in the Matter of B. D.

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00083-CV

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IN THE MATTER OF B. D.

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On Appeal from the County Court at Law

Harrison County, Texas

Trial Court No. 2004-0824

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            B. D. filed his appeal with this Court indicating that it was from a juvenile proceeding. Based on that information, we filed the action as a civil appeal. B. D. has now informed us the appeal is actually from a ruling in a criminal action. Accordingly, the appeal has been refiled as a criminal action, and for administrative purposes, the civil appeal is dismissed.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          August 1, 2005

Date Decided:             August 2, 2005

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            On her day off work, S.B.'s mother, Amanda, examined files stored on the computer in S.B.'s room. To her horror, Amanda discovered photographs of Boyde Randall Fields, then Amanda's husband, engaging in intercourse with S.B., then thirteen years of age. When Amanda confronted S.B. with her discovery, S.B. began crying and stated she had not wanted to engage in intercourse with Fields.    In custody, Fields gave a written statement wherein he admitted touching S.B.'s vagina and anus with his penis and taking pictures of the assault. Fields also admitted in a written statement he had given S.B. a wine cooler and had engaged in intercourse with her. S.B. testified Fields began touching her when she was ten or eleven years old. She testified he penetrated her vaginally on two occasions, one in July 2001 and another in August 2001. S.B. feared getting in trouble and being hurt by Fields if she were to tell anyone of the assaults.

            Fields pled guilty to the offense of aggravated sexual assault of a child; and, after punishment was tried to a Harris County jury, Fields was sentenced to forty years' confinement and a fine of $10,000.00.

            In his sole point of error, Fields complains he was denied a fair trial by an impartial jury when the trial court overruled his objection to the State's jury argument. He contends the State's closing argument went beyond a plea for law enforcement and, instead, called on the jury to abandon its objectivity. Fields bases his contention on the following exchange:

[State]: When y'all go home and you hear stories about somebody who commits this kind of crime, who not only touches and feels on a child, but sexually assaults her in her own home, right in front of her gerbil cage, on the first big-girl sheets that she's gotten from her mom's hand-me-down, when somebody does that and that is the core of our society and rips the heart out of a little 13-year-old girl who should be interested in talking on the phone and the new school band and take that away from her, you have done something that is so utterly destructive that it cannot be fixed.

So, when you think about what is our worst nightmare? What is the scariest thing that–

[Defense]: I object, Your Honor. This is all just inflammatory. She's way out of the record. It has nothing to do with the summation of the evidence. Strictly to inflame the passions of the jury, Your Honor.

                        THE COURT: Overruled.

. . . .

[State]: When y'all hear about those sorts of things you realize that that's exactly what we think about when we're at home. When you're at home and you've gotten your children to bed and–

[Defense]: I object again. This is all inflammatory, trying to enrage the jury as far as their children. There's nothing as far as evidence. This is completely out of the record.

THE COURT: This is argument. You may proceed.

[State]: When you think about being in your home and the dangers out there, how to protect your children, how to protect your grandchildren–

[Defense]: Your Honor, this is an improper plea for law enforcement, how to protect your children. It has nothing to do with this case. It has nothing to do with the summation of evidence in this case, Judge.

THE COURT: It's overruled.

                        [Defense]: It's purely an–

                        [State]: When you hear that–

                        THE COURT: Let him finish his objection.

                        [Defense]: –to inflame the passions and prejudice this Defendant.

                        THE COURT: It's overruled.

            The State then concluded final argument:

[State]: When you're at home and you're in that situation and you turn on the news and you hear a story about a child who's been violated, and you hear about how that violation goes on and on and in this internet age, how that violation goes on indefinitely to the end of time, and you're sitting there on your sofa, and you think, my goodness, somebody has to do something about this. This cannot happen. We cannot have this danger on our streets. Somebody has got to do something. Somebody has got to stop it somehow.

