Jerry Spencer v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00352-CR
Jerry SPENCER,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-6586
Honorable Pat Priest, Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: October 24, 2007

 

AFFIRMED

On March 27, 2006, Jerry Spencer was tried by a jury and found guilty of aggravated sexual assault of a child and two counts of indecency with a child by sexual contact. He was sentenced to forty years of confinement in the Institutional Division of the Texas Department of Criminal Justice for the aggravated sexual assault of a child, and to twenty years of confinement on each count of indecency with a child, to run concurrently. He now appeals his conviction, arguing that during closing argument, the prosecutor improperly commented upon his failure to testify. We affirm the judgment of the trial court.

Factual Background

In 2004, L. M., a six-year-old child, made an outcry statement to her babysitter, Crystal Boykin, that Jerry Spencer, the man whom she considered her father, had touched her. Initially, Crystal "blew it off," but a few weeks later, L.M. repeated her statements, this time describing the abuse with greater specificity. Crystal called L.M.'s aunt Tiffany, who contacted the police. Eventually, Child Protective Services (CPS) became involved, to whom Jerry Spencer provided the following statement:

I, Jerry Spencer, Jr., am writing this response to al[le]gations of sexual abuse to my daughter, [L.M.] She has said something that I can't for the life of me remember doing to her[.] Maybe there is a misunderstanding or maybe [I] was too intoxicated to remember[.] I know that I love [L.M.] and would not intentionally do anything to hurt her in any way[.] And if I did, I am very sorry, and I am in need of some professional help[.] I would do anything to be able to see and be around my kids again!

 

Spencer was arrested and charged with four counts of aggravated sexual assault of a child and four counts of indecency with a child. The trial court granted the defense's motion for a directed verdict on two counts. The jury found Spencer guilty on three of the remaining six counts. Analysis

Spencer argues that the following statement by the prosecutor was an impermissible comment on his failure to testify:

Doesn't it - - wouldn't it make sense that the defendant knows himself better than anybody?

And wouldn't it make sense that he would know whether or not he did it to that child?

 

He would - he knows himself. If he really didn't do it, he would have said, I didn't do it. I did not do it. I am insulted that you would take - - take this against me and believe that I would hurt someone, somebody that I love.

 

A comment on a defendant's failure to testify violates the defendant's constitutional right against self-incrimination. See U.S. Const. art. V; Tex. Const. art. I, 10. In determining whether the State made an impermissible comment, we view the statement "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). "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," taking into account the context in which the comment was made. Id. "It is not sufficient that the language might be construed as an implied or indirect allusion." Id.

Before an appellate court can review improper jury argument, the error must be properly preserved. To preserve error on appeal for improper jury argument, the defendant must object to the comment and pursue the objection until the trial court rules adversely. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). If the objection to the argument is sustained, the defendant must request an instruction for the jury to disregard and move for a mistrial. See Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993).

Defense counsel objected to the alleged improper comments, but the record does not show that the trial court ruled on the objection. However, even assuming that Spencer's complaints had been properly preserved, the prosecutor's statements were not necessarily a comment on the defendant's failure to testify. During the defense's closing arguments, defense counsel stated:

He denied the abuse. And I do want you to look at the written statement. And if you read it, which you will get in the back, if you read it in its entirety, you will see that he is not admitting to this. He is denying it in the written statement.

 

The State's rebuttal arguments followed, stating in relevant part:

And then - - after you do all that and then you take a look at his statement.

 

He says "I can't for the life of me remember doing it to her. Maybe there is a misunderstanding or maybe I was too intoxicated to remember."

 

"I don't remember doing it. Maybe I was too drunk to remember."

 

Does that sound like a denial to you, that statement?

 

Counsel told you he denied it. In this statement he doesn't deny it.

 

If he denied it, he would have said, No, I didn't do that. I don't do that to people I love. I don't do that to little girls. I don't do that - - I didn't do that to [L.M.]

 

He didn't deny it.

 

And the strange thing is that counsel - - defense counsel wants you to believe, Look, Jennifer knows [L.M.] better than anybody, she doesn't believe [L.M.]. Jennifer doesn't believe her. She knows her better than anybody.

 

Doesn't it - - wouldn't it make sense that the defendant knows himself better than anybody?

 

And wouldn't it make sense that he would know whether or not he did it to that child?

 

He would - - he knows himself. If he really didn't do it, he would have said, I didn't do it. I did not do it. I am insulted that you would take - - take this against me and believe that I would hurt someone, somebody that I love.

Here, we must take the prosecutor's comments in context. Bustamante, 48 S.W.3d at 765. Based on the context of the prosecutor's comments, it is reasonable to conclude that the prosecutor was not referring to the defendant's failure to testify, but rather responding to the defense's closing argument in which defense counsel alleged that the defendant "denied the abuse" in his written statement. Moreover, after defense counsel objected, the State's attorney clarified that the comment was referring to the statement the defendant made to the CPS caseworker. Thus, when viewed from the perspective of the jury, we are unable to conclude that the language was manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. Accordingly, we overrule Spencer's single point of error.

Conclusion

We are unable to conclude that the State made an impermissible comment on Spencer's failure to testify. As a result, we affirm the judgment of the trial court.

 

Rebecca Simmons, Justice

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