Tyra Ann Whitney v. State , 2013 Tex. App. LEXIS 2025 ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00472-CR
Tyra Ann Whitney § From Criminal District Court No. 1
§ of Tarrant County (1217006D)
v. § February 28, 2013
§ Opinion by Justice Gabriel
The State of Texas § (p)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Lee Gabriel
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00472-CR
TYRA ANN WHITNEY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Introduction
Appellant Tyra Ann Whitney appeals her conviction for murder, contending
in three issues that the trial court erred by (1) denying co-counsel’s active
participation during trial, (2) issuing a no-duty-to-retreat instruction in the jury
charge, and (3) denying a mistrial after sustaining an objection to the State’s
closing argument. We affirm.
1
See Tex. R. App. P. 47.4.
2
Background Facts and Procedural History
Appellant killed her daughter Tashira’s boyfriend with a hammer. Tashira
and the deceased often quarreled, at times violently. During their last argument,
Tashira called Appellant, who then drove to Tashira’s apartment. A neighbor
saw Appellant climb out of her van and walk to the apartment holding a yellow
handled hammer.
The deceased was gathering his belongings in the bedroom when the
Appellant came through the unlocked apartment door. She and the deceased
started arguing and continued to do so after Tashira closed the bedroom door
between them. When the door reopened the deceased approached Appellant. It
is unclear from the record whether he intended to attack Appellant or to escape
past her out the front door. Before he could do either, Appellant threw a cup of
bleach-water into his face. He fell facedown to the floor, and Appellant struck
him in the back of the head with the hammer.
As Appellant walked back to her van, the neighbor who had seen her
arrive noticed that the hammer in her hand had blood on it. Appellant explained
as she left, “I told you I was gonna kill that n[. . . ]––if he ever laid a hand on my
daughter again.”
The deceased died from his injuries shortly thereafter, and the State
charged Appellant with murder.
Appearing before a magistrate, Appellant submitted a written election-of-
counsel form, with supporting affidavit of indigency attached, requesting a court-
3
appointed lawyer. The magistrate found Appellant indigent and appointed
attorney William Harris (“Counsel”) for her defense.
Appellant’s daughter Tashira had given two statements to the police: one
oral, recorded in a detective’s vehicle, and the other written at the police station.
But she did not talk with anyone from the district attorney’s office before trial.
Four or five times, however, Tashira met with the defense, to discuss her
testimony––the last time in the week before trial.
A visiting judge presided over Appellant’s trial. On the first day during jury
selection, she introduced Counsel and Wes Bearden to the venire as the
attorneys that represented Appellant. Counsel conducted Appellant’s portion of
voir dire, and after empanelling a jury, the trial court recessed until the morning.
The next day, outside the jury’s presence, the visiting judge reported that
the elected judge of the trial court had instructed her not to allow Bearden to
actively participate in the trial because he had not been appointed as Appellant’s
counsel or co-counsel. The trial court noted, however, that Bearden could
remain in the courtroom and “assist” Counsel “in any fashion” other than “actively
questioning witnesses and making objections and things of that nature.” Counsel
objected to this arrangement and Appellant expressed her desire to have
Bearden fully participate under Counsel’s supervision. The trial court overruled
the objection but granted a running objection on the issue.
The jury convicted Appellant of murder and, after the punishment phase,
assessed punishment at fifteen years’ confinement, finding that she had acted
4
under the immediate influence of sudden passion arising from an adequate
cause.2 The trial court sentenced Appellant accordingly.
