Tonya Ann Rodriguez v. State ( 2015 )


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  •                                                                                 ACCEPTED
    06-14-00190-CR
    SIXTH COURT OF APPEALS
    TEXARKANA, TEXAS
    7/1/2015 3:04:21 PM
    DEBBIE AUTREY
    CLERK
    IN THE COURT OF APPEALS FOR THE
    SIXTH DISTRICT OF TEXAS AT TEXARKANA
    FILED IN
    6th COURT OF APPEALS
    TEXARKANA, TEXAS
    TONYA ANN RODRIGUEZ                                 7/1/2015 3:04:21 PM
    APPELLANT                  §                         DEBBIE AUTREY
    §                             Clerk
    v.                        §      Nos.    06-14-00190-CR
    §
    THE STATE OF TEXAS,           §
    APPELLEE                   §
    STATE'S BRIEF
    ON APPEAL FROM THE 354th DISTRICT COURT
    HUNT COUNTY, TEXAS
    TRIAL COURT CAUSE NUMBER 29,230
    THE HONORABLE RICHARD A. BEACOM, JR., JUDGE PRESIDING
    NOBLE D. WALKER, JR.
    District Attorney
    Hunt County, Texas
    STEVEN LILLEY
    Assistant District Attorney
    P.O. Box 441
    4th Floor Hunt County Courthouse
    Greenville, TX      75403
    (903) 408-4180
    FAX (903) 408-4296
    State Bar No. 24046293
    TABLE OF CONTENTS
    TABLE OF CONTENTS ........................................................................................ 2
    INDEX OF AUTHORITIES .................................................................................... 3
    SUMMARY OF THE STATE'S ARGUMENT ........................................................ 4
    ARUGUMENT ........................................................................................................S
    PRAYER ..............................................................................................................13
    CERTIFICATE OF SERVICE ..............................................................................14
    CERTIFICATE OF COMPLIANCE. .....................................................................15
    2
    INDEX OF AUTHORITIES
    CASES
    Asay v. State, 
    456 S.W.2d 903
    (Tex. Grim. App. 1970) ......................................... 9
    Cockrell v. State, 
    933 S.W.2d 73
    (Tex. Grim. App. 1996) .................................. 6-7
    Felder v. State, 
    848 S.W.2d 85
    (Tex. Grim. App. 1992) ........................................ 9
    Johnson v. State, 
    982 S.W.2d 403
    (Tex. Grim. App. 1998) ................................. 10
    Martinez v. State, 
    17 S.W.3d 677
    (Tex. Grim. App. 2000) ............................. 11, 
    13 Sadler v
    . State, 
    977 S.W.2d 140
    (Tex. Grim. App. 1998) .................................... 10
    Threadgill v. State, 164 SW.3d 654 (Tex. Grim. App. 2004) .................................. 7
    Parks v. State, 
    843 S.W.2d 693
            (Tex. App. Corpus Christi, 1992 pet. ref'd) .................................................. 9
    Vanderhorst v. State, 
    821 S.W.2d 180
            (Tex. App. Eastland, 1991 pet. ref'd.) ..................................................... 9-1 0
    STATUTES
    Texas R. App. Pro. 33.1 (a)(1 )(2)(A) .......................................................................7
    Texas R. App. Pro. 44.2(b ) ............................................................................ 11, 13
    3
    IN THE COURT OF APPEALS FOR THE
    SIXTH DISTRICT OF TEXAS AT TEXARKANA
    TONYA ANN RODRIGUEZ
    APPELLANT                             §
    §
    v.                                  §      No. 06-14-00190-CR
    §
    THE STATE OF TEXAS,                       §
    APPELLEE                              §
    STATE'S BRIEF
    TO THE HONORABLE COURT OF APPEALS:
    NOW COMES the STATE OF TEXAS, Appellee, in this appeal from Cause No.
    29,230 in the 354th Judicial District Court in and for Hunt County, Texas,
    Honorable Judge Richard A. Beacom, Jr., Presiding, now before the Sixth District
    Court of Appeals, and respectfully submits this its brief to the Sixth District Court
    of Appeals in support of the judgment of conviction and sentence in the court
    below.
