Opinion issued November 5, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00262-CR ——————————— CASSANDRA YVETTE GARCIA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 482nd District Court Harris County, Texas Trial Court Case No. 175917901010
MEMORANDUM OPINION
A jury convicted Cassandra Yvette Garcia of delivery of a controlled
substance in penalty group one—cocaine weighing more than one gram and less than
four grams.1 The trial court sentenced her to ten years’ confinement but suspended
1 See TEX. HEALTH & SAFETY CODE § 481.112(a), (c). the sentence and placed her on two years’ community supervision. On appeal, Garcia
argues: (1) the jury could not have rejected her entrapment defense; (2) the State
made improper jury arguments and willfully violated a motion in limine; and (3) the
cumulative effect of the prosecutor’s misconduct denied her a fair trial.
We affirm.
Background
Garcia was charged with delivery of a controlled substance in connection with
an undercover operation that began at a bar in downtown Houston. Garcia was alone
at the bar when undercover officer S. Wakefield started a conversation. Wakefield
introduced Garcia to another undercover officer, C. Goodrich, and told Garcia that
Goodrich needed a confidence boost after breaking up with his girlfriend. Garcia
believed Wakefield was trying to set her up with Goodrich.
Garcia talked with Wakefield and Goodrich for some time before Wakefield
excused herself from the conversation, leaving Goodrich and Garcia alone.
According to Garcia, she and talked to Goodrich for about two hours, during which
Goodrich flirted with her, put his arm around her, and placed his hand on her thigh
once. But Goodrich did not remember any touching. And Wakefield saw none.
Goodrich told Garcia that he was a construction worker from Beaumont,
Texas and needed some “party favors” to stay awake for the long ride home. Garcia
suggested coffee shops nearby, but Goodrich insisted on something stronger.
2 According to Goodrich, Garcia then “tapped her nose and said that she had some
coke in her purse.” Goodrich understood Garcia’s reference to “coke” to mean
cocaine. And she handed him a baggie containing a “white powdery substance.”
Goodrich offered Garcia $40 for the baggie. Whether she accepted the cash
was disputed at trial. Garcia testified that she refused the money because she gave
Goodrich a “residue bag” that contained an “extremely small” amount of “coke.”
She claimed that she gave the money to the bartenders as a tip. Shortly after,
Wakefield returned to the conversation, and Goodrich showed her the baggie
containing the white powdery substance. Wakefield testified that Garcia knew of
this interaction and acted naturally about it.
Before leaving the bar, Garcia and Goodrich exchanged phone numbers.
Garcia said they also hugged, but Goodrich denied that. Later that night, they
exchanged text messages. Garcia thanked Goodrich for “tossing [her] some cash”
and asked if Goodrich wanted her to “snag” him something from her “guy,”
considering not much was left in the baggie she had given him. Goodrich responded
that the baggie was “plenty for now” and that he “owe[d]” her. Garcia asked, “What
do you have in mind?” Goodrich said that he could “think of a few things” but did
not want to “make her blush.” He then said that he was “passing out,” had to “wake
up in[] 3 hours,” and “hope[d] to talk soon.” Garcia responded that she would be
3 “waiting.” She believed that the next time she saw Goodrich, the two of them would
“probably hook up.”
Goodrich and Garcia texted again about three weeks later. Goodrich asked
Garcia to meet him and some friends for drinks at another bar. He asked Garcia if
she “could bring out some of that good [she] had last time too?” Garcia responded,
“Definitely. How much are you thinking?” Goodrich said an “8ball would do.”
Garcia said she needed to “double check with [her] guy.” She explained at trial that
she did not know how much an “8ball” would cost because she had never bought in
that quantity before.
Goodrich and Garcia talked on the phone after texting. Over the phone, Garcia
told Goodrich that what he asked for would cost $240. Later, Garcia texted Goodrich
that her dealer had the “goods” he requested, and she would meet him. Garcia
testified that she drove to pick up the cocaine from her dealer because, even though
she had never done something like that before, she believed that, if she delivered the
cocaine to Goodrich, he would have sex with her that night. And that was something
she wanted.