Ladies and gentlemen, today you're the jurors and you're serving your country, and you are serving your city of Houston and your County, and you're serving all the people there and you're that somebody who has got to protect the rest of us. You're that somebody who has got to do something. You're the person you think about when you watch the news. And, ladies and gentlemen, go back there and do your job. Go back there and find that he needs to spend his life in prison. Find that he needs to pay a 10,000-dollar fine because that sends a message. It sends a message to everybody out there. It sends a message that this kind of thing is not tolerated. We won't take the danger in our society, and you have life in prison. Go back there and do it because we know y'all can. You've told me you could. And this is exactly the kind of evidence that warrants life in prison and a 10,000-dollar fine.

            Proper jury argument includes four areas: 1) summation of the evidence presented at trial, 2) reasonable deductions drawn from that evidence, 3) answers to opposing counsel's argument, and 4) pleas for law enforcement. McFarland v. State, 845 S.W.2d 824, 844 (Tex. Crim. App. 1992). We must consider counsel's remarks during final argument in the context in which they appear. Denison v. State, 651 S.W.2d 754, 761 (Tex. Crim. App. 1983); Blassingame v. State, 477 S.W.2d 600, 604 (Tex. Crim. App. 1972).

            The State draws comparisons between the jury argument in the instant case and that in Tejerina v. State, 786 S.W.2d 508 (Tex. App.—Corpus Christi 1990, pet. ref'd). In Tejerina, the State made the following remarks in the final argument of the guilt/innocence phase of trial:

I ask you to send her a message and anyone else out there who might be contemplating this same kind of activity, that you intend to protect our people, protect our citizens, and our children here in Goliad County. And the way to let her know that is to vote guilty on Verdict Form Number 1.

. . . .

And if I have any regret in this case, if I didn't do something that I should have from your standpoint or if I did something that you didn't like, well I'm sorry because I would like to think I did everything I could to bring that dope seller to justice and put her someplace so that some young citizen or high school student or other person will not be exposed to that sort of thing in the future.

Id. at 511 (emphasis added). The court concluded that these remarks amounted to a plea for law enforcement and a response to defense counsel's argument and, thus, were proper. Id. at 512.

            Similarly, the State relies on Smith v. State, 846 S.W.2d 515 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd). The State made the following comments in Smith:

You want to do the easy thing but I'm asking you to do the right thing, according to the law and evidence.

How many times have you been out on the streets? You know what it's like out there. There is an ongoing fear in our community. You try to lock your house, your windows, your cars. You worry about your family's safety because that's the way the things are because of the crime.

You often hear people say, "What are they doing down there at the courthouse? The whole system has gone crazy. What are they doing down there that it's gotten this way?" Well, today, folks, you are the "they," so don't be fooled by argument by the defense. They're always going to argue, "It isn't enough." They're always going to want a thousand pounds of evidence, even when we meet what is necessary. Use your common sense. Please use your power wisely.

Id. at 517. Although the court concluded the point of error was not properly before the court since defense counsel objected to the remark on different grounds at trial than those asserted on appeal, the court concluded that, even if the point had been properly presented, Smith's contention would have been overruled. Id. at 518. These remarks encouraged the jury to do something about crime and was constituted a proper plea for law enforcement. Id. (citing to Haynes v. State, 627 S.W.2d 710, 714 (Tex. Crim. App. 1982); Holloway v. State, 525 S.W.2d 165, 170 (Tex. Crim. App. 1975); Brown v. State, 508 S.W.2d 91, 96 (Tex. Crim. App. 1974); Williams v. State, 630 S.W.2d 866, 867 (Tex. App.—Houston [1st Dist.] 1982, no pet.)).

            Fields, however, looks to Brandley v. State, 691 S.W.2d 699 (Tex. Crim. App. 1985), rev'd on other grounds, 781 S.W.2d 886 (Tex. Crim. App. 1990), to support his contention that the State's argument was improper. In Brandley, the prosecutor stated, "it is fair for you to think about the feelings of the father who lost his baby daughter and it is fair for you to think about how you would feel if you lost your children in considering . . . ." Id. at 712 (emphasis added). The defense objected at that point, and the trial court sustained the objection, instructed the jury to disregard the argument, and overruled Brandley's motion for mistrial. Id. The Texas Court of Criminal Appeals concluded that this portion of the State's argument did not fall into any of the four permitted areas of proper jury argument and represented a plea for the jury to abandon its objectivity. Id.