    4
    SUMMARY OF ARGUMENT
    In her brief, Appellant complains that the prosecutor representing the state
    made an improper jury argument that caused her harm in her prosecution for
    reckless injury to a child causing serious bodily injury. Appellant's argument fails
    on three major grounds. First, the alleged error was not properly preserved by
    trial counsel. Secondly, even if the issue was preserved for appeal, the jury
    argument was not error. Finally, if this Court finds the argument to be error,
    Appellant still is unable to show harm.
    Though trial counsel did object to the perceived improper jury argument,
    his objection was at least partially sustained and counsel did not pursue his
    objection to an adverse ruling. Under the controlling precedent of Cockrell v.
    State, the issue has therefore not been preserved for appeal.
    Even if the issue was preserved, the argument complained of can be
    characterized as the prosecutor making a plea to law enforcement that the jury
    not consider the full range of punishment and instead consider only a higher
    range of punishment based upon the facts of the case. Appellant's reliance on
    jury selection case lawis misplaced. The jury argument here tracks what a
    properly qualified juror is allowed to do in every case, look at the facts of the case
    and determine the appropriate punishment.
    Even if the jury argument is judged to be error, Appellant cannot show
    harm under the Martinez v. State factors which weigh; the severity of the
    misconduct, the curative measures taken by the court and the relative certainty of
    the same result in punishment absent the improper jury argument. Under these
    factors (assuming the jury argument was improper) only the first factor weighs in
    Appellant's favor. Therefore, Appellant cannot show that the improper jury
    argument was harmful and the error must be ignored by this Court.
    5
    ARGUMENT
    In her sole point of error Appellant complains that the attorney representing
    the State committed error during jury argument. Appellant alleges that the
    State's attorney engaged in improper jury argument by urging jurors to "disregard
    the full range of punishment and only 'honestly consider' a sentence over eleven
    years." Appellant's brief p. 16, quoting Reporter's Record (RR) Vol. 9 p. 20-21.
    Appellant spends the majority of her brief outlining the harm analysis involved in
    jury argument error. The State brings forth three points in its brief to show that
    Appellant is not entitled to relief. First, the error complained of was not
    preserved. Secondly, if the potential error was preserved, it is indeed not error.
    Finally, if the jury argument was error, it was not harmful.
    I.
    Did the defense attorney preserve error?
    The First issue this Court must address is whether the defense attorney
    properly preserved the alleged jury argument error. To preserve error in jury
    argument, Appellant must show trial counsel objected to the complained of error
    and persisted in his objection to an adverse ruling. Cockrell v. State, 
    933 S.W.2d 73
    , 89 (Tex. Crim. App. 1996). This rule applies regardless of whether or not the
    complained of argument could have been remedied by a curative instruction.
    6
    Threadgill v. State, 164 SW.3d 654, 670 (Tex. Grim. App. 2004) citing Cockrell at
    89.
    The threshold question must be whether the defense counsel ever
    received an adverse ruling from the trial court. A ruling by a trial court can be
    either express or implicit. Texas R. App. Pro. 33.1 (a)(1 )(2)(A). In this case, the
    defense attorney objected to the State's jury argument involving the punishment
    range the State desired the jury to consider. The defense made a specific
    objection to which the court responded with: "Well let's- rather than instruction
    of where to start [deliberations], I think you can argue where the State would like
    to see the punishment range go from." Reporter's Record Vol. 11 p. 21.
    It appears by its ruling that the trial court understood the defense counsel's
    objection and at least partially sustained his objection. The State certainly took
    the objection as sustained as he changed his argument to conform to the court's
    ruling. The defense counsel however, made no further objection, nor did he has
    for a jury instruction to disregard or a make a motion for a mistrial. Because he
    failed to do so, defense counsel never received the adverse ruling required under
    Cockrell to preserve the jury argument error and this issue has not been
    preserved for appeal.
    7
    II.
    Was the complained of argument error?
