Dyer, Ronald Columbus v. The State of Texas--Appeal from 182nd District Court of Harris County

Affirmed and Opinion filed July 25, 2002

Affirmed and Opinion filed  July 25, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00958-CR

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RONALD COLUMBUS DYER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 866,587

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O P I N I O N

Ronald Dyer appeals his conviction and ten-year sentence for burglary. In four issues, appellant contends the prosecutors engaged in improper jury argument, struck at him over his counsel s shoulder, and commented on his failure to testify. We affirm.

I. Jury Argument

A. Length of punishment for past crimes

Appellant s four issues concern the State s conduct during the sentencing phase of trial. The State offered evidence showing appellant had eight prior convictions. For his five

prior misdemeanor convictions, appellant had received sentences ranging from seventeen to sixty days in the Harris County Jail. For his three prior felony convictions, appellant had received six, eight, and ten months in prison. The eight-month sentence involved the sale of cocaine.

In his first issue, appellant contends the trial court erred in overruling his request for a mistrial after the State gave the following jury argument:

Prosecutor: In October of 1999, State s Exhibit No. 9 shows his conviction for delivery by actual transfer of cocaine, weighing less than 1 gram, again he got a little mercy, eight months in state jail. A lot less than the 2 years he could have gotten day for day time.

Defense: Judge, I object to that statement, it s outside the record.

Court: Sustained.

Defense: Ask for a jury instruction.

Court: The Jury is instructed to disregard the last comment made by the prosecutor.

Defense: Move for a mistrial.

Court: Overruled.

Appellant contends that the italicized portion of the excerpt above was outside the record and thus violated his right to due process of law. Because no evidence was presented regarding the length of punishment appellant could have received for his past crime, we agree. The prosecutor may not use argument to offer evidence to the jury that is outside the record. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). Jury argument is permissible if it: (1) summarizes evidence; (2) is a reasonable deduction from the evidence; (3) answers arguments of opposing counsel; or (4) is a plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). However, even when an argument exceeds the permissible bounds of these approved areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of 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. In most instances, an instruction to disregard the remarks will cure the error. Id.

Here, the prosecutor s comment that appellant received less than the maximum sentence he could have received for cocaine delivery was quickly followed by an instruction to disregard from the trial court. Texas law requires that we presume the instruction was complied with by the jury unless the error was so flagrant that the instruction cannot have been effective. See Waldo v. State, 746 S.W.2d 750, 752, 754 (Tex. Crim. App. 1988). Appellant identifies no evidence on appeal to defeat the presumption. The error here is not of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Id. at 752 53 & n.3. The trial court therefore did not err in refusing to grant appellant s request for a mistrial. Sanders v. State, 25 S.W.3d 854, 858 (Tex. App. Houston [14th Dist.] 2000, no pet.) (citing Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996)). We overrule appellant s first issue.

 B. He got the minimum for his past crimes

In his third issue, appellant alleges the trial court erred in overruling his request for a mistrial after the prosecutor argued:

Defense counsel brought up the issue about his prior convictions and how every other time he stepped up to the plate, he took the hit. How many times do you go and give somebody a chance? As you heard [another prosecutor] mention in the other instances, he got the minimum. [italics added]

In addition to describing the (arguably) non-confrontational nature of the charged offense, defense counsel had requested leniency because appellant s prior convictions were non-violent.[1] The defense argued that one of appellant s prior offenses was minor, in part, because he only received a 90-day jail sentence:

I think that in determining the punishment in this case there s two major things for you to look at, one is the facts of the case, is this an aggravated type of case, a mild type of a burglary case or something in between. The convictions on the part of the defendant, number two, his background, are they the most aggravated kinds of convictions, mild convictions, something in between. I think you should look at them . . . .

The prosecutor yesterday on cross examination through the prosecutor s questions, it was a good idea to do that, drew your attention to the misdemeanor resisting arrest conviction and I want to talk about that a moment. It s a resisting arrest conviction, a misdemeanor, I think he got 90 days in jail for it, maybe, I am not sure. It wasn t an assault on a police officer, that s a different offense . . . .

According to the defense, appellant deserved leniency because his prior crimes had been minor and he had paid his dues to society for those crimes. Here, the prosecutor s statement that appellant got the minimum for his prior crimes responded to the defensive request and was therefore proper. See Wesbrook, 29 S.W.3d at 115 (argument responding to defense s argument one of four permissible areas). Because the argument was proper, the trial court did not err in denying appellant s request for a mistrial. We overrule appellant s third issue.

II. Striking over shoulders of counsel Issue Two

In his second issue, appellant argues that the prosecutor struck at him over his counsel s shoulder by objecting to jury argument made by his counsel. The exchange at issue is:

Defense: When you think about the offense itself, I can hardly think of a less serious burglary. Burglary is serious, it s a felony offense, I am not making light of it. A burglary of somebody s home is a very serious offense, but there are burglaries and there are burglaries. The kind of people that commit burglaries can do, as you know, unspeakable things to the people in that house and their wives and their children.

Prosecutor: Your Honor, I object, it s a different range of punishment, it s outside the record.

Defense: I object to that statement, Your Honor.

Court: I will sustain his objection.

Defense: I object to the statement of the prosecutor as being argument at an improper time and attacking the defendant over the shoulder of counsel.

Court: His objection was sustained. Move along. Your objection is overruled.

The prosecutor did not, by way of objection, attack the defendant over counsel s shoulder. Rather, the prosecutor s objection was timely and proper.[2] We overrule appellant s third issue.

II. Comment on appellant s failure to testify

Appellant s fourth issue is a contention that the prosecutor commented on his failure to testify. The trial court overruled appellant s objection to the following argument given by the State:

Because they want 2 years, 6 years, they want something small and as defense counsel said, and I expect defense counsel to come over here and ask on behalf of his client, please give him mercy. Come on, that s expected, so that s no big surprise. Don t hold it against him. But the issue over here is, what did his client do? [italics added]

To violate a defendant s right against self-incrimination, the offending language must be viewed from the jury s standpoint and the implication that the comment referred to the defendant s failure to testify must be clear. 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. Id. The 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. Id. (citing Griffin v. California, 380 U.S. 609, 613 14 (1965)).

In applying this standard, the context in which the comment was made is important. Id. Here, context demonstrates that the italicized remark urged the jury to reject appellant s request for leniency and focus on the facts of his crime. Reference to appellant s silence is indirect if not wholly improbable. We overrule appellant s fourth and final issue.

Accordingly, the judgment of the trial court is affirmed.

/s/ Eva Guzman

Justice

Judgment rendered and Opinion filed July 25, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] Among other things, counsel noted that appellant had attempted to flee, not fight, after the complainant returned home.

[2] Burglary of a habitation with intent to commit theft is a second-degree felony. Tex. Pen. Code. 30.02(c)(2). Burglary of a habitation with intent to commit a felony other than theft is a first-degree felony. Id. 30.02(d).