Denial of Co-counsel
In her first issue, Appellant contends that the trial court denied her
constitutional right to choose co-counsel to assist her court-appointed counsel at
trial.3 Appellant cites Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58
(1932), for the proposition that the Sixth Amendment right to the assistance of
counsel “includes the right of the accused to counsel of [her] choice if counsel is
retained or volunteers pro bono.” But this right to choose counsel does not
extend to defendants who have counsel appointed for them by the court. United
States v. Gonzalez–Lopez, 548 U.S. 140, 151, 126 S. Ct. 2557, 2565 (2006);
United States v. Benitez-Casas, 439 F.App’x 307, 308 (5th Cir. 2011); see
Montejo v. Louisiana, 556 U.S. 778, 784, 129 S. Ct. 2079, 2084 (2009) (“An
2
Murder is a second-degree felony if, at the punishment phase, the
defendant proves by a preponderance of the evidence that she acted under the
influence of sudden passion arising from an adequate cause. Tex. Penal Code
Ann. § 19.02(d) (West 2011). The penal code defines “sudden passion” as
“passion directly caused by and arising out of provocation by the individual killed”
arising “at the time of the offense” and “not solely the result of former
provocation.” Id. § 19.02(a)(2). “‘Adequate cause’ means cause that would
commonly produce a degree of anger, rage, resentment, or terror in a person of
ordinary temper, sufficient to render the mind incapable of cool reflection.” Id. §
19.02(a)(1).
3
Because she does not argue that our state constitution or any statute
provides greater protection than the Sixth Amendment of the United States
Constitution, we treat Appellant’s first issue solely as a Sixth Amendment claim.
See Trammell v. State, 287 S.W.3d 336, 342 n.12 (Tex. App.––Fort Worth 2009,
no pet.).
5
indigent defendant has no right to choose his counsel[.]”) (citing Gonzalez–
Lopez, 548 U.S. at 151, 126 S. Ct. 2557).
The United States Supreme Court has not addressed the specific issue of
whether the Sixth Amendment guarantees any right for an indigent defendant to
choose co-counsel to assist counsel that has been appointed by the trial court.
But in Trammell, this court resolved the issue adversely to Appellant’s position.
287 S.W.3d at 343–44.
In Trammell, we noted that the Supreme Court has considered whether “a
trial court’s erroneous deprivation of a criminal defendant’s choice of counsel
entitles him to a reversal of his conviction.” Id. at 342 (citing Gonzalez–Lopez,
548 U.S. at 142, 126 S. Ct. at 2560).4 Analyzing the argument that the trial court
had denied the defendant his Sixth Amendment right to “paid counsel of his
choosing,” the Supreme Court noted that it had previously held that “a defendant
who does not require appointed counsel [has the right] to choose who will
represent him.” Id. (citing Gonzalez–Lopez, 548 U.S. at 144, 126 S. Ct. at 2561)
(emphasis added)). It then reversed the conviction because it decided that the
trial court violated the appellant’s right to counsel of his choice, which it held was
4
In Gonzalez–Lopez, the federal trial court had denied pro hac vice
admission to the defendant’s desired out-of-state retained counsel, and it had
refused to allow that counsel to have contact with defendant’s local counsel
during trial; it even ordered a United States Marshal to sit between the two. Id.
(citing Gonzalez–Lopez, 548 U.S. 142–43, 126 S. Ct. at 2560).
6
a structural error that required no showing of harm. Id. (citing Gonzalez–Lopez,
548 U.S. at 144–52, 126 S. Ct. at 2561–66).
But the Supreme Court explicitly limited its holding in Gonzalez–Lopez to
cases in which defendants do not have court-appointed counsel: “Nothing we
have said today casts any doubt or places any qualification upon our previous
holdings that limit the right to counsel of choice . . . . [T]he right to counsel of
choice does not extend to defendants who require counsel to be appointed for
them.” Id. at 343 (citing Gonzalez–Lopez, 548 U.S. at 151, 126 S. Ct. at 2565
(emphasis added)); see United States v. Rincon, 223 F.App’x 331, 331 (5th Cir.
2007) (“Gonzalez–Lopez clearly distinguishes itself from situations involving
appointed counsel.”); see also Caplin & Drysdale, Chartered v. United States,
491 U.S. 617, 624, 109 S. Ct. 2646, 2652 (1989) (stating that the Sixth
Amendment “guarantees defendants in criminal cases the right to adequate
representation, but those who do not have the means to hire their own lawyers
have no cognizable complaint so long as they are adequately represented by
attorneys appointed by the courts”).