    If the issue was properly preserved for appeal, the next major issue is
    whether the complained of argument was error at all. The jury argument in this
    case came at the conclusion of a trial involving a woman who pled guilty to
    recklessly causing a broken femur bone in a three month old girl. The alleged
    improper argument by the prosecutor came as he finished explaining the different
    punishment verdict forms to the jury. RR Vol. 11 p. 19-20. The prosecutor urged
    the jury to begin their deliberations at 11 years in the Texas Department of
    Correction. ld. at 20. Beginning deliberations at 11 years, the prosecutor
    argued, sent a message that the facts of this case did not warrant probation (as
    defendant would have only been eligible for probation on a sentence of ten years
    or less) and was thus never considered by the jury during its deliberations.
    Before the prosecutor could fully develop this argument, defense counsel
    objected stating, "the law says the jury can consider the full range and he's [the
    prosecutor] giving instructions to start at a certain place and that's improper
    argument." ld. at 20. As stated above, the trial ruled informed the State how to
    more properly make such an argument. The prosecutor, therefore, restated his
    point thusly; "So where State believes that the range that should be honestly
    considered, based on the facts that you heard, is 11 years and up because
    that sends a message that our community never even considered probation in
    this case." ld. at 21 (Emphasis added).
    8
    Though Appellant zeroes in on the alleged narrowing of the punishment
    range by the State, the prosecutor was in actuality arguing that the jury should
    not consider Appellant worthy of probation based upon the facts presented in the
    case. The issue therefore is whether by urging a jury to only consider a certain
    portion of the punishment range in its deliberations, the State had committed
    improper jury argument. The answer is that such an argument is not error.
    A State's jury argument must fall into one of four general areas: a
    summation of the evidence, reasonable deductions from the evidence, answering
    the arguments of opposing counsel and pleas for law enforcement. Felder v.
    State, 
    848 S.W.2d 85
    , 94-95 (Tex. Grim. App. 1992). A request that the jury give
    a defendant a lengthy prison term is considered a plea to law enforcement and a
    discussion of the evidence. Asay v. State, 
    456 S.W.2d 903
    , 905 (Tex. Grim. App.
    1970); Parks v. State, 
    843 S.W.2d 693
    , 696 (Tex. App. Corpus Christi, 1992 pet.
    ref' d).
    With facts very similar to those at hand, the case of Vanderhorst v. State is
    particularly instructive. In Vanderhorst, the prosecutor stated that though a
    lower punishment range was available for the jury to consider, the jury should
    instead begin their deliberations "in the upper range" based upon the prior
    convictions of the defendant and the enhanced punishment range such
    convictions allowed for. The defense objected claiming that such an argument
    urged the jury not to consider the full range of punishment. The trial court
    overruled the objection and the appellate court found the argument to be a
    9
    proper plea to law enforcement. Vanderhorst v. State, 
    821 S.W.2d 180
    , 186
    (Tex. App. Eastland, 1991 pet. ref'd.)
    The cases relied upon by Appellant to show error deal not with jury
    argument, but with the jury selection process. It is indeed true that a potential
    juror must be able consider the full range of punishment for a criminal offense in
    ordered to be qualified as a juror. Johnson v. State, 
    982 S.W.2d 403
    , 405-06
    (Tex. Crim. App. 1998). This requirement however, is limited to consideration of
    the full range of punishment in a merely general sense. A juror is not disqualified
    if they are given a particular fact or set of facts and then asked under those facts
    whether they could consider the full range of punishment. Sadler v. State, 
    977 S.W.2d 140
    , 142-43 (Tex. Crim. App. 1998). In Sadler, the appellant claimed
    that a juror must not only be able to consider the full range of punishment for the
    crime in general, but also for the crime as Appellant committed it. This argument,
    the court said, was "without merit."   kL. at 143. The Court stated succinctly, "We
    hold that a prospective juror is not challengeable for cause because he or she
    will use the facts to determine punishment."   kL.
    If a juror need not be able to consider the full range of punishment based
    upon the actual facts of the case, then it cannot be error for the State to argue
    that based upon the facts of the case, the jury should not consider the full range
    of punishment. Therefore, the complained of jury argument made by the State
    was not error.
    10
    Ill.
