Marcus Lamont Allen v. the State of Texas

NO. 12-21-00226-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MARCUS LAMONT ALLEN, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Marcus Lamont Allen appeals his conviction for felony assault family violence. In two
issues, Appellant argues that the trial court abused its discretion in his trial on punishment by
overruling his objection to a portion of the State’s jury argument and in admitting two exhibits
over his objection. We reverse and remand.
BACKGROUND
Appellant was charged by indictment with felony assault family violence. 1 The
indictment further alleged that Appellant previously was convicted of evading arrest with a
vehicle. Appellant pleaded “not guilty” to the charge and pleaded “not true” to the jurisdictional
enhancement of assault family violence under Texas Penal Code, Section 22.01(b)(2)(A). The
matter proceeded to a jury trial. The jury found Appellant “guilty” as charged and the matter
proceeded to a trial on punishment, at which Appellant pleaded “true” to the enhancement
allegation of evading arrest with a vehicle. Following the presentation of evidence and argument
of counsel, the jury assessed Appellant’s punishment at imprisonment for twenty years. The trial
court sentenced Appellant accordingly, and this appeal followed.
1
See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2022).
PROSECUTORIAL STATEMENTS DURING JURY ARGUMENT
In his first issue, Appellant argues that the trial court abused its discretion in his trial on
punishment by overruling his objection to a portion of the State’s jury argument because such
argument amounted to a comment on his exercise of his right to a jury trial.
Standard of Review and Governing Law
We review the trial court’s ruling on an objection to jury argument for abuse of
discretion. Smith v. State, 483 S.W.3d 648, 657 (Tex. App.–Houston [14th Dist.] 2015, no pet.);
Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.–Houston [14th Dist.] 2012, pet. ref’d). We
analyze the argument in light of the entire record and not upon the argument’s isolated
occurrence. See DeLarue v. State, 102 S.W.3d 388, 405 (Tex. App.–Houston [14th Dist.] 2003,
pet. ref’d). Proper jury argument (1) summarizes the evidence, (2) makes reasonable deductions
from the evidence, (3) responds to arguments of opposing counsel, or (4) pleads for law
enforcement. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Even when
an argument exceeds the permissible bounds of these approved areas, it will not constitute
reversible error unless, in light of the record as a whole, it is extreme or manifestly improper,
violates a mandatory statute, or injects new facts harmful to the accused into the trial
proceeding. Id. The remarks must have been a willful and calculated effort on the part of the
State to deprive appellant of a fair and impartial trial. Id.The Parties’ Arguments
In the guilt-innocence phase of trial, in its opening jury argument, the State argued, in
pertinent part, as follows:
You are also going to get to hear from a crime scene investigator, who is a specialist in
fingerprints. You’ve just heard the defendant stand up and you heard the defendant tell you that
the prior that I read in the indictment was not true. As I explained to y’all in voir dire yesterday,
in order for an assault that’s just an assault to be a felony, there has to be a prior. So by virtue of
him pleading not true, you will hear from a crime scene detective who is going to tell you that he
looked at the judgment and the sentence of that, he’s compared it to documents that he has access
to linked specifically to this defendant, and that he can definitively tell you it is one in the same,
Marcus Allen, that has been convicted. I don’t get to tell you why people do what they do, but I
will tell you this, remember yesterday I told you no matter what the evidence is, no matter what
the situation is, a defendant has an absolute right to trial. And they have an absolute right to do
what they want to do at trial as long as it’s within the law.
After the presentation of evidence, in its initial closing argument, the State asserted to the jury,
2
And, really, also your deliberation is kind of a mini two-step process, because not only
are we talking about the events of May 17th of 2020, you’ve also got to find beyond a reasonable
doubt that he was, in fact, convicted of family violence before. So what’s the evidence to that?
Well, you heard Travis Breazeale. He’s got over 20 years as a peace officer and ten-plus years as
a criminal specialist; testified to you about the fingerprint process and judgments and how you
know. And in State’s 2, you even have this prior judgment. And Investigator Breazeale told you
how he rolled the defendant’s fingerprints himself, confirmed that was Marcus Allen, confirmed
some of the other specific identifiers.
This judgment doesn’t have fingerprints, but he was able to match it to Marcus Allen
through name, through birth date, through that PID number that he said matched another one that
he reviewed that he confirmed that did have fingerprints. So you’ve heard definitive expert
testimony that this, in fact, is the same man.
And that’s important because that’s what makes this a felony, right? Mr. Chamness
explained it to you. If you commit assault family violence with a prior conviction of assault
family violence, that’s what makes it a felony.
