Jonathan Jacobson v. State ( 2011 )

NO. 07-10-00220-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 9, 2011
JONATHAN A. JACOBSON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-418,173; HONORABLE JIM BOB DARNELL, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Appellant, Jonathan A. Jacobson, appeals his conviction, by jury, for aggravated
sexual assault of a child1 and the resulting punishment of forty-five years’ imprisonment.
On appeal, he contends the trial court erred by overruling his objection to the State’s
jury argument striking at him over the shoulders of counsel. We will affirm.
1
See TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West Supp. 2010).
Factual and Procedural History
Appellant does not challenge the sufficiency of the evidence to support the
conviction. In fact, he concedes that the evidence was sufficient. In light of his sole
issue on appeal, we address only those facts necessary to the disposition of the appeal.
Appellant was a family friend of complainant, B.J.P. The relationship between
twelve-year-old B.J.P. and twenty-year-old appellant began as one resembling siblings
but transformed into a possessive, sexual relationship. After a number of outbursts by
appellant in response to any effort to keep B.J.P. away from him and after discovering
love letters between appellant and B.J.P., B.J.P.’s mother reported her suspicions to the
Lubbock County Sheriff’s Department. The department began its investigation.
Initially, B.J.P. was reluctant to discuss her relationship with appellant. Early in
her interview with Detective Richard Mayer, she denied the existence of a sexual
relationship. Based on his investigation up to that point, however, Detective Mayer
sensed that B.J.P. was not being truthful with him and, so, he persisted in asking her
questions while reassuring her that, if she and appellant had had a sexual relationship,
she would not be in trouble. B.J.P. admitted that she and appellant did have a sexual
relationship.
During cross-examination, Mayer testified that, at the beginning of his
investigation, he did not know whether appellant was guilty or innocent. Mayer
explained that, even after B.J.P. admitted that she and appellant had engaged in sexual
intercourse, he continued his investigation into the matter:
2
I still knew that even with her saying yes [that sexual intercourse did
occur] that I would need more to prove the case, which would be the
CARE exam. So I wasn’t like, ‘Oh, I got this one in my win pile,’ you know
. . . I still have to go through the steps of investigation to be sure that I’m
not just falsely accusing somebody of something.
During closing argument to the jury, defense counsel seized on the “win pile”
phrase and focused on Detective Mayer’s investigatory approach as he attempted to
paraphrase Mayer’s testimony:
Some of the things that Detective Mayer told you that came out, that just
jumped up. ‘We have to ask ourselves, now, what is it going to take as far
as details, as far as testimony, to put this case in the win pile?’ You
remember that’s what the detective said, “in the win pile.” And he thought
about that. From the interview with Mike Privette right off the bat, the first
interview.
...
The State then asked the detective if he was uncomfortable, and he felt
essentially as though he had been attacked, because he sat in that chair
and faced hard questions . . . . We start with him talking about how he put
it in the win pile. Not about an investigation. Not about following where
the evidence leads. You heard him say, ‘We know what happened. We
know who did it.’
Defense counsel’s jury argument continued in a rather scathing tone, characterizing the
investigation as a “witch hunt.”
The State responded in its argument to the jury: “Somebody in this courtroom
has an end result that they will twist and turn and fill in the holes to make it work–”
Appellant objected to the State’s argument as striking at appellant over shoulders of
counsel, and the trial court overruled appellant’s objection. In that same vein, the State
continued: “The Defense in this case had their end result, and they will twist the words
of Detective Mayer. And if you don’t believe me, how many times did he stand up here
and use the word ‘win pile’?”
3
After the jury found appellant guilty of aggravated sexual assault of a child as
alleged and during the trial on punishment, appellant testified and admitted to having
had an ongoing sexual relationship with B.J.P. After considering appellant’s testimony
and the other punishment evidence, the jury assessed a forty-five year sentence.