    If the jury argument was error, was the error harmful?
    As Appellant has stated, improper jury argument is examined under Texas
    Rule of Appellate Procedure 44.2(b). Any error must be disregarded as harmless
    unless the error affects the Appellant's substantial rights. Whether an improper
    jury argument affects Appellant's substantial rights can be determined by looking
    at three key factors: the severity of the misconduct, the curative measures taken
    and the certainty of the punishment assessed in the case absent the misconduct.
    Martinez v. State, 
    17 S.W.3d 677
    , 692-93 (Tex. Grim. App. 2000).
    The first factor is the severity of the misconduct. In this case, as stated
    above, the State was attempting to make the argument that based upon the facts
    of the case, the jury should not consider any sentence below eleven years and
    therefore begin their deliberations there. If this was indeed error and instructed
    the jury to disregard its essential function in considering the full range of
    punishment (which as seen above, the State in no concedes) this prong would
    weigh in Appellant's favor.
    The second factor is the curative measure(s) taken by the court. In this
    case, the Court urged the prosecutor to restate his argument in a different way.
    The State did so and no further objection or request for the jury to disregard was
    made. Considering the fact that defense counsel made no further objections
    after the court's ruling to the State's subsequent argument, it can be reasonably
    assumed that the curative measures made by the court were helpful in allaying
    11
    any error made by the State. Therefore, this second prong weighs against
    Appellant.
    The final prong is the certainty of the punishment assessed absent the jury
    argument error. This is a difficult prong to examine as the facts of any individual
    case given to any assembled jury could result in a different outcome in regards to
    punishment. It is essentially impossible to know with "certainty" whether the jury
    in this case would have assessed a punishment of sixteen years without the
    complained of argument.
    However, a review of the facts shows that a rational jury could have seen
    the aggravating facts of this case and reached a similar conclusion without the
    improper argument. Appellant in this case took care of small children in her
    home as her source of income. Appellant pled guilty to the offense of reckless
    injury to a child by breaking the femur bone of a three month old child. Appellant
    admitted that she partook in methamphetamines on the weekends, only to
    receive children into her home to take care of again on Mondays. R.R. Vol. 10 p.
    65 and 221-22. Appellant did not immediately call for emergency help when it
    was apparent that she had hurt the child in this case. R. R. Vol 10 p. 57-58 and
    188-89. Appellant pled guilty to the crime and admitted that she committed the
    act in frustration to investigators. However, in front of the jury, Appellant
    changed her story and claimed that the "pop" she heard in the victim's leg
    occurred when Appellant was changing her diaper like normal. R.R. Vol. 10 pp.
    12
    219-20. The refusal to take responsibility for her actions very likely weighed
    heavily on the jury during deliberations.
    Considering the multitude of aggravating facts presented to the jury, it is
    reasonable to assume that the jury could have come to the same punishment
    conclusion absent the State's argument complained of here. This final prong,
    therefore, again weighs against Appellant.
    Due to the fact that Appellant cannot clearly show harm based upon the
    three factors outlined in Martinez, the error should be found harmless and
    ignored under Rule 44.2(b ).
    PRAYER
    Appellant's trial was without prejudicial or fundamental error. The State
    prays that Appellant's conviction and sentence be affirmed.
    Respectfully submitted,
    NOBLE D. WALKER, JR.
    District Attorney
    Hunt      unty, Te
    Assistant District Attorney
    P.O. Box 441
    4th Floor Hunt County Courthouse
    Greenville, TX 75403
    State Bar No. 24046293
    (903) 408-4180
    FAX (903) 408-4296
    13
    CERTIFICATE OF SERVICE
    A true copy of the State's brief has been delivered to Frank Long, attorney
    for Appellant, on July 1, 2015.
    Assistant District Attorney
    14
    CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT
    In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the
    undersigned attorney of record certifies that Appellee's Brief contains 13-point
    typeface of the body of the brief, 2,144 words, excluding those words identified
    as not being counted in appellate rule of procedure 9.4(i)(1 ), and was prepared
    on Microsoft Word 2007.
    Steven Lilley
    Attorney for the State
    15