To prepare for the buy, Goodrich photographed the serial numbers of the
prerecorded buy money issued to him by the City of Houston. He and a group of
undercover officers were already at the bar when Garcia arrived. She met them on
the patio, and Goodrich introduced her to the group. Immediately after, Garcia
4 passed the cocaine to Goodrich under the table, and Goodrich gave her $240 of
prerecorded money. Garcia testified that Goodrich said he had a hotel room and
wanted her to stay the night. They stayed at the bar for about 40 minutes when
Goodrich asked Garcia to change locations and meet him at a different bar. Garcia
believed Goodrich was inviting her to a “cocaine and sex party” at the hotel.
A takedown unit was waiting outside the bar. As Garcia followed Goodrich
in her car, the takedown unit did a traffic stop, detained Garcia, and found the
prerecorded money in her car. One officer confirmed the money matched the
prerecorded bills. A detective received and tagged the bag of cocaine from Goodrich.
And a forensic analyst confirmed the substance was 3.4 grams of cocaine.
Garcia asserted entrapment as a defense. She claimed that Goodrich persuaded
her to commit the offense by convincing her that he wanted to have sex with her.
She had interpreted Goodrich’s text messages as implying feelings that he owed her
something more personal, like a physical relationship. She found Goodrich attractive
and their interaction and text messages flirtatious. She acknowledged that she was
“exceptionally vulnerable to men” because of previous bad relationships. And that
she was looking to make someone happy. She felt like Goodrich deceived her into
giving him cocaine by pretending to like her.
For his part, Goodrich acknowledged that his text exchanges with Garcia were
flirtatious and that a reasonable person might think he was interested in a
5 relationship. But he defended his actions as appropriate in his undercover role, which
required him to act in ways he normally would not as a uniformed officer.
The jury ultimately rejected Garcia’s entrapment defense and returned a guilty
verdict. Garcia appealed.
Sufficiency of the Evidence
In her first issue, Garcia contends that the evidence is legally insufficient to
support the jury’s rejection of her entrapment defense.
I. Standard of review and applicable law
“Some types of criminal conduct, such as the illicit drug trade, present difficult
issues of detection and prosecution because the crime is committed secretly between
willing participants.” Hernandez v. State, 161 S.W.3d 491, 497 (Tex. Crim. App.
2005). Thus, “law enforcement officers sometimes resort to ‘encouragement’ or
‘undercover sting operations’ to bring these crimes to light.” Id. But extreme forms
of law enforcement “encouragement” can induce an otherwise law-abiding person
to engage in criminal conduct that she would not otherwise have committed. Id. The
defense of entrapment recognizes the “competing goals of promoting effective law
enforcement by permitting undercover operations and preventing inappropriate and
coercive trickery, persuasion, or fraud by law enforcement officials.” Id.
It is a defense to prosecution that the defendant engaged in the charged
conduct “because [s]he was induced to do so by a law enforcement agent using
6 persuasion or other means likely to cause persons to commit the offense.” TEX.
PENAL CODE § 8.06(a). Conduct merely giving a person a chance to commit a crime
is not entrapment. TEX. PENAL CODE § 8.06(a); Rodriguez v. State, 662 S.W.2d 352,
355 (Tex. Crim. App. 1984). The criminal intent must originate in the law
enforcement agent’s mind, and the agent must induce the defendant to commit the
offense. Torres v. State, 980 S.W.2d 873, 875 (Tex. App.—San Antonio 1998, no
pet.).
Entrapment includes subjective and objective elements. England v. State, 887
S.W.2d 902, 913 (Tex. Crim. App. 1994). The subjective element requires evidence
that the persuasiveness of the police conduct induced the defendant to commit the
charged offense. Id. at 913 n.10. The objective element requires evidence that the
persuasion was such that it would cause an ordinarily law-abiding person of average
resistance to commit the offense. Id. at 914. For the objective element, prohibited
police conduct can include pleas based on extreme need, sympathy, pity, or close
friendship; offers of inordinate sums of money; and other methods of persuasion that
are likely to cause the otherwise unwilling person—not the ready, willing, and
anxious person—to commit a crime. Hernandez, 161 S.W.3d at 497 n.11; Ramos v.
