Dennis Franklin Crayne v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-95-245-CR

&

No. 10-95-246-CR

DENNIS FRANKLIN CRAYNE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court Nos. 21511CR & 21512CR

O P I N I O N

A jury found Dennis Crayne guilty of sixteen counts of aggravated sexual assault and one count of indecency with a child. Tex. Penal Code Ann. 22.021, 21.11 (Vernon 1994 & Supp. 1996). The jury assessed punishment at ninety-nine years' imprisonment on each of the aggravated sexual assault counts, twenty years' imprisonment on the indecency with a child count, a $10,000 fine on one count of aggravated sexual assault, and a $10,000 fine on the indecency with a child conviction. By one point of error, Crayne claims reversible error resulted from the prosecution's jury argument. We affirm.

Crayne argues reversible error resulted when the prosecutor urged the jury to improperly consider danger to their own children in the event of a short prison sentence. The prosecutor made the contested statement during closing argument at the end of the punishment phase of the trial. The contested statement is:

Somebody said, okay, they're rehabilitated. That Dennis Crayne is rehabilitated. Are you going to believe it when he comes back to drive the school bus for your child, that he's been rehabilitated?

The court sustained Crayne's objection, but Crayne failed to request an instruction to disregard or move for a mistrial. Notwithstanding his failure to request an instruction to disregard and move for a mistrial, Crayne argues his complaint against this statement has not been waived because it constitutes fundamental error. See Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 908, 111 S. Ct. 279, 112 L. Ed. 2d 234 (1990). We will address the statement to determine: first, if the statement was improper; second, if improper, whether the error was fundamental; and third, if fundamental, whether the error was reversible. Campbell v. State, 900 S.W.2d 763, 766 (Tex. App. Waco 1995, no pet.).

I. Whether the Statement was Improper

Proper jury argument by the State consists of four permissible areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answers to arguments from the defense; and (4) pleas for law enforcement. Willis, 785 S.W.2d at 384. The State argues that the prosecutor's statement answered the following argument by Crayne:

Rehabilitation. Basically, I don't know how each of you feels, but the evidence is in the case that rehabilitation has been profitable for these children and for him. When he had the opportunity to do it, before he was incarcerated, he took advantage of it for himself. No question that rehabilitation can work.

We cannot agree with the State's theory. The State may properly make jury arguments in response to and invited by the argument of counsel for the defense. Miller v. State, 479 S.W.2d 670, 672 (Tex. Crim. App. 1972). In this case, Crayne argued that rehabilitation can work. The State, in its argument, responded to Crayne's rehabilitation argument as follows:

If he had wanted some rehabilitation the first time, he could have immediately said, I've got a problem. . . . No, he didn't do that. The time has passed. Rehabilitation is uncertain.

This response fell within the permissible area of jury argument. The prosecution's statement at issue, however, went beyond argument in response to and invited by Crayne's argument because it asked the jury to evaluate the probability of successful rehabilitation at the peril of their own children's safety. See Hall v. State, 153 Tex. Crim. 215, 219 S.W.2d 475, 480-81 (Tex. Crim. App. 1949). This exceeded the permissible bounds of proper jury argument. See id. Having concluded that the State's argument was improper, we will now determine whether the error was fundamental.

II. Whether the Error was Fundamental

As a general rule, to preserve a complaint regarding jury argument for appellate review, the defendant must (1) make an objection; (2) request an instruction to disregard; and (3) make a motion for a mistrial. Tex. R. App. P. 52(a); Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). By exception to the general rule, however, jury argument complaints will not be waived for failure to satisfy Rule 52(a) where the argument is manifestly improper, violates some mandatory statute, or injects some new fact harmful to the defendant's case. Willis, 785 S.W.2d at 385.

We first observe that the prosecutor's statement did not violate any mandatory statute or inject any harmful new fact into the case. Crayne argues that the prosecutor's statement violates Section 3(a) of Article 37.07 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.07, 3(a) (Vernon Supp. 1996). We reject this contention because the State's argument does not refer to any of Crayne's prior criminal activity. Id. Furthermore, the prosecutor's proposition that Crayne may be a future school bus driver does not constitute a fact that we find harmful to Crayne's case. See Willis, 785 S.W.2d at 385. We now turn to whether the statement at issue was manifestly improper.

To determine whether the prosecutor's jury argument was manifestly improper, the statement's probable effect on the jury must be weighed. Mathews v. State, 635 S.W.2d 532, 540 (Tex. Crim. App. [Panel Op.] 1982). The remarks must not only be improper, but they must be of such a nature as would be clearly calculated to prejudice the rights of the defendant. Id. We conclude that the prosecutor's statement at issue was not sufficiently vicious or inflammatory that the defendant's rights were prejudicially affected. Id.; see also Hall, 219 S.W.2d at 480-81 (holding the prosecutor's argument that "you men on this jury may be the next victim of an attack like Mr. Hall made on Lee, and in arriving at your verdict, you must consider the fact that you may be the next victim" was not manifestly improper).

Because we conclude that the prosecutor's argument was not manifestly improper, Crayne's failure to request an instruction to disregard and move for a mistrial waived his complaint against the prosecutor's argument. Duran v. State, 505 S.W.2d 863, 866 (Tex. Crim. App. 1974); Brown v. State, 757 S.W.2d 828, 830 (Tex. App. Waco 1988, pet. ref'd). Having concluded that the jury argument error was not fundamental, it logically follows that the error was not reversible. Crayne's sole point of error is overruled.

Finding no reversible error, we affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 30, 1996

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