Borjan v. State

787 S.W.2d 53, 1990 Tex. Crim. App. LEXIS 38, 1990 WL 29460

• Court: Court of Criminal Appeals of Texas
• Decided: March 21, 1990
• Docket: 1055-86
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.¹

The appellant was found guilty of the offense of aggravated rape of a child and assessed a punishment of twenty-five years confinement in the Texas Department of Corrections. See § 22.021, Tex. Penal Code. A majority of a panel of the Fourth Court of Appeals reversed the appellant’s conviction on the basis of an improper jury argument during the punishment phase. Borjan v. State, 715 S.W.2d 94 (Tex.App. San Antonio 1986, pet. granted). The State’s argument was held to be “outside the record, called upon the jury to speculate about matters not in evidence, was calculated to arouse the passion or prejudice of the jury, and was extremely harmful and prejudicial.” Id., at 98. By way of three points of error, the State challenges the holding of the court of appeals.

The appellant was found guilty of having sexual intercourse with his twelve year old stepdaughter. During the State’s closing argument, the following transpired:

So I urge you, when you begin deliberating, when you go back there, think of the victims of these crimes, think of the ones who never come forward, who can’t stand to tell everybody about it.

[Defense counsel]: I object, I think it’s—

[State]: They have some rights.

THE COURT: Just a moment.

[Defense counsel]: I think it’s prejudicial and inflammatory and outside the record.

THE COURT: I overrule the objection.

[Defense counsel]: Note my exception.

THE COURT: You’ve got two minutes.

[State]: Thank you, Your Honor. This trial, in essence, has been Kathy’s day in court, 11 years old, 12 years old, 13 years old and back, she’s going to carry it with her for a long time, for the rest of her life.

Here is an individual who should know better, who took advantage of the situation, abused her, and you’re going to let him out? Please don’t do that. Let him know how you really feel about this. How much is it worth? This is Kathy’s day in court. Doesn’t she deserve something for this? For the ones who never come and tell you about it, who are too frightened — [emphasis added]

The appellant renewed his objection which the trial court overruled.

The court of appeals held that the State’s argument was improper, and in so doing wrote:

The prosecutor’s argument called upon the jury to speculate about other victims of rape. The jury could have properly inferred that appellant had raped others who had not reported the offense. The only logical deduction is that the jury was asked to assume facts not in evidence to reach a decision in the assessment of punishment. The test for determining whether the prosecutor’s argument mandates a reversal is based on the probable effect the argument had on the minds of the jurors.

Id., at 97-98.

The dissenting opinion contended that the State’s argument was a proper plea for adequate punishment and law enforcement. Furthermore, the dissent claimed that the State’s argument was a reasonable inference from the record because the record revealed that the appellant had threatened the victim with physical harm to secure her silence. In addition, a testifying doctor had explained that adolescent children have extreme difficulty discussing such things.

Initially, the State contends that the court of appeals’ decision is in conflict with the decision of this Court in Stone v. State, 574 S.W.2d 85 (Tex.Cr.App.1978).² The State also contends that the prosecutor’s argument was a reasonable inference drawn from evidence in the record.

It is well established that proper jury argument must fall within one of the following categories: (1) summary of the evidence; (2) reasonable deduction from the evidence; (3) in response to argument of opposing counsel; and (4) plea for law enforcement. Madden v. State, 721 S.W.2d 859, 862 (Tex.Cr.App.1986); Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973).

Initially, the State contends that the complained of argument was a proper plea for law enforcement relying on Stone, supra. A proper plea for law enforcement may take many forms, one of which is to argue the relationship between the jury’s verdict and the deterrence of crime in general. Shippy v. State, 556 S.W.2d 246, 257 (Tex.Cr.App.1977); Bowman v. State, 446 S.W.2d 320 (Tex.Cr.App.1969); Grant v. State, 162 Tex.Cr.R. 444, 286 S.W.2d 422 (1956). As the State notes, this Court has permitted the prosecutor to argue that juries should deter specific crimes by their verdict. See Wilson v. State, 605 S.W.2d 284, 287 (Tex.Cr.App.1980) (robbery); Porter v. State, 601 S.W.2d 721, 723 (Tex.Cr.App.1980) (robbery); Bacon ¶. State, 500 S.W.2d 512 (Tex.Cr.App.1973) (robbery); Arocha v. State, 495 S.W.2d 957, 959 (Tex.Cr.App.1973) (sale of controlled substance); Owens v. State, 168 Tex.Cr.R. 88, 323 S.W.2d 260, 261 (1959) (murder); Urteago v. State, 169 Tex.Cr.R. 160, 333 S.W.2d 133 (App.1960) (possession of marihuana); Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App.1974) (DWI); Payne v. State, 164 Tex.Cr.R. 306, 298 S.W.2d 151, 154 (App.1957) (DWI); White v. State, 162 Tex.Cr.R. 337, 284 S.W.2d 902, 903 (App.1955); (liquor law violation); Bowman, supra (rape); Walthall v. State, 594 S.W.2d 74, 83 (Tex.Cr.App.1980) (obscenity); Goocher v. State, 633 S.W.2d 860 (Tex.Cr.App.1982) (obscenity).