State, 632 S.W.2d 688, 691 (Tex. App.—Amarillo 1982, no pet.). The amount of
persuasion used to induce an ordinary law-abiding person of average resistance will
depend on the particular facts of each case. Roberts v. State, No. 01-09-00561, 2010
7 WL 3934598, at *1 (Tex. App.—Houston [1st Dist.] Oct. 7, 2010, no pet.) (mem.
op., not designated for publication).
The defendant has the initial burden of producing a prima facie case of
entrapment. Hernandez, 161 S.W.3d at 497. Once evidence is produced, the burden
shifts to the State to disprove the defense beyond a reasonable doubt. Id. at 498. This
burden of persuasion does not require the State to produce evidence to refute
entrapment; it requires only that the State prove its case beyond a reasonable doubt.
See id. (stating that in burden-shifting context, entrapment behaves like
self-defense); Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).
Entrapment typically is a jury issue because its resolution depends mainly on
credibility assessments. See Hernandez, 161 S.W.3d at 499 (noting that entrapment
issues are appropriate for jury resolution “because the jury has a ‘particular claim to
competence’ on the question of what temptations would be too great for an ordinary
law-abiding citizen”).
The jury is the sole judge of the weight and credibility of the evidence. Brooks
v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The jury is free to accept or
reject all or any portion of a witness’s testimony. Hernandez, 161 S.W.3d at 500. A
jury’s guilty verdict is an implicit finding rejecting the defense. Saxton, 804 S.W.2d
at 914. In reviewing a jury’s rejection of an entrapment defense, we examine the
evidence in the light most favorable to the verdict to determine whether a rational
8 jury could find the elements of the offense beyond a reasonable doubt and find
against the defendant on entrapment beyond a reasonable doubt. See Braughton v.
State, 569 S.W.3d 592, 609 (Tex. Crim. App. 2018) (citations omitted).
II. The jury could reject Garcia’s entrapment defense
The jury found Garcia guilty of delivering a controlled substance in penalty
group one—cocaine—weighing more than one gram and less than four grams. See
TEX. HEALTH & SAFETY CODE §§ 481.102(3)(D), .112(a), (c). Garcia admitted
during trial that she committed an offense by delivering an “8ball” to Goodrich. The
State’s testing confirmed that the substance Garcia gave Goodrich was cocaine
weighing 3.40 grams. Considering the evidence in the appropriate light, we conclude
the jury could reasonably have found that neither the subjective nor the objective
element of entrapment was satisfied. See England, 887 S.W.2d at 913.
Garcia claimed that she was induced to commit the offense by Goodrich’s
attractiveness and flirtatious conduct. She explained—and Goodrich agreed—that
their initial conversation and subsequent text messages were flirtatious. According
to Garcia, Goodrich had put his arm around her, touched her thigh, and hugged her.
So when he texted that he “owed her” after their first meeting, she believed he was
hinting at a sexual relationship. And when he invited her out to have drinks a few
weeks later, she believed they would have sex that night. She viewed getting
Goodrich the cocaine he asked for as a prerequisite for having sex with him, which
9 was something she wanted. She testified that she was not in the business of selling
narcotics and had never done something like this before. In other words, she claimed
that Goodrich’s attractiveness and flirtatious conduct created in her such a strong
desire that she was induced to distribute cocaine.
Even if Garcia’s testimony were some evidence that Goodrich persuaded her
to commit the offense that could satisfy the subjective entrapment element, the jury
did not have to believe her. See Hernandez, 161 S.W.3d at 500. Garcia had cocaine
in her purse when she met Goodrich and gave him the residue bag in their first
meeting. Garcia had no previous relationship with Goodrich and had known him
only a few hours. In the text messages exchanged that same evening, she made an
unprompted offer to get Goodrich more cocaine. The jury reasonably could conclude
that Goodrich’s conduct merely gave Garcia the chance to commit a crime, but that
she did so of her own volition. See Ramos, 632 S.W.2d at 691 (where defendant had
provided undercover officer with drugs before, officer’s subsequent request for
drugs was not entrapment but merely affording defendant opportunity to commit
crime).