Appellant timely appealed and now contends that the State struck at defendant
over the shoulders of counsel. He maintains that the trial court erred by overruling his
objection to the State’s argument and that, in light of the nature of State’s argument and
the absence of any curative instruction to the jury, such error was harmful.
Analysis
Before we can reach the merits of appellant’s point of error, we must first
examine the impact of appellant’s confession to the offense during the trial on
punishment. The Texas Court of Criminal Appeals outlined the effect that a defendant’s
confession would have on subsequent points of error in DeGarmo v. State, 691 S.W.2d.
657, 660–61 (Tex.Crim.App. 1985). The general principle of DeGarmo, was that a
defendant may not complain on appeal of an error occurring at the guilt phase of the
trial when the defendant admits his guilt at the punishment phase of trial. Id. at 661;
Houston v. State, 208 S.W.3d 585, 589–90 (Tex.App.—Austin 2006, no pet.). Ten
years after DeGarmo, the Texas Court of Criminal Appeals reaffirmed the DeGarmo
doctrine and explained the basis for such a rule:
When the defendant testifies and judicially confesses to the charged
offense, the purpose of the trial process has been served–the truth has
been determined and the purpose of the guilt/innocence phase of the trial
has been satisfied. No reversible error should occur where the defendant
has satisfied the necessity of the trial process.
4
McGlothlin v. State, 896 S.W.2d 183, 187 (Tex.Crim.App. 1995).
The Texas Court of Criminal Appeals refined and narrowed the scope of the
DeGarmo doctrine in Leday v. State, 983 S.W.2d 713, 715 (Tex.Crim.App. 1998) (en
banc). The Leday court acknowledged that “we as a people have deliberately chosen to
adopt laws which interfere with the truth-seeking function of the criminal trial.” Id. at
724. Therefore, the court explained, the need to protect some fundamental rights
outweighs the truth-seeking function of a criminal trial. Id. at 724–25. After Leday,
when issues are raised on appeal by an appellant who admitted his guilt during the
punishment phase of his trial, a reviewing court must “determine if appellant asserts
fundamental rights or guaranties [which he cannot be estopped from asserting], or
whether the truth-finding function prevails to estop appellant from raising them.”2
Gutierrez v. State, 8 S.W.3d 739, 745 (Tex.App.—Austin 1999, no pet.). In other words,
when an alleged error during the guilt/innocence phase of trial does not implicate a
defendant’s fundamental rights, a defendant who admits guilt at the punishment phase
of trial is estopped from raising that error on appeal. See Wenger v. State, 292 S.W.3d
2
The Leday court also set out a non-exhaustive list of errors that a defendant
who confessed guilt is not estopped from raising on appeal: (1) errors violating the Due
Process Clauses of the Fifth and Fourteenth Amendments regarding the right to have
guilt proved beyond a reasonable doubt; (2) errors violating the right in the Double
Jeopardy Clause of the Fifth Amendment to not be subjected to a second trial even
when there is clear evidence of guilt; (3) errors violating the right to refuse to testify
found in the Self-Incrimination Clause of the Fifth Amendment; (4) errors violating the
right found in the Due Process Clause of the Fourteenth Amendment to exclude
coerced confessions; (5) errors violating the Fourth Amendment prohibition against
unlawful search and seizure and illegally obtained evidence; (6) errors violating Article 5
of the Rules of Evidence regarding exclusion of privileged evidence; (7) errors violating
the right to have excluded custodial interrogation statements not conforming to the
requirements of the Code of Criminal Procedure art. 38.22; (8) errors violating the right
to have jurors prevented from asking witnesses questions. 983 S.W.2d at 725.