Similarly, Texas courts, including ours, have specifically held that an
indigent defendant does not have a right to the counsel of his own choosing.
See Trammell, 287 S.W.3d at 343–44; Maes v. State, 275 S.W.3d 68, 71 (Tex.
App.––San Antonio 2008, no pet.) (“A defendant does not have the right to
choose appointed counsel, and unless he waives his right to counsel and
chooses to represent himself, or shows adequate reasons for the appointment of
7
new counsel, he must accept court-appointed counsel.”); Long v. State, 137
S.W.3d 726, 735 (Tex. App.––Waco 2004, pet. ref’d); Garner v. State, 864
S.W.2d 92, 98 (Tex. App.––Houston [1st Dist.] 1993, pet. ref’d) (indicating that an
indigent defendant “must accept the counsel appointed by the court”); see also
United States v. Hughey, 147 F.3d 423, 428 (5th Cir.) (relating that the “Sixth
Amendment right to counsel of choice is limited, and protects only a paying
defendant’s fair or reasonable opportunity to obtain counsel of the defendant’s
choice”), cert. denied, 525 U.S. 1030 (1998).
Also, Texas cases expressing that a defendant’s Sixth Amendment rights
are protected when he has effective assistance from either retained or appointed
counsel weigh against Appellant’s position. Trammell, 287 S.W.3d at 343; see
Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982)
(stating that once “the court has appointed an attorney to represent the indigent
defendant, the defendant has been accorded the protections provided under the
Sixth and Fourteenth Amendments”); Montemayor v. State, 55 S.W.3d 78, 88–89
(Tex. App.––Austin 2001, pet. ref’d) (holding that the trial court properly removed
the defendant’s appointed counsel when the defendant retained other counsel);
Ex parte Williams, 870 S.W.2d 343, 348 (Tex. App.––Fort Worth 1994, pet. ref’d)
(reciting that a defendant “has the right to have counsel appointed if retained
counsel cannot be obtained”) (quoting Strickland v. Washington, 466 U.S. 668,
685, 104 S. Ct. 2052, 2063 (1984)); Hazelwood v. State, 838 S.W.2d 647, 649
(Tex. App.––Corpus Christi 1992, no pet.) (explaining that an accused has the
8
right “to be represented by either retained or court-appointed counsel”)
(emphasis added).
Accordingly, we hold that the trial court did not violate the Sixth
Amendment when it excluded Bearden from actively participating as co-counsel
alongside Appellant’s court-appointed counsel, and we overrule Appellant’s first
issue. See Gonzalez–Lopez, 548 U.S. at 151, 126 S. Ct. at 2565; Trammell, 287
S.W.3d at 343–44.
No-Duty-to-Retreat Instruction
In her second issue, Appellant contends that the trial court erred by
including in its charge to the jury an instruction that Appellant concedes tracks a
penal code provision regarding a duty to retreat. She complains of the following
instruction:
A defendant who has a right to be present at the location where the
force is used, who has not provoked the person against whom the
force is used, and who is not engaged in criminal activity at the time
the force is used is not required to retreat before using force in self-
defense.
Although Appellant concedes that this instruction tracks the penal code, see Tex.
Penal Code Ann. § 9.31(e) (West 2011), she argues that because the legislature
eliminated the statutory duty to retreat in 2007, the trial court erred by including
this instruction in the charge because it implies that there is a duty to retreat. In
other words, Appellant argues that the charge was erroneous because it “implied
the existence of a non-existent duty.”
9
Prior to September 1, 2007, section 9.32 of the penal code provided that
the use of deadly force was justified only “if a reasonable person in the actor’s
situation would not have retreated.” See Act of May 16, 1995, 74th Leg., R.S.,
ch. 235, § 1, 1995 Tex. Gen. Laws 2141, 2141–42 (amended 2007) (current
version at Tex. Penal Code Ann. § 9.32 (West 2011)). However, effective
September 1, 2007, the 80th Legislature amended the statute to delete existing
language regarding a general duty to retreat and to add new language specifying
the circumstances under which a person does not have a duty to retreat.