In response, Appellant argued to the jury as follows:
It’s just like the right to a jury trial. You have a right to a jury trial on every element of
the case. The State will say -- get up here in opening statements and say, I don’t know why they
do the things they do, you know, trying to say, Well, he should have pled true to something -- you
can’t hold that against him because -- he did this, this is him. We’re not arguing that. I’m not
standing up here arguing for it or arguing that at all. But he has a right, a constitutional right that
you said that you agreed you couldn’t hold against him, right, to make the State prove each and
every element of the case. This is one of them, right?
In its rebuttal argument, the State retorted,
[Appellant’s counsel] wants to call her a liar. Let me tell you what. That guy right there
(indicating) is an abusive coward. That’s exactly who he is. He stood up in front of y’all, pled not
guilty, which he can do, to an offense that he clearly committed. But then, just to show you how
obstinate he is, he told you, I don’t have a prior conviction either.
[Appellant’s counsel] says, Well, that’s his right. Sure is his right. He wants to waste
your time and he wants to lie to you under oath, do it. But guess what? Paragraph 6, you can take
that into account.[2]
(emphasis added). Appellant objected to the prosecuting attorney’s argument on the ground that
it sought to have the jury hold against Appellant his exercise of his right to a jury trial. The trial
court overruled Appellant’s objection. Ultimately, the jury assessed Appellant’s punishment at
the maximum term of imprisonment of twenty years.
2
Paragraph 6 pertained to Appellant’s election not to testify and instructed the jury that it could not hold
that fact against Appellant in its deliberations.
3
Discussion
“The Fourteenth Amendment to the United States Constitution guarantees a right to trial
by jury in all criminal cases that, were they to be tried in a federal court, would come within the
Sixth Amendment’s guarantees.” Eason v. State, No. 05-10-01232-CR, 2012 WL 2444780, at
*3 (Tex. App.–Dallas June 28, 2012, no pet.) (op., not designated for publication); Chaouachi v.
State, 870 S.W.2d 88, 90 (Tex. App.–San Antonio 1993, no pet.); see also U.S. CONST. amend.
VI (“[I]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial”).
Article I, section 10 of the Texas Constitution guarantees the right to trial by jury in criminal
prosecutions. Chaouachi, 870 S.W.2d at 90; see also TEX. CONST. art. I, § 10; TEX. CODE CRIM.
PROC. ANN. arts. 1.05, 1.12 (West 2005); Franklin v. State, 576 S.W.2d 621, 623 (Tex. Crim.
App. 1978). It is impermissible to impose a penalty for the exercise of a constitutional right. See
Villarreal v. State, 860 S.W.2d 647, 649 (Tex. App.–Waco 1993, no pet.) (right to jury trial
guaranteed under Sixth and Fourteenth Amendments; prosecutor’s comments about defendant’s
forcing victim to testify [by virtue of proceeding to trial] were improper because penalty cannot
be imposed for exercise of constitutional right). 3 “When a comment is made by a prosecutor
regarding a defendant’s election to proceed with a jury trial, the concern of the court centers
around whether the prosecutor had, in effect, asked the jury to punish or otherwise penalize the
defendant for exercising his right to a trial by jury.” Carlock v. State, 8 S.W.3d 717, 724 (Tex.
App.–Waco 1999, pet. ref’d).
Propriety of the State’s Jury Argument
The State first argues that the prosecuting attorney’s argument was not improper. In so
doing, it relies on Anderson v. State, 742 S.W.2d 541, 542–43 (Tex. App.–Waco 1987), vacated
on other grounds, 760 S.W.2d 262 (Tex. Crim. App. 1988). In Anderson, the prosecuting
attorney stated that the defendant pleaded “not true” at the outset of the trial on punishment and
that, as a result, the state had to call a fingerprint expert to prove up the conviction. See id. The
State continued, “He doesn’t want to fess up. Not at all.” Id. at 543. The defendant objected
that the prosecutor improperly commented on his failure to testify, and the trial court overruled
his objection. Id. The court of appeals expressed doubt that the prosecutor’s statement was a
3
“It is improper for a prosecutor in argument to refer to a defendant’s exercise of his right to a jury trial.
