Farid Bastani v. The State of Texas--Appeal from 264th District Court of Bell County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
ON REMAND
NO. 3-90-092-CR
FARID BASTANI,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 38,262, HONORABLE JOE CARROLL, JUDGE PRESIDING

Appellant, Farid Bastani, was convicted in district court of aggravated sexual assault of a child. Tex. Penal Code Ann. 22.021 (1989). Punishment was assessed by the jury at ten years' imprisonment in the Texas Department of Criminal Justice, Institutional Division.

On appeal to this Court, we held in an unpublished opinion that the final argument of the prosecution constituted an improper, indirect comment on appellant's failure to testify at the trial. (1) However, we also held that the instructions and actions of the trial court rendered the error harmless, thus affirming the district court judgment of conviction. The Court of Criminal Appeals granted appellant's petition for discretionary review and in an unpublished opinion concluded that we had conducted an improper harm analysis. (2) That Court reversed and remanded the cause to us for a complete harm analysis pursuant to Tex. R. App. P. Ann. 81(b)(2) (Pamph. 1992). We will recite the factual background of this case in order to place the harm analysis in context.

Appellant was convicted of the aggravated sexual assault of his thirteen-year-old stepdaughter. The stepdaughter testified that the assault occurred on Labor Day weekend of 1989, while her sister and mother were out of town and she was home alone with appellant. Other than the complainant and appellant, there were no other witnesses to the occurrence. Appellant, as was his constitutional right, chose not to testify at the trial.

Appellant complained that the final argument of the prosecuting attorney contained impermissible comments regarding his failure to testify at the guilt/innocence stage of the trial. At the time of the complained-of arguments, the prosecutor was discussing the evidence, which consisted of testimony from the child complainant and from a doctor. Defense counsel had argued that the complainant had a motive to lie and that the medical testimony did not support the accusation. In response, the prosecutor stated:

 

[PROSECUTOR]: You remember when I told you during voir dire, I said `the focus of this case, the issue is going to come down,' you know, I don't care how you cut it, the question is going to come down to `do you believe [the complainant].' Bottom line. Because the medical, I think, supports what she said, but it doesn't tell you who did it. And the only person that told you who did it was [the complainant]. (3)

 

[DEFENSE]: At this time, Your Honor, we would move for a mistrial upon the grounds in direct violation of Article 38.08, (4) prejudicial to the rights of this defendant--

 

The Court: Overruled.

 

[PROSECUTOR]: Judge I'm commenting--

 

[DEFENSE]: -- subject to my --

 

[PROSECUTOR]: Thank you, Judge.

 

The Court: Overruled.

 

[DEFENSE]: Subject to my objection -- motion, without waiving and insisting on it. I object to that last statement. Move the court to instruct the jury not to consider it for any purpose, upon the grounds it was, and was intended to be, an indirect reference to -- in violation -- matter in violation of Article 38.08.

 

The Court: All right. I'll overrule it.

 

Later during closing argument, the prosecutor asked the jury to believe the complainant, stating she had done everything a child should do in testifying and revealing what had happened to her. In response to an argument by defense counsel that no man would have stopped his actions and not had sexual intercourse the way the complainant had testified, the prosecutor stated:

 

[PROSECUTOR]: Why would a man stop. Well, maybe a man -- a stepfather -- felt guilty about what he was doing. Why would a man have a restraint if he went that far. Maybe he realized what he was doing was not right. There has been no evidence to come in and contradict the testimony of [the complainant].

 

[DEFENSE]: If the Court please. At this time I move the Court for mistrial upon the grounds counsel has--

 

[PROSECUTOR]: Judge, may I finish my response.

 

[DEFENSE]: --Violation of Article 38.08, and it's highly prejudicial. It's prejudicial [sic], the Defendant can't have a fair trial.

 

The Court: Mr. Garza, did you have something?

 

[PROSECUTOR]: I'd like to complete my statement, Judge.

 

The Court: Go ahead.

 

[PROSECUTOR]: There is no evidence to impeach [the complainant] as to the events that she told you about.

 

[DEFENSE]: We have --

 

[PROSECUTOR]: The only --

 

[DEFENSE]: We move --

 

[PROSECUTOR]: -- evidence --

 

The Court: Just a moment. Go head. [sic]

 

[PROSECUTOR]: The only evidence that has been brought to you, folks, has been this photograph, and the what-if questions to Dr. Nickel about the medical testimony.

 

[DEFENSE]: If the Court please. We would like to renew our motion -- our first one. And we'd make a second one on the last statement about impeachment, on the same ground each motion -- on the grounds of violation of Article 38.08 taken in context with the rest of his argument and our position. And so inflammatory and prejudicial, the Defendant can't receive a fair trial.

