Allan Ray Haggerty v. The State of Texas--Appeal from 6th District Court of Lamar County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00022-CR
______________________________
ALLAN RAY HAGGERTY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 20559
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

During its rebuttal closing jury argument in the trial of Allan Ray Haggerty for driving while intoxicated, third offense, the State argued the following:

What kind of community do you want to live in? . . . I prosecuted cases for eight years in Tarrant County before I came here . . . . I would love to tell you that I will never speak to another grieving widow, mother of a child . . . that has been the victim of a drunk driver. I would love to. But that's not going to happen.

 

And, responding to Haggerty's closing argument that no evidence showed Haggerty swerved his vehicle or demonstrated his lack of control of the vehicle, (1)

the State then argued the following:

Thank God that this guy did not do that. Because had he done so, . . . not only would he have endangered more lives but chances were y'all would have seen a mother up here talking about the last time she saw her child.

 

Haggerty's objections to both of the above arguments were overruled by the trial court. The jury found Haggerty guilty, and the trial court, on Haggerty's election, assessed punishment at six years' confinement. In two points of error, Haggerty asserts that the State was improperly allowed to make inflammatory jury arguments that conjured up images of imaginary victims. We affirm the judgment of the trial court because (1) the "what kind of community" argument was not improper, and (2) the "endangered more lives" argument was not harmful.

(1) The "What Kind of Community" Argument Was Not Improper

There are four proper areas of jury argument: (1) summation of the evidence presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the opposing counsel's argument; or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). The State "is clearly prohibited from making reference during final argument to extraneous offenses for which the accused is not currently on trial." Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990). Moreover, the State may not make jury argument "that would lead the jury to speculate on extraneous offenses or other matters that are not in evidence." Monkhouse v. State, 861 S.W.2d 473, 478 (Tex. App.--Texarkana 1993, no pet.).

In his first point of error, Haggerty asserts that the State's "what kind of community" argument was improper in that it attributed to Haggerty hypothetical victims and imaginary and extraneous crimes. (2)

We do not see, and Haggerty fails to explain, how the challenged argument attributes any extraneous victims or crimes to Haggerty. The State's argument certainly asks the jury to consider images of victims of DWI, but that in itself is not objectionable. A proper plea for law enforcement permits the State to argue the impact and effect of the jury's verdict on the community. See Borjan, 787 S.W.2d at 55-56. This may include, generally, invocation of victims of this type of crime. See id. at 57-58. The language used here references the State's experience with the impact of these crimes in the most general terms. (3) We fail to see where the State implicates Haggerty's culpability for these community victims' grief. The point of error is overruled.

 

(2) The "Endangered More Lives" Argument Was Not Harmful

Haggerty's second point of error challenges the other argument, what we are calling the "endangered more lives" argument.

The State contends that, in context, the second argument was a proper answer to Haggerty's closing argument. We disagree with this conclusion. While Haggerty's counsel argued that Haggerty had not exhibited various indicators of intoxication, that argument stayed entirely within the bounds of the evidence in the record. The State's reply--that, if Haggerty had swerved, or done other acts that would indicate intoxication, Haggerty would have endangered others and possibly killed a child--goes, by its own terms, outside the record. When defense counsel's argument is not outside the record, the State may not go outside the record in reply. See Walker v. State, 664 S.W.2d 338, 340-41 (Tex. Crim. App. 1984). Thus, the State's argument was not permissible as an answer to opposing counsel's argument.

We are left to consider whether the argument impermissibly attributed extraneous crimes to Haggerty or was a permissible plea for law enforcement. The State notes in its brief that it did not "expressly accuse Appellant of having killed anyone . . . ." We agree that this complained-of portion of argument, like the first complained-of argument, does not attribute the deaths of the hypothetical children to Haggerty. For the reasons given earlier, the State committed no error in invoking future imaginary victims as a plea to the jury to enforce the crime of DWI.