5
191, 202 n.8 (Tex.App.—Fort Worth 2009, no pet.) (admission of extraneous offense
evidence); Jarmon v. State, 263 S.W.3d 25, 30–31 (Tex.App.—Houston [1st Dist.] 2006,
pet. ref’d) (same); Houston, 208 S.W.3d at 590–91 (same); Kelley v. State, 22 S.W.3d
628, 631 (Tex.App.—Fort Worth 2000, pet. ref’d) (alleged jury charge error); Gutierrez,
8 S.W.3d at 745 (jury note-taking during trial).
During his testimony at the trial on punishment, appellant confessed to having
had sexual intercourse with B.J.P. Thus, he will be estopped from raising his point of
error on appeal unless we determine that the error of which he complains implicates a
fundamental right. So, we first evaluate the nature of the issue appellant presents to
this Court. That is, we must determine whether the issue appellant raises is one which
implicates fundamental rights or guaranties and, thus, is one that, under Leday, is of the
nature that would survive for our review beyond appellant’s confession.
Our research yields no case that directly addresses the DeGarmo/Leday
doctrine’s application to assertions that the State struck at defendant over the shoulders
of counsel. We, therefore, look to the treatment of this type of error in other contexts.
See Jarmon, 263 S.W.3d at 30 (for a thorough discussion of the considerations that go
into evaluation whether the error implicates a fundamental right under Leday).
It is well established that an appellant who fails to raise the complaint that the
State struck at him over the shoulders of counsel forfeits his right to advance his
complaint on appeal. See Threadgill v. State, 146 S.W.3d 654, 667 (Tex.Crim.App.
2004); see also Huff v. State, No. 07-10-00174-CR, 2010 Tex. App. LEXIS 9424, *10–
11 (Tex.App.—Amarillo Nov. 29, 2010, no pet.) (mem. op., not designated for
6
publication); Stephenson v. State, 255 S.W.3d 652, 659 (Tex.App.—Fort Worth 2008,
pet. ref’d). From these cases, we can conclude that the error of which appellant
complains is not considered fundamental error which could be raised for the first time on
appeal. Further, the Texas Court of Criminal Appeals has consistently and clearly
concluded that error associated with striking over the shoulders of counsel is subject to
harm analysis as nonconstitutional error. See Brown v. State, 270 S.W.3d 564, 572–73,
n.2 (Tex.Crim.App. 2008); Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000);
Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998).
In anticipation of the State’s argument, appellant cites the Court to Leday and
likens the issue in the instant case to an improper prosecutorial comment on a
defendant’s failure to testify. Appellant does not advance an argument that the State’s
argument in the instant case constitutes an improper comment on appellant’s failure to
testify in the guilt/innocence phase of trial. Rather, he suggests that the argument that
strikes at a defendant over counsel’s shoulders is similar to or should receive similar
treatment as a prosecutorial comment on the failure to testify. We decline to adopt his
analogy. Unlike the issue at bar, a defendant’s privilege against self-incrimination is a
right that is directly and firmly rooted in constitutional law. U.S. CONST. amend. V; Griffin
v. California, 380 U.S. 609, 614, 85 S.Ct.1229, 14 L. Ed. 2d 106 (1965); Cruz v. State,
225 S.W.3d 546, 548 (Tex.Crim.App. 2007). Leday recognized this and includes such a
right in its non-exhaustive list of exceptions to the estoppel-by-confession principle. 983
S.W.2d at 725.
7
Drawing upon cases that characterize the type of error which appellant urges
here as forfeitable by inaction and nonconstitutional in nature, we conclude that such
error does not implicate fundamental rights and, thus, is not in the category of error that
would survive for our review under Leday after appellant confessed to having committed
the offense. Under Leday, appellant is estopped from complaining of improper jury
argument after he admitted during the punishment trial that he committed the offense,
and our review of this issue on these facts is precluded. Accordingly, we overrule
appellant’s sole issue on appeal.
Conclusion
Having overruled appellant’s sole point of error, we affirm the judgment of the
trial court.3
Mackey K. Hancock
Justice
Publish.
3
In addition to joining the majority’s opinion, C.J. Quinn would also overrule the
issue because the utterance, when viewed in context, would not be one that reasonable
jurors would interpret as commenting upon appellant’s right to remain silent.
8