The State may also argue the impact of the jury’s verdict on the community. See, e.g., Adams v. State, 685 S.W.2d 661, 671 (Tex.Cr.App.1985); Haynes v. State, 627 S.W.2d 710, 714 (Tex.Cr.App.1982). The State may not, however, argue that the community or any particular segment of the community expects or demands either a guilty verdict or a particular punishment. Cortez v. State, 683 S.W.2d 419 (Tex.Cr.App.1984) and eases cited therein; Goocher v. State, supra.

The State, in its brief, sets out several examples in which the State has been permitted to argue the impact of the jury’s verdict on narrower groups making up the “community.” For example, this Court has permitted arguments on behalf of law enforcement officers who were the victims of a criminal offense. See, e.g., Rhodes v. State, 450 S.W.2d 329, 331-332 (Tex.Cr.App.1970). This Court has also approved of arguments on behalf of the rights of highway drivers subjected to drunken drivers. Strahan v. State, 172 Tex.Cr.R. 478, 358 S.W.2d 626 (1962). Likewise, this Court has permitted arguments on behalf of women and children. Stone v. State, supra; Carver v. State, 510 S.W.2d 349, 355-356 (Tex.Cr.App.1974); Anderson v. State, 486 S.W.2d 569, 572 (Tex.Cr.App.1972); Myers v. State, 468 S.W.2d 847, 848-849 (Tex.Cr.App.1971). These types of arguments are permissible in that the jury is reminded of the effect that their verdict may have on the rights of a particular segment of the community.

It is well established that a plea for law enforcement is one of the four categories of proper jury argument. Landry v. State, 706 S.W.2d 105 (Tex.Cr.App.1985). Consistent with that proposition, in Stone v. State, supra, this Court held the following argument to be a proper plea for adequate punishment and law enforcement:

‘... She will still have the scars of some sort that will bring her back to that point in time when she was in that trailer and now she knows or has some idea of the impact of what went on and she knows how it was bad and wrong, and I’m sure it’s embarrassing to her, and don’t you know it will always embarrass her if someone will know what happened to her back when she was a little girl at the hands of this defendant.

Now, that’s sad it really is, and you should think about her when you’re assessing your punishment. Let’s think about her and think about the other children that live in this community that are subjected to this type of conduct by others and use your common sense.’ [Emphasis added]

Id., at 90.

The appellant agrees that the argument in Stone, supra, although limited to a particular segment of the community, was correctly classified as a proper plea for law enforcement. The appellant, however, distinguishes the argument in Stone, supra, from the argument in the present case. The appellant contends that the prosecutor in Stone, supra, clearly referred to “other” children who were subjected to sexual abuse committed by those “other” than the defendant. By doing so, the prosecutor in Stone, supra, properly asked the jury to consider the impact of their verdict on the narrower class of children within the community. The appellant claims in this case that the State did not narrow its argument sufficiently, but instead invited the jury to speculate that other children had been victimized by the appellant but were too afraid to come forward.

The law provides for, and presumes a fair trial, free from improper argument by the prosecuting attorney. Dickinson v. State, 685 S.W.2d 320, 322 (Tex.Cr.App.1984); Richardson v. State, 158 Tex.Cr.R. 536, 257 S.W.2d 308 (1953). An improper argument constitutes reversible error when in light of the record as a whole it was extreme or manifestly improper, viola-tive of a mandatory statute, or injected new facts harmful to the accused into the trial proceedings. Phillips v. State, 701 S.W.2d 875, 892 (Tex.Cr.App.1985); Vineyard v. State, 131 Tex.Cr.R. 476, 100 S.W.2d 362 (1973).

Thus, a prosecutor is clearly prohibited from making reference during final argument to extraneous offenses for which the accused is not currently on trial. Melton v. State, 713 S.W.2d 107 (Tex.Cr.App.1986). Accordingly, even if the extraneous offenses are admissible during trial, the prosecutor cannot ask the jury to assess punishment for these collateral crimes and add such penalty to the punishment being assessed. Brown v. State, 530 S.W.2d 118 (Tex.Cr.App.1975); Klueppel v. State, 505 S.W.2d 572 (Tex.Cr.App.1974).