 

The Court: All right, Mr. Dunham. I will sustain your objection. And I will again instruct the jury, as I previously instructed, to disregard the last argument of counsel.

 

[DEFENSE]: Your Honor, you need to rule on my Motion for Mistrial. Each one.

 

The Court: And I will instruct the jury further as I did instruct them awhile ago, to remember about the law that it permits the Defendant to testify in his own behalf, but it provides his failure to testify shall not be considered, and you will not consider it or allude to it in any manner. And I believe that your objection should be sustained. And State's counsel will be instructed not to argue along that line.

 

[DEFENSE]: What's the Court --

 

The Court: I'll overrule your Motion for Mistrial.

 

[DEFENSE]: Both of my motions.

 

The Court: Well, the only Motion for Mistrial that I remember, I'm overruling.

 

[DEFENSE]: Well, I made both of them. The first one when he said it's undisputed. And the next one when he said there's no evidence to impeach.

 

The Court: All right. Well, I will overrule both of them.

 

In our prior decision, we held that the prosecutor's argument was improper and constituted an indirect comment on appellant's failure to testify in violation of his privilege against self-incrimination contained in article I, Section 10 of the Texas Constitution and article 38.08 of the Texas Code of Criminal Procedure. The Court of Criminal Appeals stated in its opinion remanding this case that this indirect comment is one which cannot be cured by trial-court instruction. That court has instructed us to perform a harm analysis without regard to the "curativeness" of the instruction given. We will proceed to do so.

 

1. Harm Analysis

 

We must determine if the prosecutor's indirect comment was harmful to appellant under the federal constitutional standard of Chapman v. California, 386 U.S. 18 (1967), or the Texas harmless error rule as propounded by Rule 81(b)(2) of the Texas Rules of Appellate Procedure, which provides, "If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or the punishment."

The harm analysis required by Rule 81(b)(2) has been held to apply to jury argument. See Orona v. State, 791 S.W.2d 125 (Tex. Crim. App. 1990); Griffin v. State, 779 S.W.2d 431, 433 (Tex. Crim. App. 1989). For some time now, the Court of Criminal Appeals has implicitly rejected the notion that a violation of article 38.08, or of a defendant's self-incrimination rights, constitutes reversible error, per se. Madden v. State, 799 S.W.2d 683, 699 n.28 (Tex. Crim. App. 1990).

In determining whether the impermissible argument is harmless, we are required to examine the error in light of the following factors: (1) the source and nature of the error; (2) the extent to which the State emphasized the error; (3) the probable collateral implications of the error; (4) the weight that a juror would probably place on such an error; and (5) the likelihood that the State would repeat the error should it be declared harmless. Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989). "The issue of harm must be determined from the facts of each individual case and resolved according to the probable effect of the argument upon the minds of the jurors, and in light of the existence of the other evidence in the record." Lopez v. State, 793 S.W.2d 738, 743 (Tex. App. 1990), pet. dism'd, 810 S.W.2d 401 (Tex. Crim. App. 1991).

The error here involves jury argument at the guilt/innocence phase of the trial. The case at bar was hotly contested and the credibility of the complaining witness was crucial. The defense had vigorously cross-examined the complainant and attacked her credibility. The complained-of argument violated a mandatory state statute, article 38.08, and the error was of constitutional dimension under both the federal and state constitutions. The comments were made during the prosecution's final rebuttal argument at a point in time when defense counsel could not respond and shortly before the case would go to the jury for deliberations. The offending argument was made repeatedly, either four or five times, over the sustained objections of defense counsel and admonitions of the trial court. In fact, the improper prosecutorial comments continued after an admonition by the trial judge that a mistrial might follow if further violations occurred. A review of the entire record and final argument leads us to the conclusion that the prosecutor improperly injected the issue of appellant's failure to testify into the trial. We are unable to conclude beyond a reasonable doubt that this error did not contribute to the jury's verdict of guilty.

Accordingly, the judgment of conviction is reversed and the cause is remanded for a new trial.

 

Mack Kidd, Justice

[Before Justices Powers, Jones and Kidd]

Reversed and Remanded

Filed: August 12, 1992

[Do Not Publish]

 

1. Bastani v. State, No. 3-90-092-CR (Tex. App.--Austin, Apr. 17, 1991) (not designated for publication).

2. Bastani v. State, No. 678-91 (Tex. Crim. App.--Mar. 11, 1992) (not designated for publication).

3. All emphasis supplied.

4. Tex. Code of Crim. Proc. Ann. art. 38.08 (1979) states, "Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause."