Brandon Gibbs v. the State of Texas

Affirmed and Memorandum Opinion filed December 5, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00510-CR
BRANDON GIBBS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Tarrant County, Texas
Trial Court Cause No. 1732158R
MEMORANDUM OPINION
Appellant Brandon Gibbs was charged with committing the offenses of
family violence assault by occlusion and family violence assault causing bodily
injury. The indictment also contained a habitual offender notice. A jury found
appellant guilty of both counts, and the trial court assessed his punishment at 40
years in prison for each offense, with the sentences to run concurrently. In a single
issue on appeal, appellant contends that the trial court erred in overruling his
objection to the prosecutor’s statement in closing remarks, which appellant asserts
commented on appellant’s decision to not testify. We affirm.1
Background
Complainant testified that she and appellant were involved in a romantic
relationship. On December 18, 2018, she was at appellant’s house while appellant
was having a dispute with one of his roommates. She decided to leave, and
appellant accused her of leaving to be with another man. Complainant got in her
car, and appellant got in the car as well, ostensibly to give her a hug. According to
complainant, appellant then grabbed her neck with one hand while punching her in
the face with his other hand. She said she “felt the blood splatter” inside her car.
Breaking free from his grasp, complainant ran inside the house because she knew
that appellant’s roommate was in the house. Appellant “cornered” complainant in a
bathroom and put her in a chokehold. Eventually, she was able to break free again,
and she ran back to her car and drove away.
Complainant stated that she was trying to drive to a hospital when she was
pulled over by a police officer. At that point, complainant said that her face was
swollen, “[t]here was blood all down the front of her shirt,” her “teeth had been
slightly knocked out of place,” she had marks on her neck, and blood was
“splattered inside her vehicle.” She explained to the officer what had happened.
Complainant also acknowledged in her testimony that she was on felony probation
for fraudulent possession of a prescription and tampering with a government
license and she had also been convicted of tampering with a government record,
forgery, and credit card abuse.
Officer Wechsler testified that on December 18, 2018, he stopped
1
This case was transferred to our court by the Second Court of Appeals pursuant to a
Texas Supreme Court transfer order. We must therefore decide the case in accordance with the
precedent of the Second Court of Appeals if our decisions otherwise would have been
inconsistent with that court’s precedent. See Tex. R. App. P. 41.3.
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complainant for speeding. According to Wechsler, immediately after complainant
stopped her vehicle, she “kind of stumbled out of the vehicle and almost doubled
over.” She seemed very upset and was crying and stumbling over her words. She
appeared to have injuries to her face, and there was blood on her shirt.
Complainant told Wechsler that she had been at someone’s house that she had met
recently and when she tried to leave, “she began getting hit in the head.” Wechsler
became concerned about complainant’s medical well-being. Although complainant
declined Wechsler’s offer to call EMS, he did so anyway. Complainant
acknowledged speeding and said that she was headed to the hospital “just up the
street.” Complainant also informed Wechsler that her driver’s license had been
suspended, but Wechsler said that he was unconcerned about that at the time
because the possible assault was a higher priority. The jury was also shown a video
of complainant’s interactions with Wechsler taken from Wechsler’s patrol vehicle.
On cross-examination, Wechsler acknowledged that driving with a suspended
license is an arrestable offense.
During closing argument, defense counsel argued that complainant
manufactured the assault in order to avoid having Wechsler search her vehicle
when he pulled her over for speeding. Counsel asserted, “She’s a fraud, she’s a
thief and she’s a liar.” Counsel further explained that “they want you to believe
that I’m calling her a liar to get out of a traffic ticket. Okay? Far from the truth.”
Counsel pointed out that at the time she was stopped by Wechsler, complainant
was on probation for fraudulent possession of a controlled substance and was
driving without a license, and Wechsler could have arrested her for the license
offense and inventoried her vehicle. Counsel suggested complainant lied about the
alleged assault by appellant to distract Wechsler and keep him from searching her
vehicle and potentially finding drugs. Counsel additionally asserted that although
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complainant claimed to Wechsler that she was speeding toward the hospital, she
subsequently declined to be transported to the hospital by EMS and, indeed, failed
to continue to the hospital after being stopped.
In her closing argument, the prosecutor stated in relevant part as follows:
Now, I’m trying to unpack what the Defense wants you to believe,
right? Because they want you to leave your common sense at that
door. Because what is it? Where did the injuries come from? Right?
Where did they come from? Because she gets pulled over. She’s
sobbing hysterically. Listen to it, please. Ask for that video and listen
to it again. She’s crying. She’s immediately gesturing to her face.
There is blood on her. There’s a lump on her head. And what does she
tell the officer? I’ve been assaulted. What’s the theory? She did that to
herself? She rearranged her own teeth to the point that they’re still
messed up to get out of a ticket? . . . Give me a break. She makes
herself bleed on her car to get out of a ticket that no one’s talked to
her about? She volunteers that information [about her license being
suspended], right? The officer told you, I didn’t have to ask her. She
told me.
Where did those injuries come from? Do you think she did those to
herself as she pulls over for 30 seconds to get out of a ticket? No. No.
Listen to her on that audio. Look at these injuries and ask yourself,
where did they come from. Because the Defense hasn’t given you an
answer, right? They want you to believe that this is a mistake.
(Emphasis added.) At this point, defense counsel lodged an objection, which the
trial court overruled.2 On appeal, appellant contends that the prosecutor’s
argument, particularly the penultimate sentence of the above excerpt, improperly
commented on his decision not to testify.
2
The State initially asserts that appellant failed to preserve his issue in the trial court, but
defense counsel’s objection citing the Fifth Amendment was sufficient under the circumstances
to apprise the trial court of the complaint being made. See generally Tex. R. App. P. 33.1(a);
Dreyer v. State, 309 S.W.3d 751, 754 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
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Discussion
The four areas of permissible jury argument are (1) summations of the
evidence, (2) reasonable deductions from the evidence, (3) responses to the
defendant’s argument, and (4) pleas for law enforcement. Rocha v. State, 16
S.W.3d 1, 21 (Tex. Crim. App. 2000). A comment by a prosecutor during closing
that refers to a defendant’s failure to testify violates the privilege against self-
incrimination. Canales v. State, 98 S.W.3d 690, 695 (Tex. Crim. App. 2003)
(citing U.S. Const. amend. V).3 To violate a defendant’s rights, the comment “must
clearly refer to the accused’s failure to testify.” Id. An indirect or implied reference
to a defendant’s failure to testify does not violate the defendant’s privilege against
self-incrimination. Id.; see also Bustamante v. State, 48 S.W.3d 761, 765 (Tex.
Crim. App. 2001) (“It is not sufficient that the language might be construed as an
implied or indirect allusion.”). Rather, “[t]he test is whether the language used was
manifestly intended or was of such a character that the jury would necessarily and
naturally take it as a comment on the defendant’s failure to testify.” Canales, 98
S.W.3d at 695. In applying this standard, a reviewing court should consider the
context in which the comment was made. Id.A prosecutor is entitled to comment on a defendant’s failure to produce
testimony from sources other than himself when it is relevant to a disputed issue.
Harris v. State, 122 S.W.3d 871, 884 (Tex. App.—Fort Worth 2003, pet. ref’d). A
prosecutor may comment on the defendant’s failure to produce witnesses and
evidence so long as the remark does not fault the defendant for exercising his right
not to testify. Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000).
3
Texas Code of Criminal Procedure 38.08 also protects the right to remain silent;
however, appellant did not preserve any argument below and does not make any argument on
appeal based on that article. Tex. Code Crim. Proc. art. 38.08.
5
As mentioned, appellant contends that the prosecutor’s remarks—especially
the sentence, “Because the Defense hasn’t given you an answer, right?”—
constituted a comment on his decision not to testify. Appellant argues that
asserting the defense had no answer regarding the source of the injuries called
attention to the absence of evidence that only the defendant could supply, because,
according to complainant, she and appellant were the only witnesses to the alleged
assault.
We disagree with appellant’s interpretation of the prosecutor’s words and
the context in which they were used. The cited language is not a clear reference to
appellant’s failure to testify but instead appears to be part of a response to defense
counsel’s argument that complainant had somehow fabricated or caused her own
injuries in order to avoid a search of her vehicle when she was pulled over for
speeding and was driving without a valid license. The prosecutor appears to be
suggesting that it made no sense that complainant would cause herself to splatter
blood in her own car and loosen her own teeth in order to avoid a search and that
the defense’s explanation for the injuries was really no answer at all to the question
of how she got injured. The comment challenges defense counsel’s hypothesis; it
does not comment on appellant’s decision not to testify or call attention to the
absence of evidence that only appellant could provide.
The prosecutor’s statement certainly was not a direct comment on the
absence of testimony by appellant, and given the context in which the statement
occurred, we do not believe that it was manifestly intended or was of such
character that the jury would necessarily and naturally take it as a comment on the
accused’s failure to testify. See Canales, 98 S.W.3d at 695 (holding, given the
context in which it was made, prosecutor’s comment was a response to defense
counsel’s argument and not a reference to defendant’s failure to testify); Ochoa v.
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State, No. 02-21-00174-CR, 2023 WL 4630637, at *13 (Tex. App.—Fort Worth
July 20, 2023, no pet.) (holding prosecutor’s comment that the defendant “knows
he’s guilty of this” was a response to defense that the case had not been properly
investigated and was a comment on the evidence in the case, including the
evidence that the defendant had confessed). Accordingly, we overrule appellant’s
sole issue.
We affirm the trial court’s judgment.
/s/ Frances Bourliot
Justice
Panel consists of Justices Wise, Bourliot, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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