            Fields also compares the argument before us to the argument made in Boyington v. State, 738 S.W.2d 704 (Tex. App.—Houston [1st Dist.] 1985, no pet.). The State in Boyington stated:

This is called a punishment hearing. That is why you are here today. If you are going to go back there and show leniency, that's fine. But please have a good reason for it. Because what would you do if this happened to your family? You know, all of you have got families here and you have got kids and you have got a home. How would you feel if your home was firebombed one night and you saw your children on fire? What do you think should happen to a person like Barron Lee Boyington, that does something like that? And it is your opportunity to say, "Barron Lee Boyington, you have no right to do what you did to that Anderson family, and we aren't going to put up with it." So please put yourself in that place when you are deciding this. Put yourself in the place of that Anderson family and imagine that was your family that was firebombed in the middle of the night. Imagine that it was your son that has his legs on fire. Imagine that it was your home that was burned out. Would you want mercy shown? Would you want leniency shown? . . . .

And please keep in the forefront of your mind just like it was your family that received the fire bomb and you are in a den at 3:00 a.m. on a hot summer evening. Keep that in the forefront of your mind and just think what you would want to happen in that situation.

Id. at 709. The court concluded Boyington's trial counsel was ineffective by failing to object to the several instances of improper jury argument. Id.

            We distinguish both Brandley and Boyington. In both of those cases, prosecutors urged the jurors to assess the same punishment as they would want assessed had the defendant committed the same wrong against them. Here, the State asked the jurors to protect their children, as well as the rest of the community, from offenders such as Fields. Such argument, in its overall context, represents a proper plea for law enforcement. See Smith, 846 S.W.2d at 517; Tejerina, 786 S.W.2d at 513.

            We do not approve of the State's argument to the extent it invoked protection of the jury members' children. But we are to consider the State's remarks in their context. As the State continued its final argument to the jury, it became increasingly clear that counsel's remarks constituted a proper plea for law enforcement. The State referred to "dangers on our streets," "your country," "your city of Houston," "serving all the people," "somebody who has got to protect the rest of us," "our society." Similarly to the arguments in Smith and Tejerina, the State's comments regarding the jurors' children fell within an overall context that urged community safety and protection from the type of offense committed by Fields.

            Even if the State's argument fell outside the four permissible areas of jury argument, the judgment still must be affirmed, because any error in allowing the State's argument was harmless. Improper jury argument is nonconstitutional error reviewed under a substantial-rights analysis. See Tex. R. App. P. 44.2(b). A criminal defendant's substantial right is affected, and reversible error has occurred, if the error had "a substantial or injurious effect on the jury verdict." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We analyze the harm from improper jury argument by considering the following factors: (1) the prejudicial effect of the misconduct, (2) the curative measures taken by the court, and (3) the certainty of conviction without the misconduct. Martinez v. State, 17 S.W.3d 677, 692–93 (Tex. Crim. App. 2000). The trial court allowed the prosecutor's argument without any curative measures. This matter involves punishment for offenses to which Fields pled guilty. Therefore, we examine the prejudicial effect, if any, of the challenged argument on Fields' punishment. Cifuentes v. State, 983 S.W.2d 891, 896–97 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd).

            The State asked the jury to impose a life sentence. Fields asked the jury to assess punishment on the lower side of the scale. The range of punishment for this offense was five to ninety-nine years or life. See Tex. Pen. Code Ann. § 12.32 (Vernon 2003). The jury refused to assess the maximum or close to the maximum sentence. It appears that, although the sentence assessed was forty years, that sentence was closer to the bottom than to the top of the range of punishment. Therefore, even if the State's argument overall was improper, any prejudicial effect of the argument on the jury's assessment of punishment is not apparent. See Cifuentes, 983 S.W.2d at 896–97 (jury assessed punishment far below State's request).

            For the foregoing reasons, we conclude that allowing the State's final argument to the jury in the punishment phase of the proceedings did not constitute reversible error. We overrule Fields' sole point of error and affirm the trial court's judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          November 11, 2003

Date Decided:             December 12, 2003

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