explained the law respecting a defendant's election not to testify, and the jury is presumed to have followed the court's instruction. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). However, the trial court overruled appellant's objection, and there was no attempt to cure the prejudicial effect of the prosecutor's comments. Having received the trial court's tacit endorsement of the comment, the State reminded the jury of the alleged lack of remorse four additional times during the punishment argument. As a result, it is possible that the jury afforded the prosecutor's comment some weight. Finally, we consider whether declaring the error harmless would encourage the State to repeat it with impunity. See id. Despite the absence of evidence to suggest the State intentionally advanced an improper argument, we are mindful of the impact our decision may have on future arguments and are loathe to open the door to similar comments in other cases. The privilege against self-incrimination must remain inviolate. After carefully reviewing the record and performing the harm analysis required under rule 44.2(a), we cannot conclude beyond a reasonable doubt that the trial court's error did not contribute to appellant's conviction or punishment. Appellant's first issue is sustained. In light of our disposition of this issue, we need not reach appellant's remaining issue.

Conclusion

We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.