This conclusion follows from the premise that it is impermissible to impose a penalty for the exercise of a
constitutional right.” Carter v. State, No. 01–98–00556–CR, 1999 WL 517130, at *6 (Tex. App.–Houston [1st
Dist.] July 22, 1999, pet. ref’d) (op., not designated for publication); see also Eason v. State, No. 05-10-01232-CR,
2012 WL 2444780, at *3 (Tex. App.–Dallas June 28, 2012, no pet.) (op., not designated for publication).
4
comment on the appellant’s failure to testify before proceeding to resolve the issue by
conducting a harm analysis. See id. We are not persuaded that this expression of doubt renders
Anderson sufficiently analogous to permit us to hold that the prosecuting attorney’s comments
here are appropriate in the face of Appellant’s comparatively distinct objection that they
amounted to an improper comment on his exercise of his right to a jury trial.
In the instant case, the State first raised the matter of Appellant’s decision to plead “not
true” to the jurisdictional enhancement in its opening argument to the jury during the guilt-
innocence phase of trial. It did so in a way that, while not overtly critical of Appellant’s
decision, certainly was capable of raising the question in the jurors’ minds that Appellant may
have had reasons for doing so apart from his exercise of his constitutional rights, which rights the
prosecutor emphasized to the jury. In its initial closing argument, the State made no reference to
Appellant’s decision to plead “not true” to the jurisdictional enhancement allegation. In
Appellant’s closing argument, he paraphrased the prosecuting attorney’s statement from his
opening argument, “I don’t get to tell you why people do what they do,” and reminded the jury
that it cannot hold Appellant’s decision to exercise his constitutional right to a jury trial against
him and that the State must prove each element of its case.
In rebuttal, the State called Appellant an “abusive coward” and noted that Appellant
pleaded “not guilty” to an offense “he clearly committed.” And although the prosecutor
acknowledged that Appellant had a right to a jury trial, he persisted, couching Appellant’s
underlying intent for his plea of “true” as obstinance, by stating “he told you I don’t have a prior
conviction either.” And while the prosecuting attorney followed this statement by agreeing with
defense counsel that Appellant has a right to a jury trial, we note that such a statement rings
hollow since, on its heels, the prosecutor attributed to Appellant, an underlying intent of wanting
to waste the jurors’ time and lie under oath to them. 4 Lastly, we cannot overlook that the
prosecuting attorney immediately followed these accusations of Appellant’s ill intent with a
reference to Paragraph 6 of the court’s charge on punishment to preface his statement to the jury,
“you can take that into account.” And though the record reveals that Paragraph 6 instructs the
jury about Appellant’s privilege not to testify, which it cannot take into consideration for any
purpose, rather than his exercise of his right to a jury trial, the apparent implication of this
4
Appellant elected not to testify in either phase of his trial. So the only statement to which the prosecutor’s
statement that Appellant wants to “lie” to the jury could apply is his plea of “not true” to the jurisdictional
enhancement allegation.
5
statement is that the jury “can” and should hold Appellant’s decision to plead “not true” against
him.
Based on the foregoing, we conclude that the prosecuting attorney improperly
commented on Appellant’s exercise of his right to a jury trial, and in so doing, sought to compel
the jury to punish or otherwise penalize Appellant for exercising this right by suggesting to the
jury that he exercised his right for the purpose of wasting the jury’s time and his general
dishonesty. See Villarreal, 860 S.W.2d at 649 (prosecutor argued defendant forced victim to
come to courtroom to testify in front of a bunch of strangers); Wages v. State, 703 S.W.2d 736,
740 (Tex. App.–Houston [14th Dist.] 1986), pet. dism’d improvidently granted, 770 S.W.2d 779(Tex. Crim. App. 1987) (prosecutor’s argument was that the reason jury had to come to court for
four days was because defendant insisted on trial); see also Eason, 2012 WL 2444780, at *4 (if
prosecutor made reference to defendant’s exercising his right to jury trial in way calculated to
place blame upon defendant for exercising that right, such would constitute error).
Invited Argument
The State next argues that if the prosecutor’s comments were impermissible, the trial
court did not abuse its discretion in overruling Appellant’s objection because Appellant “invited”
the State’s argument. Under the invited argument rule, a defendant cannot complain of improper
prosecutorial argument if he invited the argument. Watts v. State, 371 S.W.3d 448, 458 (Tex.
App.–Houston [14th Dist.] 2012, no pet.) (citing Ripkowski v. State, 61 S.W.3d 378, 393 (Tex.
Crim. App. 2001)). If the defendant’s counsel goes outside the record in his argument, the
prosecutor is also permitted to go outside the record to respond as long as the response is within
the scope of the invitation. Watts, 371 S.W.3d at 458.
