Good v. State

723 S.W.2d 734, 1986 Tex. Crim. App. LEXIS 885

• Court: Court of Criminal Appeals of Texas
• Decided: November 26, 1986
• Docket: 773-85
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury of the offense of burglary of a habitation. V.T. C.A. Penal Code, § 30.02(a)(1) & (d)(1) (1974). Punishment was assessed by the trial court at life imprisonment in the Texas Department of Corrections. In an unpublished opinion, the Austin Court of Appeals affirmed the conviction. Good v. State, No. 3-84-056-CR(T) (Tex.App.— Austin, April 10, 1985). We granted appellant’s pro se petition for discretionary review to determine whether the State made an improper and harmful jury argument during the guilt/innocence phase of appellant’s trial. We will reverse.

Appellant burgled the complainant’s home and restrained both the complainant and her 8 year old daughter by threatening them with a knife. Appellant then subjected the complainant to various forms of sexual abuse, removed money from her purse and fled. .

Both the complainant and her daughter identified appellant as the intruder. Appellant presented an alibi defense, testifying that he was at his sister’s apartment at the time of the offense. Appellant’s sister corroborated this alibi.

During his closing argument on guilt, the prosecutor made the following statement to the jury:

Another thing, it is not a contest of backgrounds. We don’t want you to convict anybody because he [appellant] hasn’t got a doctor’s degree or something. That doesn’t matter. But I tell you one thing: You don’t have to go to one day of school to sit over hear [sic] and listen to [the complainant] up there talking about all of the brutalities and indignities she went through. You don’t have to go through one day of school to show a little bit of concern and emotion. You observed his [appellant’s] demeanor in this courtroom and I submit to you it is a reasonable deduction that he would have reacted in some way, shown some concern. He has just sat there cold, unnerved, uncaring, just like he was like that morning [of the burglary]. That tells you a great deal about him. That has nothing to do with articulation or being able to speak or education. No, that has to do with the fact that he is guilty and he could care less this week that he is guilty and he could care less back on June 9th, 1983.

MR. PARKS [defense counsel] Judge, I will object to the State using a person’s orderly demeanor in a courtroom or attempting to use it as evidence against him. It is not evidence and I object to it. It is outside the record.

THE COURT: I will overrule your objection.

(R. III-400-401) (emphasis added). Later, the prosecutor again focused upon appellant’s demeanor:

We have heard from the evidence in this case what kind of man your are dealing with, and, you know, it was interesting that Mr. Parks [defense counsel] got up here and talked about, “It is terrible, it is tragic, it is brutal and we all feel sorry for [the complainant]. Anybody would be able to sympathize, would be able to have some concern for what she went through.” Why in the world didn’t we see any of that in his [appellant’s] demeanor over here? I mean he is conceding—

MR. PARKS: Judge, I will again renew my objection as to what demeanor he expects a person on trial to exhibit. I object to his using orderly disposition and demeanor in this courtroom against him.

THE COURT: The same ruling, and the Court will note your exception.

MR. JARVIS [prosecutor]: You know, you can be orderly and yet show something on your face.

(R. III-406-407).

The Court of Appeals, citing Langley v. State, 129 Tex.Cr.R. 254, 86 S.W.2d 755 (1935), held that the prosecutor had properly stated his impression of appellant’s demeanor on the witness stand, an observation that the jury had an equal opportunity to make. Good, supra, at 3-4. In addition, the Court of Appeals noted that the prosecutor may draw “reasonable, fair, and legitimate” inferences from the evidence, including inferences based upon the jury’s observations of appellant’s demeanor. Id., at 4.

Appellant agrees that “the jury was free to observe his demeanor while he testified as an aid in judging his credibility. However, to allow the State to attempt to attach probative force, at the guilt-innocence stage, to an accused person’s orderly demeanor and conduct while the complainant testifies is as harmful as commenting on a failure to testify, itself.” Appellant’s Petition, at 15. We agree.

Proper jury argument must fall within at least one of the following four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel or (4) plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Cr.App.1973). These narrow areas of argument were emphasized after this Court noted that an “alarming number of improper arguments” had been made, requiring numerous reversals of convictions. Id.1

The prosecutor’s jury argument in the instant case focused upon appellant’s demeanor during the guilt stage of the trial.² At first, the prosecutor focused upon the demeanor appellant exhibited during the complainant’s testimony, characterizing it as “cold, unnerved, uncaring.” The prosecutor then focused upon the demeanor appellant exhibited during his own testimony, characterizing it as unsympathetic. In both instances, the prosecutor argued that appellant’s demeanor inferred his guilt. We fail to see how such an argument falls within any of the acceptable categories of jury argument listed in Alejandro, supra.

(1) Summary of the Evidence

During jury argument, a party may allude to a testifying witness’ demeanor if the jury had an equal opportunity to observe the witness. Langley, supra. In Langley, supra, this Court found “no vice” in the following argument:

Gentlemen of the jury: I don’t know of any man whose face shows honesty and is as void of malice aforethought than Otto House’s [the victim]; on the other hand, I never saw a face that was as aggressive and was hunting trouble as that of defendant.

