Jonathan Griffin v. State ( 2004 )

NO. 07-03-0060-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 29, 2004
______________________________
JONATHAN RAY GRIFFIN, SR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 252ND CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;
NO. 81,858; HON. LAYNE WALKER, PRESIDING
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
Jonathan Ray Griffin, Sr. (appellant) appeals his conviction for manslaughter. Via
three issues, he contends that the trial court erred 1) in failing to grant him a mistrial after
the prosecutor impermissibly commented on his failure to testify and 2) in permitting the
State to utter improper argument during its closing. We affirm.
Background
Appellant had two children with LaDanna McQueen (McQueen). One was a girl,
L.R.G., who was born on February 21, 2000. On May 27, 2000, appellant was watching
his two children while McQueen was at work. McQueen arrived home the next morning
between 2:15 and 2:45 a.m. She checked with appellant about the children, and he
advised her that everyone was okay. McQueen went to sleep on a loveseat next to the
couch where her daughter was laying. The next morning appellant awoke McQueen by
advising her “that something was wrong with the baby.” McQueen held L.R.G., felt “how
cold she was,” and then called 911. An EMS crew arrived and determined that the baby
had been dead for some time.
An autopsy revealed that the infant died from trauma to her head that caused
lacerations to the brain. Upon questioning by the police, appellant admitted to hitting the
child three times on the back of her head with his fist. These acts were determined to have
caused the trauma.
Evidence also was presented at trial illustrating that appellant was “low borderline
to high mild mental retardation.” Thereafter, a jury convicted him of manslaughter and
levied a sentence of 20 years in prison.
Issue One - Comment on Right to Remain Silent
Appellant contends that the trial court erred in denying his motion for mistrial after
the prosecutor impermissibly commented on his right to remain silent. The comment in
question involved the prosecutor asking the first witness to testify at trial about whether
appellant ever expressed whether “he was sorry . . . .” Appellant objected to the question
on the ground mentioned above, and the trial court sustained the objection. However, it
denied his request for mistrial. We overrule the issue.
It is clear that when the complained of comment was uttered, the State had not
closed its case. Nor had appellant rested. Similarly clear is that the utterance did not
contain words expressly referring to appellant’s silence during trial or invocation, if any, of
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any right against self-incrimination. Rather, the context of the statement involved two
letters written by appellant and sent to McQueen. According to the latter, she construed
them as his asking for forgiveness. In response to that, the prosecutor asked whether
appellant talked to her or told “you he was sorry about . . . .” At that point, appellant
objected.
Given the context and timing of the utterance, we do not construe it to be one that
“was manifestly intended or was of such character that the jury would naturally and
necessarily take it to be a comment on the accused's failure to testify." Caldwell v. State,
818 S.W.2d 790, 800 (Tex. Crim. App. 1991) (quoting Dickinson v. State, 685 S.W.2d 320,
323 (Tex. Crim. App. 1984)) (describing the quoted passage to be the relevant test); see
Bustamante v. State, 48 S.W.3d 761, 767 (Tex. Crim. App. 2001) (stating that the timing
of the comment is a factor to consider in assessing whether it was an improper); Swallow
v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992) (requiring the comment to be more
than "an implied or indirect allusion" to the failure of the accused to testify). And, because
it fell outside the scope of utterances as defined in and prohibited by Caldwell, it was not
a comment on the failure to testify even though the trial court may have believed otherwise.
Thus, no error occurred when the trial court refused to grant a mistrial.
Issues Two and Three
In his final two issues, appellant contends that the trial court erred “by allowing
improper jury argument.” The improper argument allegedly consisted of the prosecutor
uttering comments “contrary to the court’s charge” and alluding to matters outside the
record. We overrule the issues.
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In pressing his contention, appellant provides us, in his brief, lengthy excerpts of the
State’s argument. However, he does not expressly refer to the particular utterances he
urges, on appeal, to be objectionable. This is of import for some of the comments to which
he objected (and which were included in the excerpts) were not preserved due to his failure
to request an instruction to disregard and move for a mistrial once the initial objection was
sustained. See Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App.), cert. denied, 516
U.S. 977, 116 S. Ct. 480, 133 L. Ed. 2d 408 (1995) (stating that to preserve an objection for
prosecutorial misconduct one must not only object but also request an instruction to
disregard and move for a mistrial). Moreover, none of the objections contained in the
excerpts specifically include an objection founded upon the contention that the prosecutor
was arguing “matters outside the record.” Nor does appellant explain how or why any
matter purportedly outside the record was outside the record and, therefore, improper
comment. So too did he fail to suggest, much less explain, why the trial court’s instruction
to disregard the comments did not cure the error. See Wilson v. State, 7 S.W.3d 136, 148
(Tex. Crim. App. 1999) (holding that an instruction to disregard normally cures the error
unless it was so egregious that an instruction would have little effect).
Similar deficiencies are noted with regard to the complaint about arguing “the law
in a manner contrary to the courts [sic] charge.” Again, nowhere do any of the excerpts
reference an objection specifically incorporating the objection that the argument
contradicted the trial court’s jury charge. Nor did appellant provide us with specific
explanation, and supporting authority, illustrating that anything said by the State was
contrary to the charge and, therefore, improper. And, to the extent that it could be said that
appellant refers to a comment about the jury being unable to consider his mental
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retardation while assessing guilt, the trial court sustained the objection. However, appellant
did not request an instruction or move for a mistrial.
As to the objection about what appellant’s “job” at trial consisted of, he again omits
explanation as to why the instruction to disregard did not cure the purported error. Nor
does he provide us with authority or analysis illustrating that the comment was actually
improper.
Given that appellant did not specify the particular comments encompassed within
his issues on appeal, that various of the objections uttered below were not preserved for
review, that various of the objections urged now were unmentioned below, that appellant
fails to provide us with any explanation as to why any of the excerpts to which he alludes
was improper, that appellant fails to argue that (much less explain why) the purported
errors were not cured by the court’s instruction to disregard, and that appellant fails to
provide us with legal authority supporting his contention that what the State argued
constituted either impermissible comment outside the record or comment contradicting the
charge, we conclude that issues two and three were waived. See Coffey v. State, 796
S.W.2d 175, 179 (Tex. Crim. App. 1990) (holding that an issue on appeal must comport
with the objection asserted at trial); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.
App.–Amarillo 1998, no pet.) (requiring the appellant to provide the appellate court with
both substantive analysis and legal authority supporting its issue or the complaint is
waived).
Having overruled each issue, we affirm the judgment of the trial court.
Brian Quinn
Do not publish. Justice
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