However, in this second portion of argument, the State did not merely urge conviction in order to deter this type of crime. The State also argued that Haggerty could have "endangered more lives," although the record contained no facts of Haggerty having endangered anyone. (4)

During the guilt/innocence phase of trial, the State may not try to persuade the jury that this defendant is responsible for more than just the offense alleged in the instant indictment and to convict him or her on that basis. Borjan, 787 S.W.2d at 56-57; Melton v. State, 713 S.W.2d 107, 114 (Tex. Crim. App. 1986); Lewis v. State, 191 S.W.3d 335, 339 (Tex. App.--Waco 2006, pet. ref'd). During the State's argument, the reference to endangering "more lives" raised the inference, and invited the jury to speculate, that there was at least some life endangered by Haggerty on the night in question or at other times about which the jury had simply not heard evidence. Accordingly, the State's argument was improper, and overruling the objection thereto was error.

Having determined that the State's comment was not permissible argument, we must determine whether the error warrants reversal. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g). Improper jury argument is generally error of nonconstitutional dimension. Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000); Mosley, 983 S.W.2d at 259. The parties agree that the nonconstitutional harm analysis applies here, in which the error must be disregarded if it does not "affect the defendant's substantial rights." See Tex. R. App. P. 44.2(b); Hall v. State, 13 S.W.3d 115, 119 (Tex. App.--Fort Worth 2000, pet. ref'd); Coggeshall v. State, 961 S.W.2d 639, 643 (Tex. App.--Fort Worth 1998, pet. ref'd) (en banc). An error affects a substantial right of the defendant when the error has a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A criminal conviction will not be reversed for nonconstitutional error if the appellate court, after examining the record as a whole, "has fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see also Tex. R. App. P. 44.2(b); Mosley, 983 S.W.2d at 260.

In our Rule 44.2(b) harm analysis from improper jury argument, we weigh three factors in determining the harm to a defendant's substantial rights: (1) severity of the misconduct (the magnitude of the prejudicial effect of the State's remarks); (2) curative measures taken (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (strength of evidence supporting conviction). Mosley, 983 S.W.2d at 259 (citing United States v. Millar, 79 F.3d 338, 343 (2nd Cir. 1996), and United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994)).

Looking at the first of these three factors, we find that the State's reference to endangering "more lives," in the context of the full argument and this trial, was only mildly prejudicial. See Mosley, 983 S.W.2d at 260 (finding an indirect accusation to be mild prejudice, but implying that injecting new facts would be highly prejudicial). The improper argument was a very small section (only three words) of the larger closing argument, most of which made a proper plea for law enforcement in general (though arguably inflammatory) terms. While the State alluded to Haggerty's extraneous bad acts, the accusation of endangerment of others was indirect and not elaborated on.

Moreover, the State, on defense counsel's objection that "none of this has occurred," replied, in front of the jury, that that was "exactly the point." In other words, though the State did err in its choice of three words ("endangered more lives"), the prosecutor immediately told the jury of an apparent intent to speak in hypothetical terms. This renders the improper argument less harmful. See Martinez, 17 S.W.3d at 693; see also Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004) ("Although a prosecutor's self-corrective action might not carry the same weight as a trial court's instruction to disregard, it is nevertheless a relevant consideration in determining harm and can, in the appropriate circumstances, render an improper comment harmless."). "To the extent that the prosecutor conveyed facts outside the record, such facts had no tendency to adversely influence the jury against appellant beyond the influence exerted by a wholly legitimate plea for law enforcement." Martinez, 17 S.W.3d at 693. Thus, the slight degree of prejudice under this first factor favors a finding of harmless error.

We find that the second factor in the harm analysis weighs slightly in Haggerty's favor. The trial court made no effort to cure the error; indeed, the court overruled Haggerty's objection, after which the State re-emphasized the argument. A trial court magnifies the possibility for harm when it overrules an objection to an improper argument, thus putting "the stamp of judicial approval" on the improper argument. Good v. State, 723 S.W.2d 734, 738 (Tex. Crim. App. 1986). Yet the State's clarification, in front of the jury, of its apparent intent to speak hypothetically, though not eliminating the error, minimizes the harm of the error. See Hawkins, 135 S.W.3d at 84.

The final factor requires that we consider the error in light of the strength of the evidence in support of the conviction (or, the certainty of conviction absent the misconduct). Haggerty's defense tactic was to dispute that he had been intoxicated.