Here, Appellant’s statement in his closing argument was made in direct response to the
State’s opening argument made during guilt-innocence. Appellant paraphrased the State’s
comments and emphasized to the jury that his right to a trial by jury could not be held against
him. In rebuttal, the prosecutor not only responded to Appellant’s argument but greatly escalated
the matter by his comments, in which he attributed malevolent intent to Appellant for exercising
his constitutional right to a jury trial. We disagree with the State that its excessive rebuttal to
Appellant’s response to a matter it first raised was invited by Appellant. See id. Therefore, we
hold that the trial court abused its discretion in overruling Appellant’s objection to the State’s
jury argument.
6
Constitutional Harm
Having concluded that the trial court abused its discretion in overruling Appellant’s
objection, we now consider whether Appellant was harmed by the trial court’s ruling. Because
the error at hand implicates Appellant’s rights under the United States and Texas constitutions,
we review the error pursuant to Texas Rule of Appellate Procedure 44.2(a). See TEX. R. APP. P.
44.2(a).
Constitutional error is harmful unless a reviewing court determines beyond a reasonable
doubt that the error did not contribute to the conviction. Id. At the outset of its review, the court
of appeals presumes reversal of constitutional error is required. See Morris v. State, 554 S.W.3d
98, 124 (Tex. App.–El Paso 2018, pet. ref’d). The State has the burden, as beneficiary of the
error, to prove that the error is harmless beyond a reasonable doubt. Haggard v. State, 612
S.W.3d 318, 328 (Tex. Crim. App. 2020) (citing Deck v. Missouri, 544 U.S. 622, 635, 125 S. Ct.
2007, 2015, 161 L. Ed. 2d 953 (2005)). Thus, unlike nonconstitutional error under Rule 44.2(b),
the State is required to come forward with reasons why the appellate court should find
constitutional error harmless. See Lamb v. State, 603 S.W.3d 152, 162 n.16 (Tex. App.–
Texarkana 2020, no pet.); Merritt v. State, 982 S.W.2d 634, 636 (Tex. App.–Houston [1st Dist.]
1998, pet. ref’d, untimely filed).
In Lamb, the state did not brief the issue of whether constitutional error was harmful. See
Lamb, 603 S.W.3d at 162 n.16. The court noted that for it independently to review the evidence
in the conduct of harm analysis under Rule 42.2(a) when the state offered nothing to meet its
burden would undermine the notion that the state bore the burden of proof on the issue. See id.
(noting that “[Under Rule 44.2(a),] the ‘default’ is to reverse unless harmlessness is shown.
Thus, if neither party does anything, the case will be reversed. This requires the State to come
forward with reasons why the appellate court should find the error harmless”). The court further
opined that conducting a harm analysis in absence of the issue’s having been briefed by the state
improperly would place it in the position of being an advocate for the state. See id. (citing Meyer
v. State, 310 S.W.3d 24, 26 (Tex. App.–Texarkana 2010, no pet.) (“[T]his Court does not act on
behalf of the State. We do not, and cannot, create arguments for parties—we are neither the
appellant’s nor the appellee’s advocate”)). As a result, the court in Lamb declined to conduct an
independent constitutional harm analysis in the absence of any briefing by the state asserting
harmless error. See Lamb, 603 S.W.3d at 162 n.16.
7
Here, in its brief, the State argued only that the statements made during the prosecutor’s
jury argument were not improper or, alternatively, that the argument was invited. However, the
State declined to address, either in the alternative or in response to Appellant’s thorough briefing
on the issue of harm, why such error alleged by Appellant, who received the maximum sentence
under the law, is harmless. See id. Therefore, because the State bore the burden of proof and
made no attempt to meet its burden, we are left with the presumption that reversal of this
constitutional error is required. See Haggard, 612 S.W.3d at 328; Lamb, 603 S.W.3d at 162
n.16.; Merrit, 982 S.W.2d at 636; see also Morris, 554 S.W.3d at 124. Appellant’s first issue is
sustained. 5
DISPOSITION
Having sustained Appellant’s first issue, we reverse the trial court’s judgment and
remand the cause for a new trial on punishment.
BRIAN HOYLE
Justice
Opinion delivered October 21, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
5
Because we have sustained Appellant’s first issue, we do not consider his second issue regarding the trial
court’s overruling his objection to two exhibits admitted in his trial on punishment. See TEX. R. APP. P. 47.1.
8
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 21, 2022
NO. 12-21-00226-CR
MARCUS LAMONT ALLEN,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-1932-20)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that there was error
in judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that
the judgment be reversed and the cause remanded to the trial court for a new trial on
punishment in accordance with the opinion of this Court; and that this decision be certified to
the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.