Id., at 757. This Court specifically noted that both the victim and the defendant had testified and that the jury had an opportunity to observe their faces as they testified. Id. (opinion on rehearing). As such, the witnesses’ demeanor was properly in evidence. Cf. Coyle v. State, 693 S.W.2d 743, 746 (Tex.App.—Dallas 1985) (Sparling, J., concurring) (wondering how an act of a defendant in open court gets into the record). Langley, therefore, only supports the narrow principle that a party may allude to, during argument, the demeanor of a testifying witness if the jury had the same opportunity to observe the demeanor during the witness’ testimony. See Reynolds v. State, 505 S.W.2d 265, 266-67 (Tex.Cr.App.1974) (explaining Langley, supra). Langley, supra, does not support the more sweeping proposition that a defendant’s nontestimonial demeanor is evidence subject to reference or allusion.

Appellant’s demeanor during the complainant’s testimony was not evidence subject to reference by the prosecutor. It was not offered into evidence through any legally recognizable method of proof. Allowing the State to summarize appellant’s non-testimonial demeanor impermissibly placed appellant’s demeanor before the jury through the prosecutor’s unsworn jury argument.³ This sort of argument constitutes no evidence at all. Cf. Irving v. State, 573 S.W.2d 5 (Tex.Cr.App.1978); Lopez v. State, 500 S.W.2d 844 (Tex.Cr.App.1973).

Admittedly, appellant’s demeanor during his own testimony was properly in evidence by the mere fact that it was a part of his sworn testimony. We can presume that the jury had an equal opportunity to observe his demeanor. Therefore, appellant’s testimonial demeanor could be alluded to by the State in final argument on guilt.

(2) Reasonable Deduction From the Evidence

The State referred to appellant’s demean- or and asked why appellant had not shown some sympathy for the sexual abuse suffered by the complainant. From that observation, the State inferred appellant’s guilt. The question then presented is: what logical connection exists between the absence of overt sympathy and the presence of guilt, particularly in view of appellant’s plea of not guilty and his presentation of an alibi defense?

A defendant’s nontestimonial demeanor is irrelevant to the issue of his guilt. See Wright, supra. By partially focusing the jury’s attention upon appellant’s nontesti-monial demeanor, the State invited the jury to convict appellant on the basis of his irrelevant nontestimonial demeanor rather than evidence of his guilt.⁴

Inferences drawn from testimonial demeanor, like inferences drawn from evidence generally, must be “reasonable, fair, and legitimate.”⁵ Vaughn v. State, 607 S.W.2d 914, 922 (Tex.Cr.App.1980) (approving prosecutor’s argument that witness’ crying expressed his fear of defendant). See also Felton v. State, 659 S.W.2d 482, 485 (Tex.App.—Dallas 1983, pet. ref’d) (approving prosecutor’s reference to witness’ “convincing” and “sincere” testimony). “However, where the chain of inferences stemming from such observations is too long and contains too many gaps, then verbalizing such impressions formed by observation is impermissible.” Jordan, supra, at 948 (disapproving prosecutor’s argument that he observed needle tracks on defendant’s arms).

Appellant testified that he could not have been the intruder into the complainant’s home because he had been at his sister’s apartment at the time of the offense. Thus it is not surprising that appellant would show no emotion or remorse throughout his trial. Appellant’s neutral conduct was entirely consistent with his alibi defense. For the State to argue that appellant was guilty because he presented no overt signs of sympathy is not a reasonable deduction from the evidence.

The State, of course, could comment upon the credibility of appellant’s alibi testimony. See Levingston v. State, 651 S.W.2d 319, 323 (Tex.App.—Dallas 1983, pet. ref’d) (per curiam). However, in the instant case, that was not the tenor of the State’s comments. Instead, the State’s comments directly encouraged the jury to find appellant guilty because, inter alia, he had not openly expressed sympathy for the complainant. Such a comment is an invitation for the jury to convict a defendant based on rank speculation of bad character rather than evidence of guilt. Cf. Wright, supra.

The prosecutor’s argument in Langley, supra, concerning the defendant’s demeanor contains the same defect. What logical connection exists between a defendant’s “aggressive” face and his guilt? Does a face that seems to be “hunting trouble” constitute evidence of guilt? Certainly not. In fact, such an argument comes even closer to asking the jury to convict a defendant because of his appear-anee or character rather than evidence of guilt. To the extent that Langley, supra, supports the conclusion that a reasonable inference of guilt may be drawn from neutral, orderly courtroom demeanor, it is overruled.

We find that the State’s argument in the instant case was improper. First, it focused on neutral or passive conduct that was not in evidence and compounded that error by using the neutral or passive conduct to make an unreasonable inference of guilt. Second, while a portion of the prosecutor’s argument alluded to conduct properly in evidence, it made an unreasonable inference of guilt from that evidence. Third, the argument was not invited. Appellant’s counsel merely acknowledged complainant’s tragic experience. By doing so, he did not invite the State to engage in unsworn speculation about appellant’s courtroom demeanor. Fourth, the argument plainly was not a plea for law enforcement.