The State presented two state troopers as witnesses. The arresting officer, Trooper Greg Wilson, testified that, after pulling Haggerty over for speeding, he smelled alcohol on Haggerty's breath and noticed that Haggerty's eyes were red and watery. Wilson testified that a portable breath test administered at the scene indicated the presence of alcohol in Haggerty's system. Wilson also testified that Haggerty exhibited HGN at maximum deviation in a field sobriety test. Wilson testified that he believed Haggerty exhibited loss of normal mental and physical faculties due to his repeated failure to follow directions on three separate field sobriety tests. Wilson testified that, in his opinion, Haggerty was intoxicated. Through Wilson, the State published to the jury the in-car videotape of the field sobriety tests and arrest and a videotape showing the jury what HGN looks like.

The State also presented Trooper Patrick Heintz as an expert witness on the reliability and indications of field sobriety tests. Heintz testified to the accuracy of the HGN test, and the likelihood of Haggerty's intoxication given the facts in evidence. Heintz gave his opinion that, based on Wilson's report, his viewing of the in-car videotape, and his prior knowledge of Haggerty, that Haggerty was intoxicated. Finally, we note that the jury could have considered as evidence Haggerty's refusal to submit to a formal breath test.

The defense rested without putting on any witnesses. Nonetheless, we recognize that Wilson testified that Haggerty denied the use of alcohol. Wilson also admitted that Haggerty had pulled over promptly and been polite and compliant. Finally, we note that, while the officers testified to the possibility of intoxication from Haggerty's failure to fully follow directions on the field sobriety tests, neither officer expressly stated that Haggerty had failed either the walk-and-turn or the one-leg-stand field sobriety tests.

We find that, though not guaranteeing conviction, the State's evidence in support of conviction was strong. Thus, the strength of the evidence in support of conviction, notwithstanding the State's improper argument, weighs in the State's favor on the third factor.

After examining the record as a whole, we find that there is fair assurance that the State's improper jury argument did not influence the jury, or had but a slight effect. The error was harmless, and the point of error is overruled.

 

We affirm the judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: December 4, 2006

Date Decided: February 9, 2007

 

Do Not Publish

1. In the opening portion of its closing argument, the State made the assertion that the horizontal gaze nystagmus (HGN) field sobriety test starts the presumption of Haggerty's intoxication at eighty-eight percent, to which the jury should add various percentages for the other evidence of intoxication offered at trial. The State concluded it met the reasonable doubt standard, since when the jury "[p]ut all these together, look at our percentages we talked about earlier, looks like a good 100 percent doesn't it?"

In response, Haggerty's closing argument began by assailing the State's assessment that Haggerty was 100 percent guilty of intoxication. Defense counsel suggested to the jury that it subtract percentages for evidence of sobriety adduced in the evidence, including the fact that Haggerty pulled over properly and did not swerve while driving. Defense counsel concluded that the State's position "is some arbitrary number that they presented in front of you as proof of Mr. Haggerty's guilt." The defense then encouraged the jury to view the in-car videotape of the traffic stop, field sobriety tests, and arrest, and note that Haggerty did not appear intoxicated. Defense counsel stated, "If you need to watch it 100 times, watch it 100 times. Nitpick everything. He did an excellent job. Okay. He did everything that the trooper asked him to do . . . . Use your common sense. View the tape. View the evidence you have in front of you. This man was not intoxicated that night."

2. Haggerty does not claim error in other inferences from the complained-of argument, e.g., that, if not found guilty, Haggerty would again drive while intoxicated, or that Haggerty is an alcoholic who will again drive intoxicated. While Haggerty cites cases to this Court reversing convictions for improper arguments raising those implications, he does not actually claim that the State made those inferences in this case. If a point of error is inadequately briefed, we will not address it. Vuong v. State, 830 S.W.2d 929 (Tex. Crim. App. 1992). We will not brief a defendant's case for him. Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995). We thus look only to whether: (a) the State's argument did attribute to Haggerty hypothetical victims and imaginary and extraneous crimes; and (b) such attribution is improper jury argument.

3. We note that Haggerty does not complain that the State testified to facts outside the record in regard to his own career arc.

4. The record shows that the closest testimony to endangerment comes from the State's examination of two state troopers who both testified that Haggerty's speed was unsafe. The arresting officer was asked if speeding on a wet road was dangerous, but replied that danger would depend on the condition of the tires and the ability to drive. The prosecutor stopped short of eliciting testimony that Haggerty's driving was itself dangerous or that Haggerty had endangered anyone.