Additionally, the jury reasonably could have credited evidence that
Goodrich’s persuasion tactics would not have caused an ordinarily law-abiding
person of average resistance to commit the offense. See id.; see also Ramos, 632
S.W.2d at 691. Garcia’s testimony included admissions from which the jury could
10 infer that she is not a person of average resistance. For instance, Garcia agreed on
cross-examination that she was “exceptionally vulnerable” to men because of past
trauma and often felt pressure to do things to make others happy. But as the Texas
Court of Criminal Appeals has instructed,
[t]he hallmark of a purely objective test for entrapment is the hypothetical person. . . . The question becomes whether the persuasion used by the law enforcement agent was such as to cause a hypothetical person—an ordinarily law-abiding person of average resistance—to commit the offense, not whether it was such as to cause the accused [her]self, given [her] proclivities, to commit it.
England, 887 S.W.2d at 908. The jury could reasonably find that Goodrich’s
flirtations—in a single in-person conversation, some text messages, and a phone
call—would not induce an ordinarily law-abiding person of average resistance to
give a controlled substance to someone she desired but had known only a short time.
See id.; see also Hernandez, 161 S.W.3d at 499.
Considering all the evidence, the jury, as the sole judge of witness credibility,
could have found beyond a reasonable doubt that Garcia committed the offense
(which she admitted) and could have also disbelieved her testimony that she
committed the offense only because of entrapment. See Braughton, 569 S.W.3d at
609. We therefore hold that the evidence supports the jury’s verdict, including its
rejection of Garcia’s entrapment defense.
We overrule Garcia’s first issue.
11 Denial of Mistrial
In her second issue, Garcia contends that the trial court should have granted a
mistrial because of pervasive prosecutorial misconduct. Garcia asserts that
prosecutorial misconduct occurred when the prosecutor repeatedly violated a motion
in limine and then made several improper jury arguments “lambast[ing] defense
counsel, solicit[ing] the jury to render a verdict on facts not in evidence, and
encourag[ing] the jury to equate attractiveness . . . with entrapment.” Garcia further
asserts that such conduct sent a message to the jury that it could “ignore the law”
and follow a “shoot-from-the-hip mentality.” In cumulative effect, Garcia says, the
prosecutorial misconduct denied her a fair trial.
“Prosecutorial misconduct rises to a due-process violation when it is so
significant that it deprives a defendant of a fair trial.” Clark v. State, 365 S.W.3d
333, 338 (Tex. Crim. App. 2012). There is no “general test for all types of
prosecutorial misconduct.” Stahl v. State, 749 S.W.2d 826, 830 (Tex. Crim. App.
1988). Instead, courts examine such claims case-by-case, referencing three factors
that “provide a starting point for identifying reversible conduct.” Id. at 830–31. The
factors are whether (1) the defendant objected to the prosecutor’s conduct; (2) the
prosecutor’s conduct was a deliberate violation of an express court order; and (3) the
conduct was “so blatant as to border on being contumacious.” Id. at 831 (noting the
12 prosecutor’s improper conduct “indicate[d] a desire to impermissibly sway the
jury”). But these factors are neither exhaustive nor mandatory. Id.
A mistrial is the trial court’s remedy for improper conduct so prejudicial that
expenditure of further time and expense would be wasteful and futile. Hawkins v.
State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). We review the denial of a motion
for mistrial for an abuse of discretion and will uphold the ruling if it was within the
zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim.
App. 2010). In determining whether a trial court abused its discretion by denying a
mistrial, we consider: (1) the severity or prejudicial effect of the underlying conduct;
(2) any curative measures adopted; and (3) the certainty of the conviction absent the
misconduct. Hawkins, 135 S.W.3d at 84; Hernandez v. State, 454 S.W.3d 643, 649
(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
II. A mistrial was not required
Garcia did not make a specific objection to the alleged pervasive prosecutorial
misconduct at trial. See Clark v. State, No. 09-20-00083-CR, 2021 WL 5498115, at
*7 (Tex. App.—Beaumont Nov. 24, 2021, no pet.) (mem. op., not designated for
publication) (“Prosecutorial misconduct is generally an independent basis for
objection that must be specifically urged [at trial] in order for error to be
preserved.”); Hajjar v. State, 176 S.W.3d 554, 556 (Tex. App.—Houston [1st Dist.]