Likewise, a prosecutor may not use closing argument to get evidence before the jury which is outside the record and prejudicial to the accused. Everett v. State, 707 S.W.2d 638, 641 (Tex.Cr.App.1986); Jackson v. State, 529 S.W.2d 544, 546 (Tex.Cr.App.1975). This Court has long held that reference to facts that are neither in evidence, nor inferable from the evidence is improper. Johnson v. State, 698 S.W.2d 154, 166 (Tex.Cr.App.1985); Fuentes v. State, 664 S.W.2d 333 (Tex.Cr.App.1984). Usually such improper references are designed to arouse the passion and prejudices of the jury and as such are highly inappropriate. Campbell v. State, 610 S.W.2d 754, 756 (Tex.Cr.App.1980); Steam v. State, 487 S.W.2d 734 (Tex.Cr.App.1972); King v. State, 141 Tex.Cr.R. 257, 148 S.W.2d 199 (Tex.Cr.App.1941). The effect of such an argument is to ask the jury to determine the punishment of the accused based on collateral matters which the prosecutor improperly interjected by way of his jury argument. Everett, supra, at 641.

Thus, a prosecuting attorney is permitted in his argument to draw from the facts in evidence all inferences which are reasonable, fair and legitimate, but he may not use the jury argument to get before the jury, either directly or indirectly, evidence which is outside the record. Jordan v. State, 646 S.W.2d 946, 948 (Tex.Cr.App.1983).

The question which we must answer is whether the State’s argument in the present case is similar to the argument deemed proper in Stone, supra, or whether the argument was outside the record and called upon the jury to speculate about other crimes that the appellant may have committed against other children. An answer to this question will rest solely upon a logical interpretation of the State’s argument and the context within which it was used.

In other words, the issue which we must resolve is whether the prosecutor’s reference to the “victims of other crimes” and “the ones who never come and tell you about it” was an appeal to the jury to consider the impact of their verdict on sexually abused children in general, or whether, the prosecutor’s argument called on the jury to consider either the existence of other adolescent victims of the appellant or to assess the appellant further punishment because other children have been victimized.

In resolving this issue it is necessary to analyze not only what the prosecutor said but also what he did not say. When the prosecutor used the phrase “these crimes” it is apparent that he was referring to the victims of sexual child abuse. If he had said “this crime” he would have obviously been commenting upon other possible victims of the appellant. However, by phrasing the comment as he did, and in essence referring to the nature of the offense rather than a specific offense, he was classifying other sexual abuse victims as those that “never come forward....”

In the latter portion of this argument we are confronted with a closer question. When the prosecutor commented: “For the ones who never come and tell you about it, who are too frightened — ” was the prosecutor referring to other possible victims of the appellant or, again, an abused class within the community? Examining the statement in light of what he had previously said and taking it in context it appears that he was referring in general to those sexual abuse victims within the community. Thus, the prosecutor was not directing his comments or implicitly alluding to other possible victims of the appellant.

It must be noted that in neither comment did the prosecutor directly refer to the appellant. His comments were directed to the community in general. Consequently, the State is correct that his comments constituted a proper plea for law enforcement and although somewhat ambiguous are not particularly distinguishable from the argument that was approved by this Court in Stone v. State, supra.

The court of appeals’ judgment is therefore reversed. It appears that the other points of error raised by the appellant in the court of appeals were rejected in its original opinion; consequently, a remand to that court is unnecessary. Therefore, the judgment of the trial court is affirmed.

CLINTON, J., concurs in result. WHITE, J., not participating.

1 . This opinion was prepared by Judge M.P. Duncan, III, prior to his death and is adopted as the opinion of the Court.

2 . In the second ground for review, the State also contends that the decision by the court of appeals is in conflict with a previous decision of that court in Gonzales v. State, 706 S.W.2d 764 (Tex.App.—San Antonio 1986).

While recognizing that a conflict of decisions within a single court of appeals is not specifically enumerated as a reason for granting review, the State argues that the enumerated reasons are non-exclusive and that this conflict is of the same "character of reasons" as those enumerated in Rule 200, Tex.R.App.Pro. While this may very well be true, the apparent "conflict” in this case does not rise to a level necessitating review by this Court. After further examining our decision to grant review on this point, we find that our decision to hear the case for this reason was improvidently granted.

We note that the State’s motion for rehearing before the Fourth Court of Appeals en banc had previously been denied.