Morales v. State, 357 S.W.3d 1, 4–5 (Tex. Crim. App. 2011). The legislature
deleted from penal code section 9.32(a)(2) the language “if a reasonable person
in the actor’s situation would not have retreated; and,” and it added the following
that now appears in section 9.32(c):
A person who has a right to be present at the location where the
deadly force is used, who has not provoked the person against
whom the deadly force is used, and who is not engaged in criminal
activity at the time the deadly force is used is not required to retreat
before using deadly force as described by this section.
Act of Mar. 20, 2007, 80th Leg., R.S., ch. 1, § 3, secs. 9.31, 9.32, 2007 Tex. Gen.
Laws 1, 2 (current version at Tex. Penal Code Ann. § 9.32(c) (West 2011)).
Section 9.31(e) was added at the same time and differs from section
9.32(c) only by omitting “deadly” before each of the four appearances of the word
“force.” It reads as follows:
A person who has a right to be present at the location where the
force is used, who has not provoked the person against whom the
force is used, and who is not engaged in criminal activity at the time
10
the force is used is not required to retreat before using force as
described by this section.
Id. at 1 (current version at Tex. Penal Code Ann. § 9.31(e) (West 2011)).5
Appellant’s characterization of the duty to retreat as “non-existent” may be
too strong. In Morales, the court of criminal appeals addressed the changes
made to the self-defense statute by the 80th Legislature, specifically, the no-duty-
to-retreat provisions at issue here. 357 S.W.3d at 4–6. One of Morales’s
grounds for review asked, “Whether the 2007 amendment to the self-defense
statute eliminated the duty to retreat in a self-defense case.” Id. at 4, n.4.
Although the opinion does not specifically address this question, it implies that
the duty to retreat is not, in Appellant’s words, “non-existent.” First, the court
acknowledged that when the provisions apply, the defendant has no duty to
retreat. Id. at 5. Then, in discussing the “no duty to retreat provisions,” the court
stated that when “these provisions do not apply, the failure to retreat may be
considered in determining whether a defendant reasonably believed that his
5
In conceding that the instruction tracks the penal code, Appellant cites
section 9.32(c). Actually, the court’s charge more closely tracks section 9.31(e).
But given the similarity of the two provisions––9.32(c) refers to “deadly force”
whereas 9.31(e) refers only to “force”––and given that neither side has made an
issue of the trial court’s using language from 9.31(e) as opposed to 9.32(c), the
distinction between the two statutes is not germane to our disposition of this
appeal.
11
conduct was immediately necessary to defend himself or a third person.”6 Id.
Further, the court wrote, when the provisions do not apply, the prosecutor
may argue the failure to retreat as a factor in determining whether
the defendant’s conduct really was immediately necessary. Or if a
fact issue is raised regarding the applicability of the provisions that
specifically negate a duty to retreat, the prosecutor can argue that
the facts do not satisfy the provisions and then argue the failure to
retreat as a factor relevant to the defensive issue.
Id. We conclude, therefore, that the report of the death of the duty to retreat is
exaggerated.
And as the State points out, Appellant cites no authority for her position.
But even if an instruction setting out the circumstances under which a person
using force (or deadly force) has no duty to retreat necessarily implies the
existence of such a duty, we do not hold it error for the trial court to have
included the instruction in its charge. The court of criminal appeals has held that
a trial court will not be held to have erred in its jury charge by tracking the law as
set out by the legislature. Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim.
App. 1996); Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994), cert.
denied, 514 U.S. 1068 (1995). As stated above, Appellant concedes that the
complained-of instruction tracked the law as set out by the legislature.
6
See Tex. Penal Code Ann. § 9.31(a) (force is justified “when and to the
degree the actor reasonably believes the force is immediately necessary to
protect” against unlawful force), § 9.32(a)(2) (“when and to the degree the actor
reasonably believes the deadly force is immediately necessary” to protect against
deadly force or to prevent the imminent commission of certain crimes).
12
Moreover, the legislature added the language of which Appellant
complains in the very same act in which it deleted the language that she calls the
statutory basis for a duty to retreat. See Act of Mar. 20, 2007, 80th Leg., R.S.,
ch. 1, § 3, secs. 9.31, 9.32, 2007 Tex. Gen. Laws 1, 1–2, supra. What we take
from that is that the legislature intended to eliminate a defendant’s burden to
affirmatively establish that he or she retreated before employing force (or deadly
force) and to stress the set of circumstances under which a defendant could not
be held to have such a duty. We refuse to infer, therefore, that the legislature
intended to abolish the duty to retreat while at the same time implying its
continued existence. Absent any controlling authority to the contrary, Appellant’s
position is not persuasive and we overrule her second issue. See Martinez, 924
S.W.2d at 699; Riddle, 888 S.W.2d at 8.
Jury Argument
In her third and final issue, Appellant contends that the prosecutor
improperly struck at her over the shoulders of defense counsel during closing
argument when she argued that Tashira told the police on the day of the murder
something different than what she told the jury “after four to five visits at the
defense attorney’s office.” The trial court sustained Appellant’s objection,
instructed the jury to disregard, and denied Appellant’s motion for mistrial. The
issue, then, is whether the trial court abused its discretion by not granting a
mistrial. See Archie v. State, 340 S.W.3d 734, 738–40 (Tex. Crim. App. 2011);
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Hunt v. State, No.
13
02-11-00101-CR, 2012 WL 858613, at *2 (Tex. App.––Fort Worth Mar. 15, 2012,
pet. ref’d) (mem. op., not designated for publication).
We review a trial court’s ruling on a motion for mistrial for an abuse of
discretion. Hawkins, 135 S.W.3d at 77; Hunt, 2012 WL 858613, at *2. When the
refusal to grant a mistrial follows an objection for improper jury argument, we
balance three factors to determine whether the trial court abused its discretion:
(1) the severity of the misconduct (prejudicial effect), (2) curative measures, and
(3) the certainty of conviction absent the misconduct. Archie, 340 S.W.3d at 739;
Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.
App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999); Hunt, 2012 WL
858613, at *2. Only in extreme circumstances, when the prejudice caused by the
improper argument is incurable, that is, “so prejudicial that expenditure of further
time and expense would be wasteful and futile,” will a mistrial be required.
Hawkins, 135 S.W.3d at 77; see Archie, 340 S.W.3d 739 (“Mistrial is . . .
appropriate . . . when . . . the objectionable events ‘are so emotionally
inflammatory that curative instructions are not likely to prevent the jury from being
unfairly prejudiced against the defendant.’”) (citing Young v. State, 137 S.W.3d
65, 71 (Tex. Crim. App. 2004)). In most cases, an instruction to disregard will
cure the alleged harm. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App.
2000), cert. denied, 532 U.S. 944 (2001).
In examining the first factor, we consider the severity or prejudicial effect of
the misconduct. See Archie, 340 S.W.3d at 739; Hawkins, 135 S.W.3d at 77.
14
Here is the portion of the State’s closing argument that Appellant complains
struck at her over her counsel’s shoulders:
And what’s the testimony then? He [the deceased] is gathering up
his property to leave. Tashira says he opens the door, and the
defendant says, her mother, she tells Detective O’Brien immediately
after this happens, not a year later, not after four to five visits at the
defense attorney’s office, she says her mother says, “Go ahead and
hit me.”
The trial court sustained Appellant’s objection. But it may have done so in
an abundance of caution because we are not entirely convinced that the
comment was improper, let alone severe or all that prejudicial.
Permissible jury argument generally falls into one of four areas:
(1) summation of the evidence; (2) reasonable deduction from the evidence;
(3) an answer to the argument of opposing counsel; or (4) a plea for law
enforcement. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010), cert.
denied, 132 S. Ct. 128 (2011); Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim.
App.), cert. denied, 531 U.S. 850 (2000). When a prosecutor makes uninvited
and unsubstantiated accusations of improper conduct directed toward a
defendant’s attorney, in an attempt to prejudice the jury against the defendant,
courts refer to this as striking a defendant over the shoulders of his counsel.
Phillips v. State, 130 S.W.3d 343, 355 (Tex. App.––Houston [14th Dist.] 2004,
pet. ref’d) (op. on reh’g), aff’d at 193 S.W.3d 904 (Tex. Crim. App. 2006).
Argument that strikes at a defendant over the shoulders of defense
counsel is improper. Davis, 329 S.W.3d at 821; Wilson v. State, 7 S.W.3d 136,
15
147 (Tex. Crim. App. 1999); Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim.
App.), cert. denied, 516 U.S. 832 (1995). This prohibition protects the defendant
from improper prosecutorial character attacks on defense counsel. Davis v.
State, 268 S.W.3d 683, 713 (Tex. App.––Fort Worth 2008, pet. ref’d).
A prosecutor risks improperly striking at a defendant over the shoulders of
counsel when the argument refers to defense counsel personally and when the
argument explicitly impugns defense counsel’s character. Mosley, 983 S.W.2d at
259; Davis, 268 S.W.3d at 712. For example, a prosecutor impermissibly strikes
at a defendant over counsel’s shoulders when the prosecutor argues that
defense counsel manufactured evidence, suborned perjury, accepted stolen
money, or represented criminals. See Phillips, 130 S.W.3d at 355; Washington
v. State, 822 S.W.2d 110, 119 (Tex. App.––Waco 1991), rev’d on other grounds,
856 S.W.2d 184 (Tex. Crim. App. 1993); see also Fuentes v. State, 664 S.W.2d
333, 335 (Tex. Crim. App. [Panel Op.] 1984) (prosecutor may not accuse
defense counsel of bad faith or insincerity or discuss counsel’s “usual antics”);
Anderson v. State, 525 S.W.2d 20, 22 (Tex. Crim. App. 1975) (arguments that
criticize defense counsel, including that defense counsel “did not have guts
enough” to argue innocence of his client and request for more time to argue
because of defense counsel’s “frivolous objections” were improper); Jones v.
State, 151 Tex. Crim. 115, 119, 205 S.W.2d 590, 592 (1947) (prosecutor argued
that men had been “cleared of murder by the machinations of” defense counsel’s
16
“great” and “shrewd mind” that would “take care of everything and furnish the
evidence”).
An argument that is directed at the defendant but not personally at defense
counsel is not a strike over the shoulders of counsel. See Davis, 329 S.W.3d at
823. For an improper jury argument to mandate reversal, it must be extreme,
violate a mandatory statute, or inject new facts into the record. Brandley v. State,
691 S.W.2d 699, 712–13 (Tex. Crim. App. 1985). The standard of review for a
trial court’s ruling on an objection asserting improper jury argument is abuse of
discretion. See Lemon v. State, 298 S.W.3d 705, 707 (Tex. App.––San Antonio
2009, pet. ref’d); York v. State, 258 S.W.3d 712, 717 (Tex. App.––Waco 2008,
pet. ref’d).
We do not read the complained-of portion of the prosecutor’s remarks as
an attack on counsel’s character or a criticism of his defense of Appellant. See
Mosley, 983 S.W.2d at 259. Nor did the prosecutor accuse counsel of any
wrongdoing or impropriety. See id.; Fuentes, 664 S.W.2d at 335; Phillips, 130
S.W.3d at 355. Rather, the prosecutor’s argument pointed out––as the record
amply demonstrated––that Tashira’s original statements to police differed from
what she testified to at trial. Although it would not be unreasonable to infer that
she changed her story after consulting with defense counsel, it does not
necessarily follow that she did so at counsel’s direction. Nor did the prosecutor
argue that counsel directed her to change her story. She merely argued that the
story changed between the time Tashira told it to the police on the day of the
17
murder and when she told it to the jury and that in between the two she had
visited with the defense. And, again, the record supports that argument.