An improper argument constitutes reversible error if, in light of the record as a whole, it is extreme or manifestly improper, or if it injects new facts, harmful to the accused, into the trial proceedings, or if it is violative of a mandatory statute. Brandley v. State, 691 S.W.2d 699, 713 (Tex.Cr.App.1985). We also note that a trial court, by overruling an objection to an improper argument, puts “the stamp of judicial approval” on the improper argument, thus magnifying the possibility for harm. Cf. Burke v. State, 652 S.W.2d 788, 790 (Tex.Cr.App.1983).

In the instant case, the prosecutor invited the jury to speculate upon appellant’s neutral or passive courtroom demeanor to find him guilty. That argument injected new facts into the proceeding and harmed appellant by encouraging the jury to find him guilty because of his attitude or character. In addition, the prosecutor unreasonably inferred guilt from appellant’s lack of overt sympathy for the complainant while he (appellant) was on the witness stand. That argument was manifestly improper because it encouraged the jury to base evidence of guilt upon appellant’s attitude or character. Given the fact that the trial court overruled appellant’s specific and timely objection, thus implicitly placing its imprimatur on the State’s argument, we are compelled to say that the argument constituted reversible error.⁶

The judgments of the Court of Appeals and the trial court are reversed, and the cause is remanded to the trial court.

W.C. DAVIS, J. concurs in result.

1 . Our concern over improper jury arguments has not diminished. See, e.g., Everett v. State, 707 S.W.2d 638 (Tex.Cr.App.1986); Lomas v. State, 707 S.W.2d 566 (Tex.Cr.App.1986); Robinson v. State, 701 S.W.2d 895 (Tex.Cr.App.1985); Gomez v. State, 704 S.W.2d 770 (Tex.Cr.App.1985).

2 . Appellant testified during guilt/innocence in the instant case, and the State’s improper argument came during argument on guilt/innocence. Therefore, no issue is raised relative to the State using appellant’s demeanor to make an improper comment on appellant’s failure to testify. Cf. Dickinson v. State, 685 S.W.2d 320, 323 (Tex.Cr.App.1984), (reference to defendant’s demeanor constituted comment on his failure to testify during punishment phase of trial). But see and cf. Jones v. State, 693 S.W.2d 406 (Tex.Cr.App.1985).

3 . We acknowledge that the jury may nonetheless have observed appellant’s general courtroom behavior and drawn some conclusions from that behavior.

[However,] [t]hat the jury witnesses the courtroom behavior in any event does not make it proper for the prosecutor to tell them, with the court’s approval, that they may consider it as evidence of guilt. What the jury may infer, given no help from the court, is one thing. What it may infer when the court in effect tells it that the courtroom behavior of the accused constitutes evidence against him is something altogether different.

United States v. Wright, 489 F.2d 1181, 1186 (D.C.Cir.1973).

4 . In Dickinson, supra, this Court suggested, through dicta, that the nontestimonial demean- or of a defendant might be subject to comment by the State if it indicates some sort of misbehavior. Id., at 323. While that proposition might have some validity during the punishment phase of the trial if properly introduced into evidence, see Jones, supra, it does not extend to the guilt phase of the trial. Use of a defendant’s behavior in the courtroom to establish guilt violates the fundamental requirement that a defendant be convicted on relevant evidence.

5 . In Jordan v. State, 646 S.W.2d 946, 948 (Tex.Cr.App.1983), this Court noted that arguments based upon a witness’ demeanor "must be reflected in the record or be of such common occurrence that its recognition requires no expertise.” That statement recognizes that some inferences, although perhaps reasonably derived from courtroom demeanor, may only be made by experts. See Reynolds, supra (disapproving prosecutor’s comment that defendant appeared to be "coming down from an addictive drug.’’)

6 . Not surprisingly, Judge Teague believes that the majority opinion does not go far enough by simply reversing the instant conviction. In his concurring opinion, Judge Teague confesses that his prior opinions were wrong to suggest that unruly testimonial demeanor was subject to comment, see Dickinson, supra, and Jordan, supra, and encourages the majority to give prosecutors “specific guidance” on arguing testimonial demeanor in the future.

Perhaps Judge Teague should focus some of his researching energies upon the historical principle of judicial restraint. He would find that appellate courts are not policy-making bodies that formulate broad legislative guidelines to satisfy an electorate. Instead, he would find that they are decision-making bodies, restricted to deciding properly preserved and raised questions of law based upon specific facts.

For example, this Court recently decided that the Self-Incrimination Clause in Article I, § 10, of the Texas Constitution was not offended when a defendant’s refusal to submit a breath sample was used against him at his trial. Thomas v. State, 723 S.W.2d 696 (Tex.Cr.App.1986). In his dissenting opinion to that decision, Judge Teague bemoaned the majority's failure to address the application of the Due Course of Law Clause in Article 1, § 19, of the Texas Constitution, while admitting that the defendant had not made an objection at trial or even raised the ground in his petition for discretionary review. Nonetheless, Judge Teague accused the majority of short-circuiting the defendant’s constitutional claim by not reaching the due process issue. Judge Teague can only write such undisciplined criticism by ignoring the restraint properly exercised by an appellate judge. The majority declines to join such unbridled decision-making.