2004, pet. ref’d) (holding that appellant had not preserved complaint about
13 prosecutorial misconduct because he did not object on that theory at trial). Nor may
we consider in our analysis any prosecutorial conduct for which Garcia did not
preserve a complaint. Compton v. State, 666 S.W.3d 685, 731 (Tex. Crim. App.
2023) (holding that even prosecutorial misconduct that rises to the level of a due
process violation may be subject to procedural default and declining to consider,
either “separately or cumulatively,” unchallenged instances of alleged misconduct).
Thus, even if Garcia did not have to object on the specific basis of prosecutorial
misconduct, if she did not otherwise preserve error about the prosecutor’s actions,
we will not consider those acts.2 See id.
A. Motion in limine violations
The trial court granted a motion in limine preventing the State from
introducing testimony that the undercover officers believed the substances Garcia
gave Goodrich were cocaine without first approaching the bench. Garcia contends
that the prosecutor violated this motion at least three times when he offered
testimony from Wakefield and Goodrich that, based on their training and experience,
they believed the substances were cocaine. The first time was when the prosecutor
asked Wakefield whether, after she returned from the bathroom, “Goodrich showed
2 Certain types of unchallenged prosecutorial misconduct may be grounds for reversing a conviction because the defendant could not have known about the misconduct when it occurred, such as if the prosecutor knowingly used perjured testimony. See Johnson v. State, 169 S.W.3d 223, 229 (Tex. Crim. App. 2005). But Garcia does not allege that kind of misconduct. 14 [her] anything,” and she responded, “Yes, he showed me a clear bag with a white
powdery substance that I know to be powdered cocaine.” The trial court sustained
Garcia’s objection to violating the motion in limine, instructed the jury to disregard
Wakefield’s statement, and denied a mistrial. The second time was when the
prosecutor asked Goodrich whether, after Garcia told him that she had “coke,” he
believed based on his training and experience that what she handed him was cocaine.
Garcia objected before Goodrich answered, and the trial court sustained the
objection. Garcia did not ask for an instruction to disregard but moved for a mistrial,
which the trial court denied. The third time was when the prosecutor asked Goodrich
whether he still had “the drugs” when Garcia was traffic stopped. Garcia objected
and requested a mistrial, which the trial court denied.
We find no abuse of the trial court’s discretion in refusing to grant a mistrial.
On the one occasion an officer testified that the substance was cocaine, the trial court
instructed the jury to disregard. “Ordinarily, a prompt instruction to disregard will
cure error associated with an improper question and answer.” Ovalle v. State, 13
S.W.3d 774, 783 (Tex. Crim. App. 2000); see Coble, 330 S.W.3d at 292–93 (courts
presume jury will follow instructions). This is not a time when it appears the elicited
testimony was so clearly calculated to inflame the jurors’ minds or is of such a
damning character as to suggest that it would be impossible to remove the harmful
impression from the jurors’ minds.
15 Additionally, we cannot say that Wakefield’s answer and the prosecutor’s
other questions were so prejudicial to make the expenditure of further time and
expense wasteful and futile. In setting up the entrapment defense in his opening
statement, defense counsel acknowledged that Goodrich asked Garcia to “bring
some cocaine” and that she got it. And the jury heard other evidence that the
substances were cocaine. Testimony that lab testing confirmed the substance was
cocaine was admitted without objection. Garcia herself acknowledged that she had
cocaine when she met Goodrich, that she gave some cocaine to him then, and that
she later gave more cocaine to Goodrich when he asked for it.
Still, Garcia argues that even if the harm from the limine violations could have
been cured or was minimal, the prosecutor’s other misconduct exacerbated its effect.
In support, Garcia directs us to Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim. App.