The cases showing strikes over the shoulders of counsel have been more
directly aimed at counsel than this. See Mosely, 983 S.W.2d at 259; Fuentes,
664 S.W.2d at 335 (prosecutor argued defense counsel acted “in bad faith like
usual” and knew purported evidence of police misconduct was “a bunch of
garbage”); Wilson v. State, 938 S.W.2d 57, 58 (Tex. Crim. App. 1996)
(prosecutor argued that “[defense counsel] wishes . . . that you turn a guilty man
free . . . because he doesn’t have the obligation to see that justice is done”);
overruled on other grounds by Motilla v. State, 78 S.W.3d 352, 356–57 n.26
(Tex. Crim. App. 2002); Anderson v. State, 525 S.W.2d 20, 21–22 (Tex. Crim.
App. 1975) (State accused defense attorneys of lying); Phillips, 130 S.W.3d at
356–57 (State’s arguments in a sexual assault of a child case that the defense—
“nailed [the complainant] up on a cross,” “nail[ed her] to a cross,” and “called her
whore”—were targeted at defense counsel’s handling of the case and made
toward counsel personally).
Nevertheless, largely because the trial court sustained the objection, we
will assume that the prosecutor’s remark was improper. Skipping for the time
being the first factor for determining whether the trial court erred by refusing a
mistrial based on improper jury argument (severity or prejudicial effect), under
the second factor, we review the character of the measures adopted to cure the
misconduct. See Archie, 340 S.W.3d at 739; Hawkins, 135 S.W.3d at 77. The
18
law generally presumes that instructions to disregard and other cautionary
instructions will be duly obeyed by the jury. Archie, 340 S.W.3d at 741; Gardner
v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.), cert. denied, 484 U.S. 905
(1987). And generally, a trial court cures any error from an improper jury
argument when it instructs the jury to disregard the comment. See Wilkerson v.
State, 881 S.W.2d 321, 327 (Tex. Crim. App.); cert. denied, 513 U.S. 1060
(1994); Phillips, 130 S.W.3d at 355. In this case, the trial court sustained the
objection to the prosecutor’s argument, immediately ordered the jury to disregard
it, and the prosecutor did not revisit this line of argument. The second factor,
therefore, weighs in favor of the trial court’s ruling.
Returning to the first factor, we conclude that the remark was not severe or
prejudicial. As we have said, it appears to us that the gist of the argument was
directed at Tashira and her having changed her story and that argument was
supported by the record. During the State’s examination of Tashira, the
prosecutor pointed out several instances in which Tashira’s statements to the
police differed from her testimony at trial. The prosecutor’s remark reminding the
jury of that fact did not inject anything into the trial of which the jury was
previously unaware. Even assuming that the prosecutor’s remark was improper,
we hold that it was not severe or unduly prejudicial. The first factor weighs
against Appellant’s position.
Lastly, under the third factor, the reviewing court looks to the certainty of
conviction absent the misconduct. See Archie, 340 S.W.3d at 739; Hawkins, 135
19
S.W.3d at 77. We find the evidence to support Appellant’s conviction to be fairly
compelling. In our view, the evidence supporting the conviction was strong, and
the jury would almost surely have convicted Appellant regardless of the
prosecutor’s comment during her closing argument.
The magnitude of the prejudice caused by the prosecutor’s remark was not
so great that a jury would necessarily have discounted the trial court’s instruction
to disregard it. It seems unlikely that the jury would have ignored the trial court’s
timely instruction and convicted Appellant, not on the compelling evidence
introduced against her, but because the prosecutor implied that Appellant’s
daughter changed her testimony after consulting with defense counsel. Under
these circumstances, assuming without deciding that the prosecutor’s comments
were improper, we hold that the trial court did not abuse its discretion by denying
Appellant’s request for a mistrial. See Archie, 340 S.W.3d at 742; Wilkerson, 881
S.W.2d at 327. Accordingly, we overrule Appellant’s third issue.
Conclusion
Having overruled all of Appellant’s issues, we affirm the judgment of the
trial court.
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.
PUBLISH
DELIVERED: February 28, 2013
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