1988). In Stahl, the prosecutor called the victim’s mother to the stand, knowing that
she was prone to emotional outbursts, and asked her to identify a photograph of her
dead son. Id. at 828. She burst into tears and yelled, “Oh my god. My baby. My
God. . . . May he rest in hell. May he burn in hell. Oh, my baby.” Id. The judge
instructed the jury to disregard, but the prosecutor “exacerbated” the impact by
repeatedly referring to the incident in closing argument. Id. at 830 (“The persistent
appeals in the face of adverse rulings speak loudly of the prosecutor’s desire to use
the outburst for inflammatory purposes.”). The prosecutor’s “deliberate” and
16 “persistent” conduct, “in direct contravention of prior rulings by the judge” showed
“a desire to impermissibly sway the jury.” Id. at 830–31. Indeed, the court of appeals
suggested that the Stahl prosecutor “actually orchestrated the original outburst.” Id.
at 826–27. Considering the cumulative misconduct, the Court of Criminal Appeals
could not say that the errors at trial were harmless. Id. at 832.
Garcia argues that, as in Stahl, the prosecutor here exacerbated what otherwise
might have been curable harm from the limine violations by making several
improper jury arguments and that the cumulative effect of such prosecutorial
misconduct deprived her of a “fundamentally fair” trial. We thus consider Garcia’s
preserved complaints of improper jury argument but, for the reasons below, find no
error to weigh, separately or cumulatively, in a harm analysis. See Compton, 666
S.W.3d at 731.
B. Improper jury argument
“The purpose of closing argument is to facilitate the jury in properly analyzing
the evidence presented at trial so that it may arrive at a just and reasonable conclusion
based on the evidence alone, and not on any fact not admitted in evidence.” Milton
v. State, 572 S.W.3d 234, 239 (Tex. Crim. App. 2019) (internal quotation omitted).
Proper jury argument generally falls within one of four areas: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) answer to argument of
opposing counsel; and (4) plea for law enforcement. Id. But “[t]he State is afforded
17 wide latitude in its jury arguments and may draw all reasonable, fair, and legitimate
inferences from the evidence.” Williams, 417 S.W.3d at 174. Determining the
bounds of proper closing argument is left to the sound discretion of the trial court.
Milton, 572 S.W.3d at 239.
Garcia contends that the State made five improper jury arguments when the
prosecutor
(1) attacked defense counsel personally by suggesting that he had “ridiculed [the undercover officers] for using taxpayer money to get cocaine off the streets”;
(2) urged the jury to render a verdict based on the State’s persuasiveness rather than proof beyond a reasonable doubt;
(3) suggested that she had the burden to prove the police conduct would have persuaded an ordinary law-abiding person to commit the offense rather than the State having the burden to disprove it;
(4) asked the jury to render its verdict based on how the law would apply in other cases; and
(5) encouraged the jury to equate attractiveness with entrapment when it asked whether the jury really wanted to say, through its verdict, that entrapment occurs “if the officer is just too attractive and flirtatious.”
We do not consider Garcia’s second, third, or fourth complaints of improper
jury argument because they were not preserved. See id. The “traditional and
preferred procedure” to preserve a complaint about improper jury argument for
appellate review is to (1) make a timely and specific objection, (2) request an
instruction to disregard if the objection is sustained, and (3) move for a mistrial if an
instruction to disregard cannot remove prejudice resulting from the argument. Cruz
18 v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); see TEX. R. APP. P. 33.1(a).
At minimum, however, the complaining party must show that she lodged an
objection during trial and pressed that objection to an adverse ruling. Hernandez v.
State, 538 S.W.3d 619, 622 (Tex. Crim. App. 2018); Johnson v. State, 233 S.W.3d
109, 114 (Tex. App.—Houston [1st Dist.] 2007, no pet.). An objection that differs
from the complaint raised on appeal does not preserve error. Wilson v. State, 71
S.W.3d 346, 349 (Tex. Crim. App. 2002); see Eno v. State, 2016 WL 335682, at *2
(Tex. App.—Dallas Jan. 27, 2016, no pet.) (mem. op., not designated for
publication) (defendant waived appellate review by making different argument
about allegedly improper jury argument on appeal than in the trial court).
Garcia did not object to the second argument. She did object to the third
argument. But the trial court sustained her objection, and she did not pursue her
complaint to an adverse ruling by asking for an instruction to disregard or a mistrial.
And her complaint on appeal about the fourth argument does not track her objection
at trial. That is, she did not object at trial that the prosecutor was asking the jurors to
impermissibly consider what they would do in other cases. So Garcia did not
preserve any error, separately or cumulatively, as to these complaints. See Compton,
666 S.W.3d at 731; Hernandez, 538 S.W.3d at 622.
Turning to the preserved complaints of improper jury argument—the first, that
the prosecutor should not have accused defense counsel of “ridicul[ing]” a witness,
19 and the fifth, that the prosecutor should not have asked whether the jury would acquit
“if the officer is just too attractive and flirtatious”—we find no error. Unlike in Stahl,
where the prosecutor emphasized the witness’s outburst by repeatedly referring to it
in closing argument, the alleged improper arguments here are unrelated to the
violation of the motion in limine prohibiting testimony about the officers’ beliefs
that the substance was cocaine. That is, Garcia does not complain that the harmful
effect of the limine violations was exacerbated by the prosecutor emphasizing the
officers’ beliefs in closing argument. Instead, she asserts that the improper jury
arguments, considered together with the prosecutor’s violation of the motion in
limine, gave the impression that the trial court’s orders could be violated and that
the jury could disregard the law in reaching its verdict. We disagree.
The State did not use closing argument to strike at Garcia over the shoulders
of her counsel or accuse counsel of bad faith when the prosecutor commented that
“the Defense [had] ridiculed [the State’s] officer for using taxpayer money in this.”
While there is no one fixed rule to determine what is improper jury argument, a
prosecutor runs a risk of improperly striking at a defendant over the shoulders of
counsel when the argument is made in terms of defense counsel personally and when
the argument explicitly impugns defense counsel’s character. See Mosley v. State,
983 S.W.2d 249, 259 (Tex. Crim. App. 1998); see also Gomez v. State, 704 S.W.2d
770, 772 (Tex. Crim. App. 1985) (holding prosecutor’s argument that defense
20 counsel was manufacturing evidence and thus suborning perjury was improper);
Lopez v. State, 500 S.W.2d 844, 846 (Tex. Crim. App. 1973) (holding prosecutor’s
statement that defendant and defense counsel were lying when they pleaded not
guilty was improper). The prosecutor’s comment was directed at defense counsel’s
questions on cross-examination, not defense counsel himself. It is proper for a
prosecutor to attack the defense’s argument rather than defense counsel. See Howard
v. State, 896 S.W.2d 401, 405 (Tex. App.—Amarillo 1995, pet. ref’d); see also Davis
v. State, 268 S.W.3d 683, 713 (Tex. App.—Fort Worth 2008, pet. ref’d)
(prosecutor’s reference to defensive theories as “machinations drawn up by the
defense attorney” was proper response to defensive theory, not personal attack on
defense counsel); Tilbury v. State, 890 S.W.2d 219, 224 (Tex. App.—Fort Worth
1994, no pet.) (statements about defense of necessity and “smoke and mirrors” were
not improper because they did not directly accuse defense counsel of lying or
encouraging defendant to lie; instead, statements were argument that defendant had
tailored his story to fit his defenses).
Likewise, the State did not “corrupt” the jury charge or encourage the jury to
render a verdict on impermissible grounds when the prosecutor commented, “Do
you really want to say that it’s illegal if the officer is just too attractive and flirtatious,
that these texts that you have seen are sufficient to render a not guilty verdict for
something that they actually did?” The prosecutor made this comment in rebuttal,
21 after defense counsel argued that the point of acquitting people based on entrapment
was to control police. It is proper for a prosecutor to argue that a jury should consider
the effects of its verdict on the community and law enforcement. Freeman v. State,
340 S.W.3d 717, 729 (Tex. Crim. App. 2011) (“[T]he State is not prohibited from
addressing the concerns of the community. For example, the State may argue the
relationship between the jury’s verdict and the general deterrence of crime. The State
may also argue that juries should deter certain crimes by their verdicts.” (citations
omitted)).
Considering the limine violations and the preserved complaints of improper
jury argument, we cannot say that the cumulative effect of the misconduct Garcia
attributed to the State deprived her of a fair trial.
We overrule Garcia’s second issue.
Conclusion
We affirm the trial court’s judgment.
Sarah Beth Landau Justice
Panel consists of Justices Kelly, Landau, and Rivas-Molloy.
Do not publish. TEX. R. APP. P. 47.2(b).